1984 P Cr (PLP)

11. At the trial, all the accused denied the accusations levelled against them. Shakarallah accused explaining his involvement in the case made the following statement: - "I was a tenant of Inayat father of the deceased since 1971. 1 was regularly tendering the rent. On 30th November, 1975 the said Inayat had expired and his legal heirs wanted to enhance the rent for which they pressed me and their demand not being genuine, I refused to enhance the rent. They refused to accept the rent at the previous rate I moved an application before the Senior Civil Judge, Lahore, for the deposit of rent in the Bank for which I was granted the per mission and since then I started depositing the rent in the State Bank 9f Pakistan regularly. The complainant party being aggrieved, filed an ejectment petition against me which was pending in the Court of Ch. Muhammad Aslam Rent Controller, Lahore. The complainant having knowledge that their case was weak and finding that my ejectment was not possible under the ordinary circumstances, got me falsely involved in this case so as to get me ejected from the premises in question. After my arrest, they forcibly occupied the house in question and also took away my belongings. My wife moved an application to Martial Law Authorities, Lahore. On their intervention in August 1977, part of my belongings were restored to my wife from the complainant and their family. On the day of occurrence, I was present in the house of my second wife Mst. Rani at Paki Thathi, Qureshi Street, Lahore, wherefrom I was' arrested on 30th June, 1977.1 am a sick and old person and weak in health. I tender original receipts Exhs. DF/1, DF/2 to DF/12 showing the payment of the full rent by me in the State Bank of Pakistan in respect of the house on rent with me." Athar Shah accused made the following statement in his defence "I have been falsely implicated due to enmity. I produce my state ment iii writing giving out the details of my false implication in the case. I also produce certified copy Exh. D. G. of the statement of Arif Shah my real elder brother. In the ejectment case filed by Rashida Begum, mother of the deceased, and others against Shakarullah co-accused. I also produce certified copy Exh. D. H. from Medico-Legal register of Inquiry Department of the Mayo Hospital from 24th February, 1977 to 29th October, 1977 about entry dated 28th June, 1977 of my accompanying Waqar Shah injured accused to the hospital. I also produce another certified copy Exh. D. J. of the Register C. O. D., Mayo Hospital, Lahore, incorporating entry of 28th June, 1977 to show that Waqar Shah co-accused had been taken to the hospital in an injured condition and treated at 5-10 p. m. Shahid alias Shada accused explained his involvement in the case as under: "I have been implicated due to the complainant party's enmity with my family and I produce a statement in writing setting forth the reasons of my false implication. I also produce certified copy Exh. D. K. of judgment dated 27th May, 1960 passed by Ch. Ali Muhammad, Magistrate, Section 30, Lahore, in the case titled "State v. Inayat Muhammad and others" under section 323/324, etc., P. P. C. wherein Inayat, father of the deceased, was one of the accused and Siddique and Iqbal given up P. Ws. of this case were tried with Inayat aforementioned. Munawar Khurshid, a given up P. W. of this case, was also one of the co-accused in the said case. Haji Muhammad Abdullah, my grandfather, was injured in the said case and my father. Muhammad Rafique, appeared as prosecu tion witness against Inayat and others. The said case ended in conviction of the accused and the sentence was maintained upto the High Court and the accused had to undergo the sentences." Waqar Shah accused denied the prosecution allegations and stated that the police had initiated proceedings under section 107/150, Cr. P. C. on 13th March, 1978 against me and 18 other persons on the report of Mst. Rashida Begum, mother of the deceased. Explaining his injuries he made the following statement: - "I was not injured during the' occurrence at the hands of Wajid Saleem P. W. as alleged by the prosecution nor was I present there at the relevant time. An hour earlier, Shahid accused was suddenly attacked by Rashad Saleem deceased with a weapon called kungfoo (a weapon used in the Judo Karatey). Shahid accused accepted by jumping aside while the kungfoo struck me in the head. The said weapon was round in- shape. I was imme diately rushed to the Mayo Hospital, Lahore, by Athar Shah accused for treatment. My arrival in the hospital is mentioned in Exh. D. H. and I was treated as mentioned in Exh. D. J. and was also referred for admission in the hospital in the West Surgical Ward on 28th June, 1977 at 5.10 p. m., but before my shifting to the said ward, I was arrested by the police from Casualty Outdoor Department, Exhs. D. H. and D. J. relate to my arrival and first aid treatment in the Mayo Hospital, Lahore. Muhammad Aslam alias Secretary accused stated that the deceased and his family were inimically disposed towards Shahid co-accused, with whom he was on visiting terms. His name was substituted later on in place of Muhammad Aslam son of Hakim Noor Din, who was originally named in the F.

1. R. Khadim Hussain accused explained his involvement in the case as under :- `I submit typed written statement setting forth the reasons of my false implication. I also submit a certificate Exh. D. M. issued by Shahid Abbas my employer. I also submit a marriage invitation card from my maternal-uncle for participating in the Walima ceremony of my maternal-uncle Zakir Ali Khan, on the date of occurrence 1. e. 28th June, 1977. 1 was present in the house of my maternal-uncle in that connection when I was called by a person who was in possession of a chit from' my employer Shahid Abbas directing me to accompany him to the spot. Consequently I accompanied him to the site and when I was about to restore the electric supply, certain persons who were present there started quarrelling with one another, upon which I slipped away alongwith my instruments. On the same evening at 8.00 p. m. I was taken away by the police from the house of my maternal-uncle and was kept in Police Post Krisen Nagar for about two days and then 1 was put behind the bars on 30th June. 1977. The police asked me to become a witness in the case, but I refused, on which I was involved."

12. None of accused except Khadim Hussain examined any evidence in defence. Khadim Hussain accused examined Syed Shahid Abbas D. W. 1 and Muhammad Afzal Khan D. W.

2. Shahid Abbas D. W. 1 stated that he ran an electric shop at Sanda Road, National Town, Lahore. Khadim Hussain accused had been working as an Electrician with him for the last three years. On 28th June, 1977 at about 4.30 or 4.45 p. in. an unknown customer came to him for netting right his electric connection. He gave him a chit for contacting his servant Khadim Hussain .accused for the said purpose, at 29-Usman Road, Krishen Nagar, where he had gone for the installation of light at- a marriage party. At about 8-30 p.m. in the same night he learnt about the arrest of Khadim Hussain in the case. .

13. Muhammad Afzal Khan, Reference Incharge, Daily Imroze, Lahore, proved copy Exh. D. W. 2/A of the Imroze dated 29th June, 1977 incorporating a news at Exh. D. W. 2/B about the occurrence in question. In cross-examination he stated that he could not say anything about the correctness or otherwise of the report Exh. D. W. 2/B.

14. The learned trial Judge, relying upon the ocular account, the medical evidence and the recoveries, convicted and sentenced five persons tend acquitted one, as stated in para. I above.

15. The motive pressed in this case is not some incident anterior in point of time with the incident as promoting the appellants to commit the crime in instance, but an incident contemporaneous with the occur rence, namely, the desire of the appellants to get the electricity connec tion of one of their members restored, namely, of Shakarullah, appellant, who was a tenant of Wajid Salim and Shahid Pervaiz P. Ws. and whose electricity had been cut off a day or two earlier than the date of incident as Shakarullah appellant had not paid his electricity bills for the last six months. In these circumstances, motive as an antecedent incident, which prompted all the appellants to take part in the occurrence is not there. The case is one, which has to be decided on the basis of ocular testimony alone. At best Shakarullah, appellant, against whom Wajid Salim P. W. 6 and Shahi Pervaiz P. W. 7 etc., had filed a case of eviction, can be stated to W inimically inclined against the said witnesses and the deceased, but the animosity cannot be stretched any further.

16. The ocular account in this case is furnished by Wajid Salim p. W. 6, Shahid Pervaiz P. W. 7 and Shafiq P. W.

8. Wajid Salim P. W 6 and Shahid Pervaiz P. W. 7 are the brothers of the deceased, whereas Shafiq P. W. 8 is a first cousin of the deceased. Muhammad Siddique and Muhammad lqbal, paternal-uncles of the deceased, and one Amar Raza, A maternal-aunt's son of the deceased, were given up. According to the consistent testimony of the said three eye-witnesses, they with Rashad Salim deceased and Amir Raza (given up P. W.) were playing carom in the baithak of their house. Some, one knocked the door of baithak and Wajid Salim P. W. 6 went out and saw all the five appellants and the acquitted Accused present outside. Shakarullah, appellant, was tenant of Wajid Salim P. W. 6 and Shahid Pervaiz P. W.

7. He lived in the first storey of their house as their tenant. The entrance to the storey occupied by Shakarullah, appellant, Was situate facing Gali No. 10, whereas the entrance to the ground floor portion occupied by Wajid Salim P. W. 6 and Shahid Pervaiz P. W. 7 was in Gali No.

11. Athar Shah, appellant, inquired from Wajid Salim P. W. 6 as to why they had disconnected the electricity connection of Shakarullah, appellant. Wajid Salim P. W. 6 told him that Shakarullah, appellant, had not paid his electric bills to them for the last six months and if he was prepared to make the payment, they would restore the electric supply. On this, Athar Shah, Shahid and Waqar Shah, appellants, told that they had not come for the payment of the electric bills, but for getting the same restored. In the meantime, Shahid. Pervaiz P. W. 7, Rashad Salim deceased, Shafiq P. W. 8 and Amir Raza (given up P, W.) had come out from the baithak on hearing the sound of voices outside. Athar Shah, appellant, tried to forcibly enter the deohri where the electric meter was installed. Rashid Saleem deceased stopped him. Shakarullah, appellant, was empty-handed, Athar Shah and Aslam appellants, and Khadim Hussain, acquitted accused, carried knives, while Shahid and . Waqar Shah appellants, carried daggers resembling Chhuris. Shakarullah, appellant, caught hold of Rashad Salim deceased by his arms * from behind and asked his companions to teach the prosecution witness a lesson for disconnecting the electric supply. Athar Shah appellant inflicted a knife blow on the deceased, which hit him in the abdomen, followed by Waqar Shah and Shahid, appellants, who also inflicted injuries on the deceased, which hit him on his abdomen and left arm. Shahid P. W. 7 tried to rescue his brother, but Aslam, appellant, and Khadim Hussain acquitted accused, inflicted injuries on him on his left buttock and left flank. Wajid Salim P. W. 6 tried to rescue his brother, but Waqar Shah, appellant, tried to attack him, but he escaped unhurt, Wajid Salim P. W. 6 picked up a brickbat from the spot and in self-defence hurled it at Waqar Shah, appellant, hitting him on the head. The occurrence was still in progress, when. Muhammad Siddique and Muhammad lqbal, the uncles of Wajid Salim and Shahid Pervaiz P. Ws., were seen near the spot, who also saw the occurrence. The appellants and the acquitted accused then left the place issuing threats. In cross-examination Wajid Salim P. W. 6 admitted that they had disconnected the electric supply to the floor of Shakarullah, appellant, only a day before the occurrence, that the said action was taken without the permission of the Rent Con troller who was seized of their ejectment case against the said appellant and that he did not know if there was any condition about the payment of electricity dues by Shakarullah, appellant, in rent deed executed by him. He further admitted that he did not see the appellants and the acquitted accused carrying weapons when they came to the spot and that the incident arose after they had stopped the appellants and to acquitted accused from forcibly restoring the electric supply. He confirmed that the electricity meter was installed near the staircase in their deohri on the ground Boor near their entrance facing Gali No.

11. He admitted that he knew Athar Shah, appellant, from childhood, because he lived near his house, and also his elder brother, Azhar Shah. He admitted that Arif Shah, a brother of Athar Shah, appellant, had appeared as a witness for Shakarullah, appellant, in the ejectment proceedings filed by him against the said 'Shakarullah. He denied that Waqar Shah and Shahid appellants had passed near his house an hour before the occurrence, that his brother Rashid Salim deceased had attacked Shahid, appellant, with Kungfoo, that the said weapon had missed Shahid, appellant, who climbed over the wall of the house of Chaudhri Tufail, but struck Waqar Shah, appellant on his face, that Waqar Shah, appellant, fell down on receiving the injury and that Shahid, appellant, then went away, brought Athar Shah, appellant, and, with his help, removed Waqar Shah, appellant, to tee Hospital. In further cross-examination he denied that Muhammad Abdullah, grandfather of Shahid, appellant, had been beaten by Inayat (father of Rashid Salim deceased) and his brothers Muhammad Siddique and Muhammad lqbal (given up P. Ws.) and some other, that Shahid, appellant, and his father Rafique had appeared as P. Ws. Against the said accused, that Siddique and Inayat accused were sentenced under section 323/324, P. P. C. by the Magistrate, which sentence was upheld right through the High Court up to the Supreme Court. He further admitted that he had given the parentage of Aslam, appellant, as Haji Noor-ud-Din in the F. I. R., but he corrected the same in his supplementary statement. He denied the suggestion that he had falsely implicated Aslam appellant. He admitted that he knew him since two years prior to the occurrence. He also admitted that some newsmen had met him in the hospital on the day of occurrence, when he had narrated the incident to him and that a report was also published in the newspaper on the following day. On being shown the copy of the Daily Imroz newspaper dated 29th June, 1977, he stated that this news-item pertained to the occurrence in question. Shahid Pervaiz P. W. 7 in cross-examination stated that prior to the occurrence they had .no quarrel or dispute with Khadim Hussain, acquitted accused, nor he had visited his house, nor he had been on any terms with him. He further admitted the suggestion that Khadim Hussain, acquitted accused, was an electrician by profession and that he had never sided with Shakarullah, appellant, on any previous occasion. He also stated that he was given blows simultaneously with the deceased and that the deceased was given the first injury by Khadim Hussain, appellant, whereafter he and deceased were injured almost simultaneously. To further questioning, he denied the suggestion that he had implicated Khadim Hussain, acquitted accused, so that he could not come forward with the true version. He further admitted that Waqar Shah and Athar Shah, appellants, were related inter se, but had no relationship with the other appellants, that prior to the present occurrence all of them had never quarrelled with him or his brothers, nor sided with Shakarullah, appellant, in the ejectment petition filed by them and that it was not within his knowledge if they had ever joined with Shakarullah, appellant, in the commission of any offence prior to the incident. He denied the suggestion that an hour before the occurrence Rashid Saleem, deceased, bad injured Waqar Shah, appellant with the handle of kungfoo, which blow was actually aimed at Shahid, appellant, but had hit Waqar Shah. He also admitted that after the present occurrence they had lodged a report against Acha Shuker Walla, brother-in-law of Shakarullah, appellant, and other relatives of the present appellant for security proceedings to be initiated against them. 'He denied the suggestion that when the occurrence took place, Athar Shah, appellant, had taken Waqar Shah, appellant, to the Mayo Hospital and thus both were not present at the spot at the relevant time. He further denied the suggestion that they were annoyed with Shahid, appellant, over Shahid's father getting his father convicted in a criminal case. He admitted that he was examined- by the police at 10 p .m. on the evening of occurrence and he knew at that time the location of the injuries on the deceased, but did not state to the police about the seat or location of the injuries inflicted by Shahid, appellant, or Waqat Shah, appellant, to the deceased: Muhammad Shafique P. W. 8 admitted in cross-examination that he had learnt through his father that Abdullah, grandfather of Shahid, appellant, had got his father, uncle and other relatives convicted in a criminal case before the present occurrence. He could not recollect if he had pointed out the various places concerning the place of occurrence at any time to the police or to the draftsman during the investigation. He admitted that in his police statement he had not stated that Shakarullah appellant had caught the deceased from behind. He admitted that in the ejectment proceedings filed by Wajid Saleem P. W. 6, and others, Arif, a brother of Athar Shah appellant, had appeared as a witness on behalf of Shakarullah, appellant. He denied the suggestion that an hour before the occurrence the deceased had attacked Shahid, appellant, with Kungfoo, as a result of which Waqar Shah, appellant, was injured, that Athar Shah, appellant bad taken Waqar Shah, appellant, to the hospital for treatment or that they wanted to involve Arif Shah in the case, but since he was out of Lahore on that date, therefore, they implicated his brother Athar Shah, appellant, with Waqar Shah, appellant. 17-22. Before appraising the ocular testimony of these eye-witnesses certain other factors, which have some relevancy need to be stated. From the evidence of Ch. Hamid-ud-Din, Draftsman P. W. 4, be went to the spot at 11.00 p. m. on 28th June, 1977 and though the prosecution witnesses, whose names stand mentioned in the note to his site plan, were actually present at the spot at the time of spot inspection, yet they did not show the places where each of the appellants were present before or. at the time they inflicted injuries to Rashid Saleem deceased or Shahid Pervez P. W.

7. He admitted that he had not shown the particular place where the occurrence took place. However, he produc ed the rough site plan Exh. P. F/II, which he prepared at the spot and from which he had prepared the fair site plans Exh. P. F. and Exh. P. F/I. He admitted that the names of the accused were mentioned in his rough site plan Exh. P. F./II and that they were Shakarullah, appellant, Muhammad Tufail, Waqar Shah, appellant. Azhar Shah, Muhammad Aslam, appellant, Arif Shah, Shahid, appellant, and Khadim Hussain, acquitted accused. He admitted that he recorded the name of Aslam twice and at the second place he had scored off that name and substitu ted it with that of Shada, appellant. He further admitted that he bad mentioned the number of the accused as six in the fair site plan Exh. P. F./I on being instructed by the police. He further affirmed that the rough site plan Exh. P. F./II was prepared at the instance of the police and on the pointing out of the witnesses. He also admitted that .he had noticed some bricks lying at the place of occurrence, which he had shown in the rough site plan Exh. P. F./11. Amanat Ali H. C. P. W. 11 deposed that he had been entrusted with the summons Exh. P. N. for the service of Dr. lqbal Tabassum M. O. Casualty Ward, Mayo Hospital, Lahore, and that the Statistical Officer of the said hospital had -noted vide his report Exh. P.N./1 that the said doctor had left service and that his whereabouts were not known. Muhammad Hussain, clerk P. W. 12 in his evidence stated that he was familiar with the handwriting and signature of Dr. Iqbal Tabassum who had been posted as Medical Officer in the Casualty Ward at Mayo Hospital, Lahore. He proved the medico-legal report Exh. P. O. previously scribed by Dr. Iqbal Tabassum. Since no questions were put to him to prove the entries made by Dr. Iqbal Tabassum on 28th June, 1977 relating to entry No. 36947 in the original C. O. D. register and entry No. 36947 in the original inquiries Register the case was re manded back to the learned Sessions Judge, Lahore for the said entries to .be proved either by primary or secondary evidence and the said witnesses to be treated as court witnesses. Accordingly Muhammad Hussain, Record Keeper. P. W. 12, was recalled, as the Process Server, Shaukat Ali, Constable, C. W. 1, proved before the Court that Dr. Iqbal Tabssum was still abroad and there was no likelihood of his coming back in the near future: Muhammad Hussain. P. W, 12 accordingly identified the hand-writing and signatures of Dr. lqbal Tabassum on documents Exhs. D. H. and D. J. regarding the entry bearing No. 36947, dated 28th June, 1977 made in the original register of C. O. D. and the original register of inquires. According to Exh. D. J., which is the entry made in the Casualty Outdoor Register, Waqar Shah is shown as having received medical attention at the hands of Dr. Iqbal Tabassum at 5.10 p. m. on 28th June, 1977 in respect of an injury on the head. According to Exh. D. H. which is the extract from the medico-legal register of the Inquiry Department of Mayo Hospital, the name of Waqar Shah, appellant, is shown as patient- attended by Dr. Iqbal Tabassum on 28th June, 1977 and the names of Athar Shah and Shahid alias Shada, appellants, is shown as companions accompanying Waqar Shah at the time of treatment.

23. In the light of the ocular testimony as discussed in paras. 16 to 22 above, a number of matters stand out clearly, namely that on the date of incident i. e. 28th June 1977, Waqar Shah, appellant, was examined by Dr. Iqbal Tabassum at the Casualty Outdoor Section of Mayo Hospital at 5.10 p. m. which is proved by the extract from entry Exh. D. J. from the Casualty Outdoor Register of the Mayo Hospital, At the time of the medical examination of Waqar Shah, appellant Athar Shah and Shahid alias Shada, appellants, were also present at the Mayo Hospital, as is proved by the entry Exh. D. H., which is an extract from the Medico-Legal Register of the said hospital. According try the F. I. R. Exh. P. G. the present incident took place in Ram Nagar at 5-15 p. m. almost three miles away from Mayo Hospital, Lahore. According to the said F. I. R. Exh. P. G. Shakarullah, Shahid alias Shada, Waqar, Aslam alias Secretary and Athar Shah, appellants and Khadim Hussain, acquitted accused were mentioned as the assailants relating to the present case. On the same day at 6.10 p. m. Dr. lqbal Tabassum also medically examined Shahid Pervaiz, P. W. 7, at- the Mayo Hospital vide Medico-Legal Report Exh. P. O. According to the testimony of Shahid Pervaiz P. W. 7, a newsman of Daily "IMROZE" met him in the hospital, to whom he narrated the incident which account Exh. D. W. 2/B was published in the Daily "IMROZE" newspaper Exh. D. W. 2/B on 29th June, 1977. According to the said report Exh. D. W. 2/B, the occurrence took place "BAAD DOOPAR" and Waqar Shah, Aslam, Shahid, Khadim Hussain, Fida Hussain Azhar Shah, etc., were mentioned as the assailants. The names of Athar Shah, Shakarullah and Shahid alias Shada appellants were not given in the said news item, though Athar Shah appellant, was the first to have inflicted the knife blow on Rashid Salim, deceased, hitting him in the abdomen and Shahid alias Shada, appellant, was supposed to have attacked him later with chhuri. At 11-00 p. m. the same day when Ch. Hamiduddin. Draftsman P. W. 4 was taken to the spot for preparation of site plan, he prepared a rough site plan Exh. PF/II in which he showed Shakarullah, Waqar Shah, Muhammad Aslam and Shahid, appellants, Khadim Hussain acquitted accused, and Muhammad Tufail Azhar Shah and Arif Shah as the assailants. He admitted in cross-examination that he had recorded the name of Aslam twice in the rough site plan Exh. PF/11 and that at the second place he had secured out his name and substituted it with that of Shahid appellant. The cumulative effect of these facts goes to show that the story, as put forward by the prosecution, is not true and correct. According to the case of the prosecution, the occurrence occurred on 28th June, 1977 at 5-15 p. m. and the assailant were Shakarullah, Shahid alias Shads, Waqar Shah, Aslam alias Secretary and Athar Shah appellants and Khadim Hussain, acquitted accused. However, documents Exh. D. H. and D. J. show that Waqar Shah Athar Shah and Shahid alias Shada, appellants were at the Casualty Outdoor Department of Mayo Hospital the same day at 5.10 p.m. at a distance of al most three miles from Ram Nagar, where the incident took place. Consider ing that Waqar Shah suffered a lacerated wound on the head, which is also obvious from the medico-legal report Exh. P. E. prepared on 28th June, 1977 at 8.45 a. m. when Waqar Shah was formally sent by the police for medical examination it appears that Waqar Shah, appellant was inured much earlier than 5.10 p.m. on 28th June, 1977 and that in the said earlier incident which took place that day, Athar Shah and Shahid alias Shada appellants were very likely with him. The participation therefore, of Waqar Shah, Athar Shah and Shahid alias Shada appellants, in the crime in instance on 28th June, 1977 at 5-15 p. m. is open to doubt. Further, when Shahid Pervaiz, injured P. W. 7, gave the names of the assailants to the Reporter of Daily "IMROZE" on 28th June, 1977 some time after 6-10 p. m., he did not mention the names of Athar Shah. Shakarullah and Shahid, appellant, though Athar Shah, appellant, was the first to have inflicted the fatal chhuri blow in the abdomen of Rashid Salim and Shahid appellant, followed soon after by inflicting another chhuri blow on the deceased. Strangely Shahid Pervaiz P. W. 7 also mentioned the names of Azhar Shah and Fida Hussain as the assailants, who were not even named by his brother, Wajid Salim complainant P. W. 6 in the F:

1. R. Exh. P. G. In short, it appears that in his narrative to the Press Reporter he had omitted two names given by his brother and added two more himself. But if this is not enough, Ch. Hamiduddin, the Draftsman P. W. 4, who prepared the rough site plan Exh. PF/II the same day at 11.00 p. m. and was given the names of the assailants by the complainant party, did not record the presence of Athar Shah, appellant though he recorded the presence of others, and also added Muhammad Tufail, Azhar Shah and Arif Shah as the assailants. It is not denied by Shahid Pervaiz P. W. 7 that he was examined by the police at 10.00 p. m. on the night of occurrence. It would not be out of place, therefore, to state that till 10.00 p. m. that day, the police and the complainant party were deliberating as to who were the assailants and who were not and who were to be named in the F. I. R. It is true that the F. I: R. Exh. P. G. purports to be recorded at Police Station Old Anarkali at 6-30 p. m. but in view of the facts already submitted, it would appear that the same was recorded some time near mid-night or on the next day and that till then the parties were deliberating about the assailants to be named. From a tota resume of the facts submitted above and particularly the fact that Waqa Shah, Athar Shah and Shahid alias Shada appellants; were in May Hospital on 28th June, 1977 at 5.10 p. m., the story, as put forward by the prosecution, does not appear to be the true story and that it appear that these three appellants were involved in an incident having perhaps something to do with Rashid Salim deceased and that two incidents took place, one much before 5.10 p. m. and the other a 5.15 p. m. In any case, the facts disclose that there is suppression and distortion of the true story. Certain other facts brought on the record tend to show that such suppression and distortion could have been attempted. It is admitted that Shakarullah, appellant, is the brother of one Aslam Shukarwala alias Achha Shukarwala and that an attempt was made to include Aslam Shukarwala in the rough site plan Exh. PF/II and that is why the Draftsman mentioned the, name of Aslam twice amongst the assailants in his site plan, but scored out the second one at a later stage. Further. Arif Shah, the elder brother of Athar Shah, appellant, had given evidence Exh. D. G. before the Rent Controller in favour of Shakarullah, appellant, in the eviction case instituted by the mother of Rashid Salim, deceased against the said Shakarullah, appellant. Still further, Shahid alias Shada, appel lant and his father, Muhammad Rafique, had appeared as prosecution witnesses in a case instituted against Inayat (father of the deceased and his brother Siddique (father of Shafique P. W. 8) and Iqbal (both given up P. Ws,) and Munawar Khurshid, in which case Inayat, father of Rashid Salim, and Siddique, father of "Shafique P. W. 8. were sentenced under section 323/324/34, P. P. C. Again Waqar Shah, appellant is a nephew of Ch. Tufail, who is uncle of Shahid alias Shada, appellant and Aslam alias Secretary, appellant, was stated to be on visiting terms with Shahid alias Shada appellant, as both hail from Burewala. Though the case as originally put forward by Wajid Salim P. W. 6 in F. I. R. Exh. P. G. was that Athar Shah, appellant, was the first who inflicted the fatal blow on the abdomen of the deceased, followed by .Waqar Shah and Shahid alias Shada, appellants, who inflicted injuries on him on his abdomen and left arm, yet Shahid Pervez P. W., in cross-examination stated that the deceased was given the first injury by Khadim Hussain, acquitted accused, and that he and the deceased were injured simultaneously. The wound on the head of Waqar Shah, appellant, was found by Dr. Tahir Anees P. W. 3 to have been caused more probably by a club or dang rather than a brickbat, which belies the story of the prosecution that he suffered the injury by brickbat. The statement of Waqar Shah, appellant, under section 342, Cr. P. C. that he suffered the said injury, not in the incident, but an hour earlier at the hands of Rashid Salim, deceased, by a weapon called kungfoo, is not without significance. In view of these facts, it appears that the prosecution has not come forward with the true story, that there is material suppression and addition, that an attempt has been made to add or remove certain persons as assailants and that who has been truly added or removed, is anybody's guess. The prosecution story cannot, therefore, be implicitly relied upon. In these circumstances, it is difficult for me to pick and choose any person with any degree of care and safety as the assailant or perpetrator of the crime in question. The benefit of doubt must, therefore, go to all the appellants.

24. In view of my findings as regards the oral testimony, I need not go into any further question.

25. For the foregoing reasons, all the four appeals (Cr. A. 150/79, Cr. A. 152-79, Cr. A. 165-79 and Cr. A. 223-179) are accepted and the convictions and sentences of all the appellants are hereby set aside. Athar Shah, appellant, is in Jail. He shall be set at liberty forthwith, if not required in any other case. Fines, if any recovered from the appellants, shall be refunded to them. Shahid alias Shada, Waqar Shah, Shakarullah and Muhammad Aslam alias Secretary, appellants, are already on bail. M. A. K. Appeals accepted.