P L D 1988 Lahore 600 (PLP)

RUSTAM S. SIDHWA, J.‑‑Shan alias shana, Jaffar Hussain alias Kala, Rehmat Ali, Ahmad Ali, muhammad Ramzan alias Manna and Nazar Hussain were tired by the Punjab Special Court for Speedy Trial No.111, Gujranwala at Lahore, under section 302/149, P.P.C. for the triple murder of Mst. Nawab Bibi, Irshad ahmad alias Gugi and Muraud Ali decesed under section 17(4) of the Offences against property (Enforcement of Hadood) Ordinance, VI of 1979, read with section 6/149, P.P.C. for the commission of the triple murder of _Mst. Nawab Bibi, Irshad Anmad alias Gugi and Murad Ali, deceased, in the course of Haraaba under section 307/149, P.P.C. for attempt on the lives of Mst. Yasmeen, Liaqat Ali, Basharat Ali and Muhammad Hafeez, .P.Ws., under section 460/149, p.p.C. for the commission of the aforesaid tripple murders in the course of lurking house trespass by night in the house of Haji Mhammad in P.W. and under sectior 148, P.P.C. for rioting. The learned trial Judge, by his judgment dated 8‑11‑1987, convicted Shan alias Shana, Jaffar ussain alias Kala, ‑Rehmat Ali, Ahmad Ali and Nazar Hussain accused under the, aforesaid sections, but acquitted Muhammad Ramzan alias Manna by giving him the benefit of doubt. All the five accused were sentenced under section 302/149, P.P.C. to death each with fine of s.20,000 each or in default thereof to undergo three years' rigorous, imprisonment on each of the three counts for the murders of Mst. ,Nawab Bibi, Irshad Ahmad alias Gugi and Murad Ali deceased, under section 17(4) of ordinance VI of 1979/149, P.P.C. read with section 396/149, P.P.C. to death each, under section 307/149, P.P.C. to seven years' rigorous imprisonment each with a fine of Rs.5,000 each in default thereof' to undergo one year's further rigorous imprisonment each on each of the four counts and under sections 460/149, P.P.C. to imprisonment for life each with a fine of Rs.5,000 each or in default thereof to one year's rigorous imprisonment and under section 148, .P.C. to one year's rigorous imprisonment each. The sentences of imprisonment were ordered to run concurrently. The entire fines imposed under section 302/149, P.P.C. n respect of murder of the three deceased were ordered to be paid to their respective legal heirs. The joint appeal (Cr.A.112 of 1988) preferred by Shan alias Shana, Jaffar ussain allas Kala, Rehmat Ali, Ahmad Ali and Nazar Hussain convicts, is now before us for disposal.

2. The brief facts of the case are that on 1‑4‑1987 at 00.30 a.m. (past mid‑night) Haji Muhammad Din complainant P.W.17, alongwith his wife and children, was. sleeping in the courtyard of his house. One person armed with carbine scaled over the outer wall of the house and entered his courtyard and opened the outer door, whereafter his nine companions armed with guns entered the house. The person who had earlier scaled over the outer wall of the courtyard went near Mst. Nawab Bibi deceased, wife of Haji Muhammad Din P.W.17, and asked her to hand over the keys. She was threatened not to raise alarm. Due to the threat of the accused, she knocked at the door of the room of the house, where her son Liaqat Ali P.W.16, alongwith his wife, was sleeping. Liaqat Ali P.W.16 opened the door. The accused entered the room and told Liaqat Ali to keep quiet. The accused collected the household articles lying in the room. They also removed a necklace and ear‑rings of the wife of a son of. the complainant. Another accused took out Rs.700 from the pocket of Haji Muhammad Din P.W.17. The accused started removing the articles stolen by them from the room. Meanwhile, Liaqat Ali P.W.16 raised alarm, which attracted theirneighbour Muhammad Hafeez P.W.19. The accused on hearing alarm of Liaqat Ali P.W.16 opened fire, as a result of which Mst. Nawab Bibi deceased, Liaqat Ali P.W.16 and Mst. Yasmeen P.W.15 were injured. Basharat Ali P.W.18, a nephew (Bhanjah) of the complainant, also came there and was hit by the fires from the accused. Muhammad Hafeez P.W.19 was also injured by the gun fires. The accused then started running away with the, stolen property. Many Mohallahdars also arrived there. They all chased the accused. Murad Ali and Irshad Ahmad also joined the chase. The accused continued firing recklessly, as a result of which Murad Ali and Irshad Ahmad alias Gugi were injured. One of the accused, who later disclosed his name as Liaqat Ali, was also injured by the fires from his co‑accused, who fell, whereas the remaining accused managed to run. away. Liaqat Ali, injured accused, disclosed the names of his companions as Nishan alias Shana, Nazar Hussain, Ahmad Ali, Rehmat Ali, Manna (Ramzan), Sharif, Kala, Anwar and Muhammad Ali. Murad Ali died at the spot, as a result of the injuries. Haji Muhammad Din P.W.17 took his wife Mst. Nawab Bibi, his daughter Mst. Yasmeen P.W.15, his son Liaqat Ali P.W.16 alongwith Basharat Ali P.W.18, Muhammad Hafeez P.W.19 and Irshad, all injured, to Civil Hospital, Kamoke, where Mst. Nawab Bibi died before any medical aid could be rendered. The remaining injured were admitted in hospital.

3. On coming to know of this occurrence, Muhammad Zulfiqar, S.I. P.W.24 reached the Civil Hospital, Kamoke, at about 1‑30 a.m. and recorded the statement Exh.P.U. of Haji Muhammad Din, complainant P.W.17. On the basis of the said statement, the formal F.I.R. Exh.P.U11 was recorded at Police Station Kamoke at 1‑40 a.m. by Shaukat Ali L.F.C. P.W.11.

4. Leaving other police officers at the Civil Hospital, Muhammad Zulfiqar S.I. P‑W‑24 proceeded to the spot, where he collected blood stained earth from the place where Mst. Nawab ‑ Bibi deceased had fallen, vide memo Exh.P.V.: and eight empty cartridges P.10/1‑8 near about that place, vide memo Exh.P.W. The said recoveries were witnessed by 11uhammad Sarwar P.W.12, Muhammad Zulfiqar S.I. P.W.24 and Muhammad Siddique (given up P.W.). The police officer also recovered blood‑stained earth from the place where Irshad Ahmad, alias Gugi deceased had been injured, vide memo Exh.P.FF. The said recovery was witnessed by Nathey Khan P.W.20, Qasim Ali P.W.21 and Muhammad ZuIfiqar Ali S.I. P.W.24., The police officer also recovered blood‑stained earth from the place where Murad Ali had been hit, vide memo Exh.P.X, and eight crime empties P 11/1‑8 from near the spot, vide memo. Exh. P. Y. The said recoveries were witnessed by Muhammad Sadiq P.W.13, Muhammad Arshad P.W.22 and Muhammad ZuIfiqar S.I. P.W.24.

5. The same day at 00‑45 a.m. Dr. Ali Muhammad P.W.1 medically examined Muhammad Hafeez Khan P.W.19 and found eleven fire‑arms wounds of entry each 0.25 c.m. x 0.25 c.m. on the right and left chest and front of right and left leg. All the injuries were fresh and found to be simple in nature.

6. The same day at 00.50 a.m‑. Dr. Ali Muhammad P.W.1 medically examined Liaqat. Ali P.W.16 and found a lacerated wound 2 c.m. x 0.5 c.m. x bone deep on the top and right side of head, an abrasion I c.m. x 1 c.m. on the right side of his face, an abrasion 2 cm x 2 cm on the front of his right knee and an abrasion 2 cm x 2 cm on the front of his left knee. AU the injuries were found simple and fresh.

7. The same day at 1‑00 a.m. Dr. Ali Muhammad P.W.1 medically examined Mst. Yasmin P.W.15 and found twelve fire‑arms wounds of entry each 0. 25 c. m. x 0. 25 c. m. in an area of 15 cm x 8 cm on her outer side of right upper arm, 39 fire‑arms wounds of entry each measuring 0.25 c.m. x 0.25 c.m. in an area of 22 cm x 8 cm on the back of her right chest, 10 fire‑arms wounds of entry each 0.25 cm x 0.25 in an area 8 cm x 7 cm on the back and top of her right shoulder and two fire‑arms wounds of entry each 0.25 cm x 0.25 cm on the back of her middle right fore arm. All were found to be fresh and simple.

8. The same day at 1‑10 a.m. Dr. Ali Muhammad P.W.1 medically examined Basharat Ali P.W.18 and found eleven fire‑arms wounds of entry each 1 cm x 1 cm in an area of 9 cm x 9 cm on the back of his lower right thigh. All the wounds were fresh and simple.

9. The same day at 2‑50 a.m. Dr. Ali Muhammad P.W.1 medically examined Liaqat Ali accused and found on his person a lacerated wound 4 cm x 1 cm x bone deep on the left side of his head, an arbrasion I cm x 1 cm on the left side of his nose, a crushed wound 6 cm x 5 cm x muscle deep on the back of his right upper arm, a wound of inlet 5 cm x 5 cm on front and outer side of his right chest and a lacerated wound 1 cm x 1 cm on his eye‑brow. The injuries on the right upper arm and right chest were declared to be fire‑arms injuries and the rest to be blunt. ALI the injuries were found to be fresh.

10. The same day at 3‑00 a.m. Dr. Ali Muhammad P.W.1 medically examined Zulfiqar Ahmad (P.W. not produced) and found a fire‑arm wound of entry 1 cm x 1 cm x chest cavity on the front of the chest. The injury was fresh and kept under observation.

11. The same day at 3‑10 a.m. Dr. Ali Muhammad P.W.1 medically examined Irshad Ahmad deceased, who was then alive, and found a crushed wound 16 cm x 5 cm x bone deep on the right side of the head, with underlying right parietal bone fractured, multiple wounds 1 cm x 1 cm in an area of 10 cm x 4 cm on palmer surface of his right hand extending to the wrist joint and multiple fire‑arms wounds of entry each 0.25 cm x 0.25 cm in an area of 10 cm x 5 cm on palmer surface of left hand extending to the wrist joint. The injury on the head was grievous and dangerous, whereas injuries on the palms were kept under observation. All the fire‑arms injuries were fresh. The patient was unconscious and under shock. Cold sweat was present. Pulse and blood pressure are low. The patient was referred to the General Hospital, Lahore.

12. The same day i.e. 1‑4‑1987 at 10‑00 a.m. Dr. Ali Muhammad P.W.1 conducted post‑mortem examination on the dead body of Mst. Nawab Bibi deceased and found sixty pellet wounds of entry measuring 0.25 cm x 0.25 cm in an area of 25 cm x 16 cm on the front and right side of the chest and eighty pellet wounds of entry each measuring 0.25 cm x 0.25 cm in an area of 25 cm x 25 cm on the front and right abdomen. Both sets of pellet wounds had blackened, burnt and inverted margins. The right thorax wall, right pleurae, right lung, right wall of the abdomen, peritoneum, small and large intestines, liver and kidney were found injured. Both ante‑mortem fire‑arms wounds were found to be grievous and dangerous to life. Death was due to shock and massive haemorrhage as a result of both the injures, which were. sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about half an hour and that between death and post‑mortem examination between eight to ten hours. Thirty pellets were recovered and removed from the body and handed over to the police.

13. The same day at 12‑30 p.m. Dr. Ali Muhammad P.W.1 conducted the post‑mortem examination on the dead body of Murad Ali deceased and found eight fire‑arms wounds of entry each 1 cm x 1 cm on the chest and left upper arm and two fire‑arms. wounds on the back of left and right upper arm. The thorax wall, pleurae, right lung, peritoneum, small and large intestines and liver were found to be injured. The 7th right rib on the back was found fractured. All the fire‑arm wounds of entry were found to be grievous and dangerous to life, whereas the rest of the fire‑arm wounds of entry were found to be simple. Death was due to shock and massive haemorrhage as a result of the fire‑arm wounds of entry on the chest and abdomen, which were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate and that between death and post‑mortem examination was between nine to twelve hours. Three pellets were recovered from the body and handed over to the police.

14. On 1‑4‑1987 Muhammad ZuIfiqar SI P.W.24 arrested Liaqat Ali accused, who was lying injured in the hospital.

15. On 1‑4‑1987 Javed Aftab S1 P.W.25 made an application Exh.P.JJ. to Dr. Ali Muhammad P.W.1, enquiring whether Liaqat Ali accused was fit to make a statement but the said accused was not fit to make a statement.

16. On 3‑4‑1987, Javed Aftab Sl P.W.25 recorded the statements of the injured witnesses at the Civil Hospital Kamoke, after they were found fit by the doctor to make such statements.

17. On 5‑4‑1987 Qayyum Tariq, A.S.I., made an application Exh.P.KK to Dr. Ali Muhammad P.W.1 if Liaqat Ali accused was fit to make a statement, but he was not found to be so fit.

18. ON 6‑4‑1987, Liaqat Ali accused died in the hospital. Aftab Javaid, S.I. P.W.25, after preparing Inquest Report Exh.P.M.M, sent the dead body of Liaqat Ali accused for post‑mortem examination. There is no evidence on the record as to who performed the post‑mortem examination on the dead body of Liaqat Ali, deceased accused.

19. On 11‑4‑1987, Irshad Ahmad alias Gugi died in the hospital. Aftab Javaid, SI P.W.25 after preparing the necessary papers, sent the dead body of Irshad Ahmad alias Gugi deceased to the hospital for post‑mortem examination.

20. On 12‑4‑1987 at 12‑30 p.m. Dr. Saeed Akhtar P.W.3 conducted the post‑mortem examination on the dead body of 'Irshad Ahmad deceased and found the same wounds on the person of the deceased as had 'been found earlier by Dr. Ali Muhammad P.W.1, apart from one further scabbed abrasion 1 cm x 1 cm on the forehead, 3 cm above root of the nose. The doctor also found three surgical wounds. Death was due to the injuries on the head, which were found to be sufficient to cause death in the ordinary course of nature. The scabbed abrasion was found to be by blunt weapon, whereas the remaining injuries were by fire‑arms. Some pellets were handed over to the police.

21. On 26‑4‑1986, all the six accused were arrested by Nazir Ahmad, S.I. at Noor Nursery near Afghan Hotel in village Sallar, District Gujranwala. Shan, alias Shana accused was holding DB gun P. 12 in his hand. On personal search, four live cartridges P.13/1‑4, a wrist watch P.15 belonging to Liaqat Ali P.W.16 and the accused own gun licence book P.14 were recovered. All these items were taken into possession vide memo Exh.P.Z. Jaffar Hussain accused was holding SB gun P.16, belonging to Muhammad Arshad P.W.22. On personal search, three live cartridges P.17/1‑3 were recovered. All these were taken into possession vide memo Exh.P.AA. Rehm Din alias Rehmat Ali accused was holding S.B. gun P.18. On his personal search, one watch P.19 belonging to Liaqat Ali P.W.16 and two live cartridges P20/1‑2 were recovered. All these items were taken into possession vide memo Exh.P.B.B. On search of Ahmad Ali accused, Khanjar P. 21 and wrist watch P. 22 of Liaqat Ali P. W. 16 were recovered. These were taken into possession vide memo Exh.P.C.C. On personal search of Muhammad Ramzan accused, dagger P.23 and Khes P.24 of Haji Muhammad Din P.W.17 were recovered. These were taken into possession vide inemo Exh. P.D. D. On personal search of Nazar Hussain, accused, dagger P.25 and Khes P.26 of Haji Muhammad Din P.W.17 were recovered. These items were taken into possession vide memo Exh.P.E.E. All these recoveries were witnessed by Rana Mumtaz Ali Khan P.W.14, Nazir Ahmad S.I. P.W.26 and Muhammad Boota (given up P.W.).

22. On 4‑5‑1987 Nazir Ahmad S.I. P.W.26 gave application Exh.P.M. to the Additional Deputy Commissioner (G) for orders for holding the test identification parade of all the six accused. The said application was marked to Sh. Iftikhar Ali, M.I.C. P.W.2 for necessary proceedings, vide order Exh.P.M./I of the Additional Deputy Commissioner (G).

23. On 5‑5‑1987 Sh. Iftikhar Ali, M.

1. C. P.W.2 held the identification parade of all the accused in the Central Jail, Gujranwala. The six accused were mixed up with forty other inmates of the jail, before the witnesses were called in to identify them. Haji Muhammad Din, complainant P.W.17 correctly identified all the accused, except Shana and Jaffar Hussain accused. Liaqat Ali P.W.16 identified all the six accused. Basharat Ali P.W.18 identified all the accused, except Shana accused. Mst. Yasmeen P.W.15 identified all the six accused. Muhaminad Arshad P.W.22 identified all the six accused. Mistri Rehmat Ali (given up P.W.) identified all the six accused. Ali Asghar P.W.23 identified all the six accused. Nathey Khan P.W.20 identified all the accused, except Shana and Jaffar Hussain accused. Khadim Hussain (given up P.W) identified all the six accused. Before the identification parade, all the six accused had complained to the Magistrate that they had been shown to the witnesses by the police, when they were in police custody, and their heads were shaved to facilitate their identification. The Magistrate noted that the heads of the accused were shaved at the time of the holding of the identification parade.

24. After completing the necessary investigation, challan against the nine accused was sent up, but as they were shown as absconding, trial only proceeded against six.

25. At the trial, the prosecution produced Mst. Yasmin P.W.15, Liaqat Ali P.W.16, Haji Muhammad Din complainant P.W.17, Basharat Ali P.W.18, Muhammad Hafeez Khan P.W.19, Nathey Khan P.W.20, Qasim Ali P.W.21, Muhammad Arshad P.W.22 and Ali Asghar P.W.23 as regards the motive, the ocular account and the receipt of injuries by Liaqat Ali, accused, at the hands of his co‑accused, and the disclosure by him of the names of his co‑accused, Dr. Ali Muhammad P.W.1 and Dr. Saeed Akhtar P.W.3 in corroboration of the medical testimony, Muhammad Sarwar P.W.12, Muhammad Sadiq P.W.13, Rana Mumtaz Ali P.W.14, Nathey Khan P.W.20, Qasim Ali P.W.21, Muhammad Arshad P.W.22, Muhammad Zulfiqar SI P.W.24 and Nazir Ahmad SI P.W.26 in support of the recoveries and Sh. Iftikhar Ali MIC P.W.2 in support of the identification parade. 25.

26. At the trial, all the accused. denied all the allegation.s' that were levelled against them, including the recoveries alleged to have been made from their persons. Shan alias Shana accused stated that his gun P.12 and licence P.14 had been brought by the police from his home and planted on him. All state that they had been shown to the witnesses in the police station after their heads were shaved, after their arrest, and they were, therefore, picked up by the witnesses by virtue of their shaven heads. They all pleaded innocence. All of them denied that Liaqat Ali, deceased accused, was their companion, or had been apprehended by the witnesses at the spot, or he had given their names to the witnesses. Shan allas Shana and Nazar Hussain accused, produced Nazar Hussain D.W.1 and Muhammad Ashraf D.W.2 in their defence. Rahmat Ali accused produced Ch. Muhammad Ashraf D.W.3 and Irsal Ahmad D.W.4 in his defence. Jafar Hussain accused produced Arif Hussain D.W.5 in his defence. All the six accused appeared in their own defence as witnesses under section 340(2), Cr.P.C. 26.

27. The learned Judge of the special Court disbelieved the evidence as regards the witnesses identifying different accused at the identification parade,‑ as he held that the heads of the accused have been earlier shaved and that as at the time of the identification parade they had shaved heads, they were easily picked up. The learned trial Judge also disbelieved the recoveries of the three watches and Kheses from the persons of the accused, as these items were noL mentioned in the list Exh.DD of the stolen articles supplied by Haii Muhammad Din complainant P.W.17 to the Investigating Officer immediately after the recording 9f the F.I.R. The learned trial Judge disbelieved the recovery of the gun P.18 from the person of Rehmat Ali accused, as it did not match with any crime empty recoveries from the spot. However, the learned trial Judge, relying upon the testimony of the eye‑witnesses, the recovery of the licensed gun of Shana accused, which matched ‑with one crime empty, the recovery of the gun P.16 of Muhammad Arshad P.W.22 from the person of Jafar Hussain accused, the medical testimony, and the presence of the names of the accused in the statement Exh.P.U. promptly lodged by Haji Muhammad Din complainant P.W.17, convicted and sentenced Shan alias Shana, Jafar Hussain, Rehmat Ali, Ahmad Ali and Nazar Hussain, accused, as stated in para I above, but acquitted Muhammad Ramzan, accused, as no person by his name and parentage had been named in the statement Exh.P.U. 27.

28. We have heard the arguments of the learned counsel for the appellants and the State and have perused the record. The first important question that arises is whether Liaqat Ali, deceased was a companion of the five appellants in the commission of the crime, as alleged, and whether he was not just a passerby who was hit by the firing of the present appellants and, if he was a culprit whether he was in a position to give the names of his companions and, if so, whether he could have done so, with particularity and details, as given in the statement of Haji Muhammad Din complainant P.W.17. In the first instance, the police did not disclose in the challan that Liaqat Ali deceased, had been medically examined by Dr. Ali Ahmad P.W.1, vide his medico‑legal report Exh.D.A., or that post‑mortem examination had been carried out on his dead body on 7‑4‑1987. Neither the inquest report Exh.P.L.L, nor the medico‑legal report Exh‑D.A., nor the post‑mortem examination report of Liaqat Ali, deceased mentioned the name of any person who identified the said deceased. Surprisingly, the copy of the medico‑legal report Exh.D.A. of Liaqat Ali, mentions the parentage, caste and occupation of Liaqat Ali, deceased, as "unknown". his age as 26 years" and his sex as 'male". Then next to the entry "son of", the word "unknown" has been scored out and the words "Ghulam Rasool" have been entered in ink. Nothing is entered against the particulars of his residence. Against "names of relatives or friends", the words "by police" have been entered. Date of examination is shown as 1‑4‑1987 2‑50 a.m." It is, therefore, clear that right uptil 2‑50 a.m. on 1‑4‑1987, when Liaqat Ali, deceased, was presented before Dr. Ali Ahmad P.W.1, nobody knew anything about the name of his father, his caste, his occupation or his residence and there was no relative or friend of the said deceased who was in a position to identify him in the hospital. The statemet Exh.PU made by Haji Muhammad Din, complainant P.W.17, to Muhammad Zulfiqar Sl P.W.24 at 1‑30 a.m. on 1‑4‑1987 mentions the names, parentage, caste and residence of nine co‑accused of Liaqat Ali, deceased but surprisingly does not give the parentage, caste or the correct address of Liaqat Ali, deceased other than his vague address as "Ferozewala, District Sheikhupura . The prosecution has produced nobody in the witness‑box who identified the said Liaqat Ali, deceased either at the time of his first medical examination, or at the time of his inquest report, or at the time of post‑mortem' examination, or at any other stage. It is, therefore, not known whether the person who died as a result of the firing of the appellants and their companions was "Liaqat Ali son of Ghulam Rasool, caste Lambey, resident of Ferozewala, District Sheikhupurall, as alleged in the inquest report Exh.P.L.L, and as to who gave these particulars to. Javed Aftab S.I. P.W.25. If all these particulars were available to him when the inquest report Exh.P.LL was scribed, then it was surprising that the caste of Liaqat Ali, deceased ‑accused, was not given by the doctor when he conducted the post‑mortem examination. One thing which stands out a mile is that Liaqat Ali P.W.16, Haji Muhammad Din P.W.17 and Basharat Ali P.W.18, who are the three witnesses who stated that Liaqat Ali, deceased‑acc used, gave to them his own particulars and that of his co‑accused, but none of them mentioned that Liaqat Ali, deceased‑accused, disclosed anything more than his own name. If the parentage, caste and residence of Liaqat Ali, deceased‑accused, were not disclosed by him to any of the said three witnesses, it is obvious that the particulars of the residence given by Haji Muhammad Din complainant P.W.17 in his statement Exh.PU and the full particulars of this deceased given by the police officer in the Inquest Report Exh.P.L.L. were also procured by the police at some later stage and thereafter included in the statement Exh.PU and the Inquest Report Exh.P.L.L. Still further, the post‑mortem examination report of Liaqat Ali, deceased‑accused, shows that he suffered inter alia a fracture of the left parietal bone extending upto inter‑cranial fossa ‑ and that he died due to inter‑cranial haemorrhage. The doctor did not deliberately give the probable time between injuries and death, for, if he had. he would have had to write "immediate", which would have clashed with the statement of the complainant. Since this deceased suffered a serious fracture, the possibility that he became unconscious in minutes, cannot be excluded and since he remained. unconscious till his death, the probability that he gave particulars of himself and his companions cannot be accepted. From the totality of the evidence on the record, it appears that one of the persons who died, as a result of the firing by the appellants and their companions, at best, has been described as Liaqat Ali, that he was not in a position to have remained in a state of consciousness for more than a few minutes and that even assuming that he was, he supplied no particulars regarding his own parentage, caste and residence or that of his companions to any of the witnesses. Since nobody knew who this 'Liaqat Ali," deceased ‑accused, was, and since nobody identified his dead body at any stage, whether he was one of the passersby or the accused, nobody can certify with certainty. We cannot, therefore, accept him as a companion of the appellants or as one who gave his own detailed particulars or that of his so‑called companions, to the witnesses. 28.

29. Apart from the above, Liaqat Ali P.W.16, Haji Muhammad Din Complainant PW.17 and Basharat Ali PW.18, who are the only three witnesses who deposed to the fact that Liaqat Ali, deceased‑accused, had supplied the full particulars of the present appellants and their other companions, are discrepant on material particulars. Liaqat Ali P.W.16 in his evidence stated that Liaqat Ali, deceased ‑accused, on their inquiry, only disclosed his name and that of his nine co‑accused. In cross‑examination he stated that Liaqat Ali, deceased‑accused, disclosed his name only, that he also disclosed the names of his co‑accused, that he did not disclose the parentage, caste, place of residence, police station or the district of his companions or of himself and that it was incorrect that he had stated before the police their parentage, caste and residence. When confronted with his statement Exh.DC, it was found that these facts were so recorded. He admitted that two co‑accused of the six accused that were challaned were apprehended by the police on the following morning. Haji Muhammad Din complainant P.W.17 in his evidence‑in‑chief stated that one of the culprits who was injured was Liaqat Ali and that the said Liaqat Ali accused disclosed the names of his nine co‑accused. In cross‑examination he stated that Liaqat Ali accused had given details of the names, parentage, caste and residence of the co‑accused to him, which he had mentioned in his statement Exh.PU. However, during cross‑examination he could only remember the name of Shana appellant and could not explain his loss of memory regarding the other co‑accused. Basharat Ali P.W.18 in his evidence only stated that one of the accused who were injured was Liaqat Ali and when they enquired from him about the details of his co‑accused, he gave their names. In cross‑examination Basharat Ali P.W.18 stated that when Liaqat Ali, deceased‑accused, was giving description of the accused, he wrote down the same and that writing he gave to the police. He, however, admitted that he did not take down the parentage, caste and residence of the accused narrated by Liaqat Ali, deceased, and that he only took down their names only. Nathey Khan P.W.20 in cross‑examination clearly stated that neither Liaqat A Ii, deceased ‑accused, disclosed to him the names of his co‑accused nor in his presence disclosed their names to his other companions. The only person who subscribed to the fact that the parentage, caste and residence of all the other nine co‑accused were given by Liaqat Ali, deceased ‑accused, was Haji Muhammad Din complainant P.W..17, but in view of the material contradictions in the evidence of the four witnesses, we cannot accept the statement of Haji Muhammad Din complainant P.W.17 in this respect. It appears that the parentage castes, and residences of the co‑accused were not given by Liaqat Ali, deceased‑accused. This was secured by the police at some later stage How they secured these names has not been given by the police officers in their evidence. In these circumstances, we cannot) accept the ocular testimony as regards the full particulars of the co‑accused, as is alleged to have been given by Liaqat Ali, deceased‑ accused. 29.

30. In view of the findings given in paras 28 and 29 above the next question that arises is whether the eye‑witnesses can be believed safely, subject to corroboration being present. The night was dark when the occurrence took place. This is admitted by Liaqat Ali P.W.16. There is some discrepancy as regards whether a bulb was burning in the premises, when the occurrence took place, but we would assume the bulb was burning. Liaqat Ali P.W.16, Haji Muhammad Din P.W.17 and Basharat Ali P.W.18 materially tried to falsely give names of the co‑accused, which we think, were not given by Liaqat Ali, deceased accused. They are baltant liars. Mst. Yasmeen P.W.15 had her police statement recorded two days after the incident. Muhammad Hafiz Khan P:W.19 and Qasim Ali P.W.21 were never joined in the investigation parade. Their presence at the spot, is, therefore, suspect Nathey Khan P.W.20 gave no particuaIrs of the accused in his police statement Exh.D.F. Ali Asghar P.W.23 also admitted in cross‑examination that he gave no particulars of the accused to the police. In view of this position, it is not possible to accept the statements of these eye‑witnesses, without strong and unquestioned corroboration being present, almost sufficient by itself to establish the clear participation of each of the appellants in the case in instance. 30.

31. In a case of dacoity at night, evidence of witnesses, if not seriously discrepant, is usually accepted subject ‑to corroboration. such as recovery of the stolen articles, identification of the accused in an identification parade or such corroboration by which their participation can be established. In the instant case the evidence of, identification was rejected by the learned trial Judge, for good and valid reasons. As regards recoveries of five items of articles alleged to have been stolen and recovered from the persons of the appellants and the acquitted‑ accused, they have also been rejected for cogent reasons. It was surprising that ten persons who were alleged to have committed the dacoity and had taken away some articles, the list whereof was given by the complainant to the police, after his statement was recorded, not one item from that list was recovered from any of the appellants or the acquitted accused, after they were arrested. With this background, it is not safe for us to accept the recovery of the two guns from two of the appellants. The recovery witnesses having been disbelieved qua the three watches and the two Kheses alleged to be belonging to the complainant party, cannot be accepted qua the two guns P.12 and P.16. It appears that the whole lot of recovered items ‑were planted in the instant case by the police. 31.

32. The upshot of the above discussion is that whatever evidence has been relied upon by the learned Punjab Special Court to convict the appellants, cannot be accepted in the instant case. The appellants are entitled to the benefit of doubt.

33. For the foregoing reasons, this appeal is accepted and the conviction and sentences of Shan alias Shana, Jafar Hussain alias Kala, Rehmat Ali, Ahmad Ali and Nazir Hussain, appellants, are set aside. They shall be released forthwith if not required in any other case. Fines, if recovered from them, shall be refunded to them. M.B. A. /S‑278/L Appeal accepted .