P L D 1985 Lahore 18 (PLP)

????S. 302-Recovery-Lantern produced by complainant nearly three months after occurrence-Article of lantern not mentioned in F.

1. R., nor in inquest report, nor did complainant say in Court that he had ever produced same before Police-Held occurrence being of a dark night, lantern appeared to have been introduced later and lower Court bad not relied on same rightly in circumstances.-[Recovery]. (j) Penal Code (XLV of 1860) S. 302 - Murder of three women who were sleeping in their home with two minor children-Only male member of house had gone out Male member of house lodging F. I. it. next day-Such complainant changing motive and accused, giving another motive and a second set of accused persons-Complainant lastly in Court coming up with one of motives and another set of accused, third in series-Not only complainant waivered but Investigating Agency seemed not to have probed mater deeply and efficiently having been misled by complainant-Investigation-Requirement of-Children present at time of occurrence being natural witnesses not examined straight away-No worthwhile, reliable, or plausible evidence, much less proving beyond reasonable doubt, to warrant conviction of ac used forthcoming-Court not coming to be `sure' that case against accused had been proved beyond reasonable doubt-Conviction and sentence of death of accused not upheld in circumstances. In view of the evidence on record the Court could not come to be "sure" that the case against the appellants has been proved "beyond reasonable doubt". It appeared clearly from the evidence on the record that the three women with two minor children were in their home in the night. The only male member had gone to see a mela. Next day noon he lodged the F.

1. R. giving one motive and one set of accused. He changed the motive and the accused, giving another motive and a second set of accused persons. Lastly and in the Court, he cane up with one of the motives and another set of accused, third in the series. Not only he waivered but the investigating agency seems not to have probed the matter deeply and efficiently. It was the duty of the State to investigate. Investigation does not mean going about as led. It requires inquiring into, finding out. looking into and searching for all facts relevant to the unearthing of the crime. Leisurely or half-hearted efforts never lead to successful results. Search of the truth is always a painstaking endeavour. Triple murder should not have been satisfied with. Presence of children was natural. They should have been examined straight away-whatever worth their examination may have been, in the absence of other evidence coming forward. Callous conduct of the complainant in giving one story and one set of accused--who were innocent according to himself when he gives different story and names different accused persons, and then gong on to the third, coupled with careless and inefficient investigation, has led to a situation that three women have lost their lives and culprits not brought to book in accordance with law. Its efficacy is rendered useless. In this situation, the accused cannot, simply because they have been brought forward as accrued at the last, sentenced to death either. Before any person can be .ordered to be hanged, his guilt has to be proved beyond reasonable doubt. there was no worthwhile, reliable, or plausible evidence, muchless proving beyond reasonable, doubt, to warrant the conviction of the accused. Therefore, notwithstanding the heavy feeling that three ladies have lost their lives for nothing, High Court after having pondered and thought over the matter thoroughly could not "come to be sure" that the case against accused had been proved beyond reasonable doubt. Consequently, the reference was rejected, the appeal was allowed, accused acquitted of the charges, and revision for enhancement of compensation was dismissed. Sardar Muhammad Ishaque Khan for Appellants. Najamuz Zaman, A. A.-G. for the State. Date of hearing : 9th October, 1984'.. ABDUL SHAKURUL SALAM, J.-Four appellants, Amir Khan and Muhammad Khan sons of Rehmat, their sister's husband Suba Khan son of Ahmad Khan and cousin Fateh Khan son of Lal Khan were convicted of the murders of Mst. Nur Begum and her two daughters Mst. Shah Jahan and Mst. Nur Johan and sentenced to death, fine of Rs. 5,000, in default 3 years' R. I. and ordered to pay compensation to the heirs of the deceased a sum of Rs. 5,000, in default 2 years' R. 1. each by Mr. Manzoor Ahmad Kamboh, Additional Sessions Judge, Attock vide order dated 18-6-1981. The learned trial Court referred the case for confirmation of sentences of death under section, 374, Cr. P. C. It was registered as Murder Reference No. 128 of 1981. The convicts filed appeal vide Criminal Appeal No. 133 of

141. The complainant filed Criminal Revision No 165 of 1981 for enhancement of the amount of compensation. A learned Judge ordered it to be heard alongwith the appeal. All these matters were disposed of together-resulting in acquittal of the appellants vide short order dated 8. 10-1980, detailed reasons being as under;

2. Mehr Khan, P. W. 11, husband of one and father of the other two deceased, lodged F.

1. R. No. 91 at Police Station Fateh Jang, District Attock at 12-30 noon on 14-9-1980 saying that his behak (accommodation on the land) was at a distance of 200 yards from Gadda (the nearby village). Nearly at a distance of 100 yards, is the behak of his brother's son Suba Khan. He had gone there KuftanN-ela (Isha time). It would be about 8-00 p.m., leaving his wife Nur Begum, daughters Shah Jahan and Noor Jahan, Aurangzeb aged 8 years, maternal grandson and Reshman aged 7/8 years, maternal grand-daughter. At about Sehriwela (about 3/4 a.m. , he and his nephew Suba Khan heard the sound of fire and they ran to is behak and saw (1) Lai Khan with gun, (2) Noor Muhammad with pistol, sons of Summandar Khan, (3) Sher Gul son of Gulab with gun, (4) Ahmad Khan with hatchet and (5) Akbar Khan with Danda entering in the courtyard of the house. His wife and daughters ran into the house (room). His grandson and daughter hid under the cot. The accused with their respective weapons of fire, hatchet and danda were injuring _ in the room his wife Nur Begum, and daugaters Shah Jahan and Noor Jahan. On noise and his nephew's raising alarm, all the five accused with loud lalkaras said that if (they) came near (they) too would be killed. He and his nephew out of fear hid in the maize (field). We on the accused's lalkaras recognized them. When the accused had killed they ran. away towards the east. He and his nephew went and saw his wife Nur Begum, daughters Shah Jahan and Nur Jahan lying dead smeared with blood. After the occurrence, leaving the nephew with the corpses, he went to the behak of Atta Muhammad Khan of Kot Fateh Khan to inform him in his Kothi and told him the entire occurrence, who sent him to the Police Station for lodging report. Tne motive was that Akbar Khan accused s daughter Mst. Noor Bbari in liaison was abducted by one Muhammad Ashraf son of Muhammad, in which his daughter Shah Jahan was also an accused. This case was to be beard on 17-9-1980 at the Rest House Fateh Jang by the Sessions Judge Attock. On account of this grievance, all the accused in concert had murdered his wife, Nur Begum, daughters Shah Jahan and Nur Jahan. Action be taken.

3. The above F.

1. R. Exh. P. H. was recorded by Muhammad Aksar, Muharrir H. C. on 14-9-1960. Thereafter, Abdul Ghafoor S. L/S. H: O. P. W. 13 reached the spot. He prepared inquest reports of Mat. Shah Jahan, Mst. Nur Begum and Mat. Nur Jahan, Exh. P. K., P. L. and P. M. and also injury statements, Exh. P. N., Exh. 1'. O. and Exh. P. P. respectively. He sent the dead bodies for post-mortem examinations. He collected blood-stained earth from the spot vide memo. Exh. P.

1. He also collected one empty cartridge .12 bore (Exh. P. 13), one cartridge of .32 bore (Exh. P. la), one empty cartridge of 7 mm (Exh. P. 15) and three dead cartridges '32 bore (Exh. P. 16/1-3) vide Memo. P. J. He also got site plans, Exh. P. D./1 and P. D./2 prepared and recorded red notes thereon.

4. At the trial, Mohr Khan, P. W. 11 said that "I came back from mela at about sehriwela time. t saw in my house that my wife M,t. Nur Begum and my daughters Mst. Shah Jahan and Mst. Nur Jahan were put to death. Mst. Reshman and Aurangzeb P. Ws were in the state of coma, therefore, they could not narrate the story of occurrence to me at that time". When he went to report the matter to Malik Atta Muhammad and was met on the way by Fateh Khan and Amir Khan, they told him that murderers were Akbat Khan, Lal Khan, Ahmad Khan, Noor Muhammad and Gulzar. But he had said, they were not. However, when he met Malik Atta Muhammad, the latter "pressurised" him about the aforesaid persons and sent his own servant Muhammad Khan alongwith him to the P. S. for registration of the case according to the wishes of Malik Atta Muhammad". Then, be gave the motive as follows; "Amir Khan used to come in my house alongwith Fateh Khan accused for the hand of my daughter Mst. Shah Jahan. I alongwith Mst. Shah Jahan were not willing for the said relation. Due to the above- mentioned motive all the accused persons with their common intentions caused the murders of my wife and daughters. Fateh Khan is the maternal-cousin of Amir Khan accused. Muhammad Khan accused is the brother of Amir Khan accused. Suba Khan is the husband of the sister of Amir Khan and Muhammad accused."

5. Mehr Khan, P. W. 11 was duly confronted with the F.

1. R. and his supplementary statement, Exh. D. C. Learned counsel for the defence submitted that the complainant has repudiated the F. I. R. thus exculpating the first set of accused, implicated different set of accused in the supplementary statement i.e. Baba Haider etc. (called second set) and has now implicated the appellants in Court. He has ceased to be an eyewitness as alleged in the F.

1. R. and has said that Mat. Reshman and Aurangzeb "were in the state of coma", and, "therefore, they could not narrate the story of occurrence to him at that time". This was to explain away the non-naming of the accused appellants in the F. I. R. In his supplementary statement, he had said that on his asking, Aurangzeb had told him that there were six (assailants). One of them was baba Haider with long hair and beard. Rest he (Aurangzeb) could not identify. Learned counsel submitted that the complainant also changed the motive from abduction of Mst. Noor Bhari daughter of Akbar simpliciter, first to the asking of land by Jahana and then, to the asking of the hand of Mst. Shah Jahan by Amir Khan and Fateh Khan appellants.

6. Shah Nawaz, brother of Mehr Khan, appeared as P. W.

7. He had identified the dead bodies. He was confronted with his statement under section i6l, Cr. P. C. Exh. D. A. recorded on 18-9-1980 which was in the same strain as that of Mehr Khan that when he came from mela, he found the three women dead ; Aurangzeb said that one of the ;five assailants was Baba Haider and others he could not. identify, the second set of accused as called by the learned counsel for the appellants, and details about the earlier murder, abduction etc.

7. It may, however, be noted that both Mehr Khan P. W. 11 and his brother Shah Nawaz, P. W. 7 denied the making of the aforesaid statements Exh. D. C. & D. A. though they were duly confronted with the same and relevant portions thereof. Second point note) may be that according to the statement of the Investigating Officer, Abdul Ghatoor S. L/S. H. O., P. W. 13, notwithstanding that the statements under section 161, Cr. P. C, showed that the complainant had ceased to be the eye-witness and was saying that about the murders, he was told by Aurangz--b that the latter had seen baba Haider and five others being armed and committing murders, the Investigating Officer did not record the statement of Aurangzeb. This he should have. The learned Assistant Advocate-General submitted that the Investigating Officer did not consider this important because Aurangzeb was a minor. The third point worth noticing is that Aurangzeb when he appeared as P. W. 9 said that ` the S. 1. of Fateh Jang had come to the spot on the following day of the occurrence. I had then got recorded my statement before the S. I. After that my statement was not recorded by any other Policy Officer. After that I never appeared before any Police Officer." But the Officer, S. 1. of Fateh Jang Abdul Ghafoor P. W. 13 denied having reoccurred the statements of Aurangzeb and Reshman. Riaz Ahmad (P. W. 12), Inspector C.

1. A. Staff' took over the investigation on 25-9-1980. ' The latter said that he recorded the statements of Aurangzeb and Reshman under section ! 61, Cr. P. C. on 29.9-1980. Aurangzeb has denied making such a statement on 2y-9-1980, though he had said that his statement was recorded the day following the occurrence which fact was denied by the then Investigating Officer Abdul Ghafoor, P. W.

13. Mst. Reshman had denied making statement before the Police ever, though she was duly confronted with her statement Exh. D. B. recorded by Riaz Ahmad, Inspector C. I. A. P. W. 12.

8. A word may be said about all these statements. Mehr Khan, complainant P. W. 11. contrary to the contents of F. I. R. got recorded by him, has ceased to be an eye-witness. This is his position in Court as' well. Shah Nawaz, his brother P, W. 7 was never an eye-witness. As regards motive deposed to by Mehr Khan, P. W. 11, he has shifted his position at different stages of the case. In the F. I. R. it was in relation to abduction of one Mst. Noor Bhari in which his daughter Shah Jahan (deceased) was a co-accused. Later on, it was said to be the desire of his second son-in-law Jahan Khan to be given land like the other son-in-law, Ahmad &ban. Lastly, it is that Fateh Khan and Amir Khan, two of the appellants, wanted the hand of his daughter Mst. Shah Jahan (deceased). This is in addition to his denial of the statement made before the Police with which he was duly confronted. In these circumstances no reliance can be placed on the testimony of the witness at all nor about the motive. So is the) position of his bother Shah Nawaz. Absence of motive or its proof in Court may not be fatal to the prosecution case if it is otherwise proved beyond reasonable doubt. Therefore, attention at this stage may be adverted to the eye-witness account.

9. It is furnished by Aurangzeb P. W. 9 and Mst. Reshman, P. W.

10. The former stated to be aged 10 years at the time of recording of his statement in Court i.e. on 9-6-1981. The occurrence had taken place in the night between 13/14-9-1980 i.e. some nine months earlier. The witness then would be about 9 and a quarter years old Mst. Reshman P. W. 10 gave her age in Court as 4 years. The learned trial Judge observed that "Apparently she looks to be six years old". At the time of occurrence, she would be anything from three and quarter to 5 and quarter years of age. Thus both of them were minor at the time of the occurrence. The learned trial Judge took precaution, as required by section 118 of the Evidence Act, 1872, to find out as to whether the children were competent to understand questions and give rational answers. He asked pertinent questions and having received right answers, held the children to be competent witnesses and then examined them.

10. Before judging their veracity and weight to be attached, reference to principles enunciated by Courts over the years may be made. More so because the learned counsel for the appellants has laid much empriasis on these. The first case quoted by him is Abbas All Shah v. Emperor (A I R 1933 Lab. 667), wherein the .learned Judges quoted with approval a passage from The Outlines of Criminal Law" by Dr. Kenny, Dowaing Professor of the Laws of England, Cambridge University. The learned Division Bench held "When considering the evidence of child witnesses these observations should not be lost sight of, although each case would depend upon its particular facts and circumstances." the age of the sole child witness is not given in the case. But her testimony was not relied upon and the convict of double murder under section 302, P. P. C. and sentenced to death was acquitted. In the second case of Darpan Potdarin v. Emperor (A I R 1938 Pat. 153,), the learned Judges o0served as follows : "Lastly, there is the evidence of the boy Jiblal; and if the other points which I have mentioned are rejected, it would be unsafe to convict on the evidence of a child ten years old, more especially as he does not seem to have told anyone of his experience until the day time when he had said something to his father. The evidence of children unless immediately available and unless received before any possibility of coaching is eliminated is notoriously dangerous." The convict sentenced to death on murder charge was acquitted. Learned counsel for the appellants pointed out that in the present case, no mention was made of the children being witnesses by the father, the complainant Mehr Khan P W. 11, even by the time F. I. R. was lodged at 12-30 noon on 14-9-1980 about the occurrence having taken place in the night and he having reached there and met the children. Moreover, the Investigating Officer Abdul Ghafoor P. W. 13 denied that he recorded the statement of Aurangzeb on the-day following the occurrence or thereafter. The statements alleged to have been recorded by Riaz Ahmad, Inspector, -P. W. 12 on 29-9-1980, much after the occurrence dated 13/14-9-1980 i.e. after a fortnight. which the children have denied having made, the learned counsel for the appellants . submitted, do not fall in the permissive proviso of the aforesaid judgment. The third case mentioned was Sultan and another v. State (P L D 1965 Kar. 615). . In paragraph 14 at page 620, the learned Judges observed as .under : "There thus remains the solitary oral testimony of the young child aged 7 Mst. Rehmat. Although the learned Additional Sessions Judge has taken the precaution of putting questions to her and of satisfying himself as to her intelligence and ability to understand questions and give coherent answers, we feel it would be most unsafe to base the conviction on these two appellants upon the sole testimony of this young child. We are not even satisfied that she saw the occurrence." The two convicts sentenced to death on murder charge were acquitted. The last and the fourth case referred by the learned counsel for the appellants was Muhammad Ramzan alias Jana v. The State (1968 P Cr. L C 392). In this case there were two eye-witnesses, Younus aged 10 years and Nazir about 12 years. The learned Judge observed that "in any case the rule of prudence requires that the testimony of a child witness should not be relied upon unless it is corroborated by some other evidence on the record, because such children' often mistake dreams for reality, repeat glibly as their own knowledge of .what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward etc. In the present case there is no such corroboration forthcoming, on the record and under these circumstances. I think it will not be safe to base conviction solely on the testimony on the two aforementioned child witnesses." The accused was acquitted.' Learned counsel for the appellants contended that in the case in hand, there is no corroboration of the testimony of the child witnesses, Medical evidence and recoveries of weapons do not furnish corroboration of the occurrence. More he would submit when he would come to deal with these. 10 A. Learned counsel for the State submitted that the witnesses, though minor, were the natural witnesses being asleep with their respective mothers when the two ladies alongwith their mother were done to death. There is no justification to discard their testimony. He submitted that in the case of Abdullah v: The State (1968 S C M R 852), conviction on the basis of evidence of a child of 7 or 8 years old was upheld by the learned Supreme Court. We carefully read the judgment and also looked for the judgment of the High Court against which leave was refused. The High Court judgment is reported as Abdullah Shah y. State (P L D 1968 Pesh. 1). The facts were that 7/8 years old child's mother was done to death at morning tea time by the father and the child had straightaway run to the maternal grandmother's house and informed her. Father of the deceased was immediately informed who came to the deceased's house and then went to lodge the report which was recorded at 7-40 a.m. Not only report was prompt but all the facts about the occurrence were corroborated by the circumstantial evidence. In these circumstances the accused was convicted under section 362, P. P. C. and sentenced to life imprisonment by the learned Additional Sessions Judge. The entire evidence was re-appraised in the High Court on appeal. Conviction and sentence were upheld. On Petition for Special Leave to Appeal, the learned Supreme Court had observed that "whether she was to be believed or not, was for the Courts below to consider. Both the Courts below have believed her testimony because she was a natural witness and her version found corroboration from .the medical evidence and the other circumstances of the case." A perusal- of the two judgments of the High- Court and the Supreme Court will, show that the child witness was deposing against her own father, had informed her maternal grandmother immediately and the report had been lodged promptly. Circumstantial evidence supported the prosecution case fully. The second case referred to is Bashir v. State (P L D 1974 Pesh. 113) wherein testimony of a child witness aged eight or nine years , was relied upon and sentence of death upheld. In this case, besides the child, her mother Mst. Benazira was also an eye-witness and was deposing against her own brother. Their testimony was found to have been corroborated by the accused's absconsion. The third case referred to was Ameer Umar v. The State (1976 SS C M R 338) in which, testimony of the victim of sodomy, aged 8 to 10 years was relied upon and accused sentenced to R. 1. for one year and a half. His appeal and revision were dismissed by the Sessions Court and the Hi,-,h Court. The learned Supreme Court declined leave to appeal. The conviction was based basides on the testimony of the victim, his mother Mst. Noor Bhari.

11. A passage and a sentence from a decision of House of Lords in Director of Public prosecutions v. Hester ((1972) 3 All E R 1056) may be quoted as these enunciate principles governing evaluation of testimony of a single witness, in sexual offences, children witnesses, and the central principle of criminal law that a person can "only" be convicted if the Court is "sure that the guilt has been established"- These are at pages 1059-1060 of the report and are as follows; "The accumulated experience of Courts of law, reflecting accepted general knowledge of the ways of the world, has shown that there are many circumstances and situations in which it is unwise to found settled conclusions on the testimony of one person alone. The reasons for this are diverse. There are some suggestions which can readily be made but which are only with more difficulty rebutted. There may in some cases be motives of self-interest ; or of self-exculpation ; or of vindictiveness. In some situations the straight line of truth is diverted 1 by the influences of emotion or of hysteria- or of alarm or of remorse. Sometimes it may be that owing to immaturity or perhaps to lively imaginative gifts there is no true appreciation of the gulf that separates truth from falsehood. It must, therefore, he sound policy to have rules of law or of practice which are designed to avert the peril that findings of guilty may be insecurely based: So it has come about that certain statutory enactments impose the necessity in some instances of having more than one witness before there can be a conviction. So also has! it come about that in other instances the Courts have given guidance in terms which have become rules. Included in such cases are those in which charges of sexual offences are made. It has long been recognised that juries should in such cases be toll that there are dangers in convicting on the uncorroborated testimony of a complainant although they may convict if they are satisfied that the testimony is true. As this is no mere idle process it follows that there are no set words which must be adopted to express the warning. Rather must the good sense of the matter be expounded with clarity and in the setting of a particular case. Also included in the types of cases above referred to are those in which children are witnesses. The common sense and the common experience of men and women on a jury will guide them when they have to decide what measure of credence and dependence they should accord to evidence that they have heard. All the rules which have been evolved are in accord with central principle of criminal law that a person should only be convicted of a crime if those in whose hands decision rests are sure that guilt has been established."

12. Now, the testimony, of the two witnesses may be weighed. The first is Aurangzeb P. W. 9 who would be, it may be recapitulated, around nine years of age at the time of occurrence. He said that "8 months ago the accused Amir Khan, Muhammad Khan, Suba Khan, Fateh Khan, at about sehriwela came to our house and awoke my mother Mo. Shah Jahan and Mst. Nur Jahan. The accused took them into the room. At that time the accused Amir Khan was armed with gun, Muhammad Khan with hatchet, Fateh Khan with hatchet and Suba Khan with a lath!. A harican-lamp was burning at that time. The accused started inflicting injuries to Mst. Shah Jahan and Mst. Nut Jahan and Mst. Nur Begum in the said room and all three were murdered by the accused persons. My maternal grandfather Mehar Khan had gone to mela. I knew the accused persons because they used to come in our house prior to the occurrence. Mst. Rashman P. W. also woke up at the hue and cry. She also made shouting with me. Thereafter the accused persons ran away towards their houses. I alongwith Mst. Rashaman went to the said room and saw that all the above-mentioned three ladies were murdered by the accused."

13. Before analizing this testimony, it may be recalled that Mehr Khan, grandfather of the witness, had come to the spot in the night and lodged the F. I. R. Exh. P. H. at 12.30 noon. He claimed to be an eye-witness. About Aurangzeb and Mst. Rashman, the child witnesses, he said that these had bid themselves under the cot. In other words, he did not say that these children had seen the occurrence. It is true that Mehr Khan had repudiated the F.

1. R. But the conduct of the children would be what he described that they had hid themselves under the cots. When to the dead of night, assailants come in a house armed with gun, hatchets and Lathi for committing murders and children are awoken from the sleep, they would naturally be frightened and try to hid themselves. They would hardly have 'the serve or with about them to see and observe. Night was "dark" too, per statement of Mst. Rashman. According to the calendar, it was third of the moon -month: There will be no moon therefore, at the time of occurrence. About lantern, something will be said later. Identification of assailants and observation of weapons in their hands in the circumstances would require superhuman composure and intelligence to see the right person and right weapon-not one but four persons and four different arms and weapons, in their respective hands for children of 9 or 5 years of age. Then, according to Aurangzeb, he had "got" his statement "recorded" by the S. I. of Fateh Jang the following day of occurrence. But the Officer had denied having done so. If the child is right, the statement recorded on 14-9-1980, following the - recording of F.

1. R., would be likely to be in consonance with the contents of the F.

1. R. and therefore, being of no use for the prosecution case as put in Court, it has been suppressed reflecting on the prosecution case. If the child is not right, how can the prosecution say that he is a truthful witness and be believed when on its own showing the witness had told a lie on a crucial point? Then, according to this child witness, his statement was never recorded later on. The second Investigating Officer Riaz Ahmad, P. W. 12 said that he did record the statements of the child witnesses on 29-9-1980. It would be after a fortnight It would hardly be of much value. About his being able to identify the assailants and weapons in their respective hands when awoken in the dead of night about which something has already been said, there is some untruth in that statement. The witness says that "the accused took them (the three deceased ladies) into the room." Question of their being taken does not arise. What must have happened is that on seeing the assailants the deceased would have run into the room. The learned Assistant Advocate-General rightly submitted that use of the word "took" should not be literally taken. But it does cast a doubt as to whether the witness bad seen what he said he did. He could have easily said that the ladies ran away or were forcibly taken away-not simply taken away as if with consent. Then, the witness in the cross-examination says that "in the murder of my father, Jahan Khan son of Haider and Suba son of Ahmad were arrested and challaned". But, "I do not know if these persons were on bail during the occurrence. I do not know whether Jahan Khan and Suba were acquitted after the present murders. I do not know if my mother Mst. Shah Jahan deceased was an eye-witness in that case." Further that "I do not know if my mother Mst. Shah Jahan deceased was arrested and challaned for the abduction of Mst. Nur Bhari aforementioned." With the intelligence he claims to possess he will know the aforesaid facts. The prosecution wants the witness to be believed about the lack of knowledge of these facts but expects Mst. Rashman who will be 4/5 years younger, of about 5 years of age, to be believed when she says she knew about her maternal aunt Mst. Shah Jahan, mother of, the first witness, having been arrested and remaining in Jail for four days, also about the arrest of her father in the murder case of Ahmad Khan etc. etc. The statements of these two minor children Aurangzeb P. W. 9 and Mst. Rashman clearly show that they have been tutored and also told that if you cant answer questions as told, say I do not know. This is what precisely Aurangzeb did. Probably the girl had better memory. I She deposed about facts-earlier abduction, murder, arrests etc. in a manner that a grown-up might not so accurately say off-hand. Their statements were not recorded at the earliest i e. soon after the occurrence, nor after four days when Mehr Khan's statement was recorded in which he had mentioned that he was told of the occurrence by these minor children. - The alleged statements are stated to have peen recorded after 14 days on 29-9-1980. The learned counsel for the appellants referred to King Emperor v. Punit Choin and others (A I R 1922 Pat. 348), Ghafoora v. Crown (P L D 1951 B J 33), Qabil Shah and others v. The State (P L D 1960 Kar. 697), Jalal v. The State (P L D 1973 Kar. 643), Budho v. The State (P L D 1965 Kar. 76), Allah Din and another v. The State (P L D 1963 S C 17) and Sikandar v. The State (1976 P Cr. L J 249) to contend that when a witness does not appear or is not produced before the Investigating Agency and. his statement not recorded at the earliest, his statement in Court is not reliable. Broad' statement may not contain the whole truth. But late arrival will put one on guard as to why the witness had not made the statement at the earliest. When a grown-up's statement becomes suspect if he springs up at the fag end and surprises everybody, it will be more so in case of children's evidence. They can be taught in the interval may stories. Therefore, it is difficult to rely on their statements in Court which do not ring true and intrinsically showy that these were tutored and memorized.

14. As regards the corroborative evidence, a couple of sentence from the aforequoted foreign judgment at p. 1065 of the report may be reproduced ; "The essence of corroborative evidence is that one creditworthy witness confirms what another creditworthy witness has said. Any risk of the conviction of an innocent person is lessened if conviction is based on the testimony of more than one acceptable witness. Corroborative evidence in the sense of some other material evidence in support implicating the accused furnishes a safeguard which makes a conclusion more sure than it would be without such evidence. But to rule it out on the basis that there is some mutuality between that which confirms and that which is confirmed would be to rule it out because of its essential nature and because of its virtue. The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible evidence. All of this emphasises the importance of directing a jury that the evidence of children must be examined with special care."

15. The learned trial Court has found corroboration of the evidence of the children in medical evidence and the recoveries. The medical evidence is in the form of the testimony of Dr. Gul-i-Nakhez Ghauri Medical Officer, District Headquarters Hospital, Attock, P. W. 1 who had performed the post-mortem examination of the three deceased. The relevant portions are that Mst. Nur Begurn suffered nine injuries "by pellets of cartridges", i e. by fire-arm. Mst. Nur Jahan suffered six injuries by fire-arm and one contused wound with blunt weapon. Mst. Shah Jahan suffered six cut wounds, one `abraded wound', three holes on the front of thigh and 4 -holes on the back-entry and exit wound. The injuries were by sharp edged weapon, blunt weapon and fire-arms. This evidence can corroborate the evidence regarding the injuries-consequential death and the nature of weapons stated to have been used, not the ocular evidence regarding the identity of the accused, especially if that be deficient or suspect or incredible. Two points more may be noted made by the learned counsel for the appellants. The first is that the stomachs of Mst. Nur Begum and Mst. Shah Jaban contained "-`10 to 12 ounces of semi-digested food". "St. Nur Jaban's stomach "had 8 to 10 ounces of semi-di-ested food". Small intestines of the three bodies had "little digested food", Mst. Nur- Begum's large intestine "was found empty" ; of Mst. Nur Jahan, the large intestine and bladder was empty". The argument raised by the learned counsel for the appellants was that the contents of the stomach and the. other organs of the bodies of the three deceased would show that they were killed when they had taken their meals about 3 or 4 hours earlier. Since the time of occurrence is stated to be sehriwela by the prosecution which will be about 3/4 a.m. in the morning and village-folk do not take their meals at mid-night, the prosecution story is false or is contradicted by medical evidence. The argument i8 neither decisive nor weighty. The learned Assistant Advocate-General referred to Ibrahim v. The State (1969 S C M R 773), Allah Bakhsh and another v. The Stute (1968 S C M R 672) and Munshi and another v. The state (P L D 1971 Lab. 781) at ,96 to contend that such discrepancies do not detract from ocular testimony. He is quite right. Another point urged was that from 41st Snah Jahan who was a widow of 32 years of age, "vaginal swabs were despatched to the Chemical Examiner", by the Doctor. But no report of the Chemical Examiner has been produced. Adverse inference can be drawn and also that in the first instance rape or other illicit relationship was suspected by the. prosecution agency. The learned Assistant Advocate General submitted that swabs may have been taken and despatched out of abundant prosecution and no further evidence being forthcoming, the report was not produced. The learned Assistant Advocate-General may be right and in any case it is no body's case, not even of defence, that illicit intercourse had taken place or that had led to the murder of three deceased ladies.

16. A word may be said about the recoveries of weapons of offence relied upon by the learned trial Court as corroborative piece of evidence of the ocular testimony. According to the prosecution on 10-11-1980, a gun '12 bore (P. 17) was recovered from Amir Khan appellant, a hatchet (P. 18) from Muhammad Khan appellant, another hatchet (P 19) from Fateh Khan appellant and a stick (P. 20) from Suba Khan appellant vide memos. Exlts. P. Q , P. R., P. S. and P. T. respectively by Manzoor Ahmad, A. S. l., P. W. 5 in the presence of Noor Dntt and Gulab. About these witnesses it is stated by the prosecution that they had been won over and, therefore, were not produced. Learned counsel for the appellants submitted that the solitary statement of the Police Officer cannot be relied upon for the recoveries. The learned Assistant Advocate-General submitted that in the circumstances, it can be. The more emphatic contentions of the learned counsel for the appellants were that the recoveries were effected on 10-I 1-1980, after nearly two months, from open houses, and the empties recovered from. the spot did not match with the gun vide. report of the Forensic Science Laboratory (Exh. P. W.) and the hatchets and the stick were found not blood-stained vide Memos. Exhs. P. R., P. S. and P. T. Learned counsel' for the appellants, therefore, submitted that the recoveries are of- no 'evidentiary value in the circumstances. He relied upon Ejaz All Shah and another v. The State (1975 P Cr. L J 195). The learned Assistant Advocate-General tried to convass that late recovery from open houses, non-matching of the empty with the gun and hatchets and the stick being not blood-stained, would not detract from the fact of recoveries of the weapons from the appellants. Besides that the private recovery witnesses have not come forward to depose, the late recoveries from open houses of the gun, hatchets and the stick not being relateable to the fact of being used in the occurrence--as the empty did not match with the gun and hatchets and stick being not blood-stained, the evidentiary value in the circumstances would be nearly nil.

17. A word may be said about the recovery of lantern (P. 12) vide Memo. Exh. PG produced by Mehr Khan, complainant. It was done on 4-12-1980, nearly three months after the occurrence. It had not been mentioned in the F.

1. R. Exh. P. H., nor in the inquest reports Exhs P. K., P. L., P. M., nor did he say in Court that he had ever produced it before the Police. It appears to have been introduced because the night of the j occurrence was "dark". The learned trial Court had not rightly relied on it.

18. The three women sleeping in their home in the night were done to death by fire-arm, hatchets and stick. It was cruel and brutal. Have the appellants done so? The learned Additional Sessions Judge held so and sentenced them to death. We carefully went through the evidence, took note of every item of the prosecution case. Pondered and thought over the matter thoroughly. We could not come to be "sure" that the case against the appellants has been proved "beyond reasonable doubt". It appears clearly from the evidence on the record that the three women with two minor children were in their home in the night. The only male member Mehr Khan had gone to see a mela. Next day noon he lodged the F. I. R. giving one motive and one set of accused. He changed the motive and the accused, giving another motive and a second set of accused person. Lastly and[ in the Court, he came up with one of the motives and another set of accused,) third in the series. Not only he waivered but the investigating agency seems not to have probed the matter deeply and efficiently. the learned Assistant Advocate-General submitted that it was misled by the complainant. May be so, but it was its duty, ultimately of the State, to investigate. Investigation does not mean going about as led. It requires inquiring into, finding, out, looking into and searching for ail facts relevant 'to the unearthing of the crime. Leisurely or half-hearted efforts never lead to successful results. Search) of the truth is always a painstaking endeavour. Triple murdar should not have been trifled with. Presence of children was natural. They should hive been examined straightaway-whatever worth their examination may have been, in the absence of other evidence coming forward. Callous conduct of the complainant in giving one story and one set of accused-who were innocent according to himself when he gives different story and names different accused persons, and then going on to the third, coupled with careless and inefficient investigation, has led to situation that three women have lost their lives and culprits not brought to book in accordance with law. Its efficacy is rendered useless. In this situation, the appellants cannot-simply because they have been brought forward as accused at the last, sentenced to death either. Before any person can be ordered to be hanged, his guilt has to be proved beyond reasonable doubt. As discussed to detail above, there is no worthwhile, reliable, or plausible evidence, muchless proving beyond reasonable doubt, to warrant the conviction of the appellants. Therefore, notwithstanding the heavy feeling that three-ladies have lost their lives for nothing we cannot uphold the conviction and sentences of death of the appellants. Consequently, the reference is rejected, the appeal is allowed-appellants acquitted of the charges, and revision for enhancement of compensation j dismissed. The appellants shall beset at liberty if not wanted in any other case. The three matters are thus disposed of. M. z. M. Appeal allowed.