' SARDAR MUHAMMAD SHAMIM KHAN, J.---This judgment will dispose of Criminal Appeal No.3 of 2007 filed by Noor Muhammad convict, Criminal Appeal No.114 of 2007 filed by Rab Nawaz, convict Criminal Appeal No.40 of 2007 filed by Muhammad Rafique, convict against the judgments dated 21-12-2006 passed in case F.I.R., No.443 of 2004 dated 27-11-2004, under sections 302, 397, 411 and 34 of PPC, Police Station City. Shujabad, District Multan, whereby the appellants were convicted by learned Addl. Sessions Judge, Multark as under:-- ' Noor Muhammad, appellant was convicted under 302(b), P.P.C. And sentenced to Death and also a fine of Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C. And in default thereof he was to undergo for three months' S.I. Sentence of death was subject to its confirmation by the High Court. He was also convicted under section 97, P.P.C. Read with section 392, P.P.C. And sentenced to Ten Years' R.I. And a fine of Rs.25,000 and in default thereof he was to further undergo for Six Months' S.I. He was further convicted under section 411 of P.P.C. And sentenced to R.I. For three years. He was extended benefit of section 382-B of Cr.P.C. All the sentences awarded to the appellant were ordered to run concurrently.
' Rab Nawaz, appellant was convicted under section 397, P.P.C. Read with sections 392, P.P.C. And sentenced to Ten Years' R.I. And a fine of Rs.25,000. In default thereof, he was to further undergo R.I.
For six months. He was also convicted under section 411, P.P.C. And sentenced to R.I. For three years.
He was extended benefit of section 382-B of Cr.P.C. All the sentences awarded to the appellant were ordered to run concurrently.
' Muhammad Rafique, appellant was convicted under section 397, P.P.C. Read with section 392, P.P.C. And sentenced to ten years' R.I. And a fine of Rs.25,000. In default thereof to further undergo six months', S.I. He was also convicted under section 411, P.P.C. And sentenced to Three Years' S.I. He was extended benefit of section 382-B, of Cr.P.C. All the sentences were ordered to run concurrently.
' This judgment shall also dispose of Criminal Appeal No.47 of 2007 and Criminal Appeal No.48 of 2007, filed by Fida Hussain, complainant against the acquittal of Rab Nawaz and Muhammad Rafique to the extent of sections 302 and 34, P.P.C., respectively.
2. Murder Reference No.275 of 2007 for confirmation or otherwise of death sentence of Noor Muhammad, appellant shall also be disposed of through this single judgment.
3. Brief facts of the prosecution case as narrated in the F.I.R., Exh.PE by Fida Hussain, complainant/P.W.7 are that Maqbool Hussain, his brother, Muhammad Azam and Ghulam Akbar were dealing in Cotton business. On 27-11-2004 after ASAR prayer, he along with his aforementioned brother and P.Ws.' Muhammad. Azem and Ghulam Akbar were returning to their homes on bicycles after receiving Rs.1,30,000, the price of cotton from Lodhi Cotton Factory, Shujabad. At about 7-00 p.m. When they reached at Kacha path in front of the land owned by one Master Ahmad Khan, suddenly four persons, who had muffled their faces with CHADDERS, out of them, two were armed with pistols, one armed with carbine and one armed with hatchet, emerged there and over-powered them and took them inside the mango garden owned by said Ahmad Khan. The above said amount was with Maqbool Hussain. The accused persons asked them to raise their hands on gun point and started searching them. During scuffle they snatched the above said amount from Maqbool Hussain but in the meanwhile the CHADDARS from their faces fell clown and the said accused persons were identified by them as Rab Nawaz, Noor Muhammad, Muhammad Rafique and Sajjad Ahmad (since P. 0 . ) They tried to apprehend the said accused persons, whereupon the accused Noor Muhammad made straight fire with .12-bore pistol which hit on his right thigh and he became seriously injured and fell down. They raised hue and cry whereupon all the accused persons made good their escape from the spot. They took Maqbool Hussain and left for Civil Hospital, Shujabad but he succumbed to the injury on the way to the hospital. According to the complainant, accused Rab Nawaz had the knowledge about their business and the fact that complainant and others had proceeded for taking the money and thus he along with his other co-accused committed the offence.
4. After completion of investigation, challan was prepared and submitted before the learned trial court for trial. Ghulam Abbas alias Sajjad Ahmad, accused was declared proclaimed offender.
Charge against the accused persons Noor Muhammad and Rab Nawaz was framed to which, they pleaded not guilty and claimed to be tried, whereas on an application under section 7 of Juvenile Justice System Ordinance, 2000, Muhammad Rafique, accused was declared juvenile and tried separately under. Juvenile Justice System Ordinance, 2000.
5. In order to prove its case against Noor Muhammad and Rab Nawaz, the prosecution has examined as many as Eleven (11) witnesses.
' P. W.1 Muhammad lqbal C/2418 executed non bailable warrants of arrest of Ghulam Abbas alias Sajjad Ahmad.
' P. W.2 Ghulam Nasir 860/C deposed that of 16-1-2005 he was given two Sealed parcels said to contain pistol .12-bore and empty of .12 bore for its delivery to the office of the Forensic Science Laboratory, Lahore on 17-1-2005; intact, which he did.
' P. W.3 Muhammad Yousaf 257/C deposed that on 16-1-2005 he was given a sealed parcel said to contain blood-stained earth for its delivery to the office of the Chemical Examiner, Lahore, Lahore on 17-1-2005, intact, which he did.
' P. W.4 Habib-ur-Rehman 2110/HC deposed that on 16-1-2005 he was given three sealed parcels said to contain blood-stained earth, second containing pistol .12-bore and third containing four empty cartridges. He handed over the sealed parcel said to contain blood-stained earth to Muhammad Yousaf 257/C for onwards transmission to the office of Chemical Examiner, Lahore.
And remaining two sealed parcels were ha handed over by him to Ghulam Nasir 860/C for onward transmission to the office of Forensic Science Laboratory, Lahore.
' P. W.5 Muhammad Nadeem 1589/C deposed that on 27/28-11-2004 he escorted the dead body of the deceased to the Mortuary for autopsy purposes. After conduction of autopsy, the doctor handed over to him last worn clothes of the deceased, which he handed over to then vide memo Exh.PC.
' P. W.6 Muhammad Haneef, Patwari deposed that on 27-12-2004, he on the direction of police and on the pointation of the witnesses, he prepared the site plan, Exh.PD, Exh. PD/1 and Exh. PD/2.
' P. W. 7 Fida Hussain, who was complainant of this case, deposed in support of the prosecution version.
' P. W. 8 Muhammad Azam was the witness of ocular account, who supported the prosecution version.
' P. W.9 Haji Abdul Sattar, identified the dead body of Maqbool Ahmad, deceased at the time of post mortem examination.
' P.W.10 Dr. Muhammad Arshad Ali, Medical Officer, THQ Hospital, Shujabad, District Multan conducted the post mortem examination of Maqbool Hussain, deceased and found the following injury on his person.
' 15 cm x 15 cm vertically placed spindle hole with sharp cut everted margins acute angles, tissue was clean cut, was present on the postro-lateral aspect of right thigh, 7 cm above knee. In the centre of upper margins (anterior) a spindle shaped wound 3 cm linear shaped area with abrasion collar and irregular lacerated margins -Was present. In the centre of posterior margins of wound, also 3 cm linear shaped area with abrasion collar and irregular lacerated margins was present (Mirror image of death other). Central area of sharp-cut wound was lacerated (muscle crushed) and track was going inwards posterior to femur (intact). Fist can be placed posterior to femur in track (entry wound. 16 cm x 6 cm vertically placed spindle shaped sharp-cut wound with skin-tag at upper-end was present on medial side of right thigh. 4cm above knee in the region of adductor canal. Lower end of wound had acute angle and upper end was bifurcated due to skin- tag and both angles were rounded (as shown in diagram). Anterior margin of wound was clean- cut and everted. Posterior margin was also clean-cut having multiple skin-tag (signs of hesitation). Tissue and muscles were clean-cut at periphery and crushed in central area posterior of femur. Skin, soft tissues, muscle and neuron-vascular bundles were missing in wounds and their clean-cut ends (muscles and neuron-vascular bundles) were seen in wounds periphery (exit wound.)
' In the opinion of doctor cause of death was haemorrhagic shock caused by profuse bleeding from femoro-poplititeal vessels of right thigh due to fire arm injury. The probable time between injury and death was half to one hour and probable time between death and post modem examination was 12 to 24 hours.
P.W.11 Sakhawat Ali, S.-I. Conducted investigation of this case and deposed about the steps of investigation.
6. The Deputy District Attorney gave up Ghulam Abbas and Mazhar Hussain P Ws. Being unnecessary on the application submitted by learned counsel for the complainant, tendered in evidence the report of Chemical Examiner Exh.PT and of. Serologist Exh.PU and close the prosecution case.
7. Against Muhammad Rafique, the aforementioned prosecution evidence was recorded separately under Juvenile Justice System Ordinance, 2000.
8. After recording the prosecution evidence, the appellants were examined under section 342 of Cr.P.C. Wherein they stated that they did not want to appear and depose on oath as required under section 340(2) of Cr.P.C. In reply to the question that why this case is against you and why the P.Ws.
Have deposed against you, Muhammad Rafique, appellant replied as under:-- ' It was an unseen, untraced night occurrence. I have been falsely roped in this case due to political enmity with MPA, Minister Punjab Rana Qasim Noon and Police registered this case on the direction of said Minister. In fact the deceased abducted his second wife and the deceased was person of ill repute in the area and was the notorious person, who had illicit relation with other women. When he was waiting for his fiancee (Mashooq) in the garden, any unknown person committed his murder with gun/knife, dagger. According to the statement of P. W.10 no person was present at the time of occurrence to help the deceased to provide him immediate treatment like wise pressure, bandage/leg elevation etc or immediately shifting to Hospital because there were chances of his survival. All the P. Ws. Are interested witness complainant is real brother of the deceased and other P. Ws. Are also his close relatives, who deposed falsely on the direction of the said Minister and police. Noor Muhammad and Rab Nawaz, appellant also took the same stance while replying to the question.
9. After conclusion of the trial above mentioned conviction and sentence was passed against the appellants.
10. The appellants have challenged the validity of judgment dated 21-12-2006 passed by the learned trial court, whereas the complainant has challenged the judgment to the extent of acquittal of Rab Nawaz and Muhammad Rafique, convicts under sections 302 and 34,P.P.C.
11. Learned counsel appearing on behalf of the appellants contended that the occular account of this case was furnished by Fida Hussain, P. W.7, who was real brother of Maqbool Hussain whereas Muhammad Azam, P.W.8 was the nephew of the deceased; that according to prosecution version, the witnesses along with the deceased were returning to their homes after receiving Rs.1,30,000, the price of cotton from Lodhi Cotton Factory but this fact was not established by the prosecution during investigation as according to Sakhawat, S.-I./P.W.11, who conducted the investigation of this case, P.Ws. Did not provide any proof that they were returning after receiving the aforementioned amount from the factory nor he himself confirmed from the factory that aforementioned amount was received by the witnesses; that F.I.R. Was not lodged on 27-11-2004 at about 8-45 p.m. As asserted by the complainant rather it was lodged after consultations and deliberations; that occurrence took place at night time but no source of identification was given by the prosecution that how the appellants were identified by them; that according to prosecution own version; the appellants had muffled their faces at the time of occurrence and P.Ws. Along with the deceased were dragged in a nearby garden and during this scuffle CHADARs of appellants were removed and they identified the appellants but according to FI.R. Appellants had muffled their faces at the time of occurred ice and they were also having CHADARS on them, so, simple removal of CHADARs would not unveil their faces as they had already muffled their faces; that according to Dr. Muhammad Arshad Ali. P.W.10 he did not observe any signs of dragging either on the person of the deceased or any of the P.Ws., so, reason of removal of CHADARs from the faces of the appellant is also falsified by the medical evidence that the prosecution story that P.Ws. Along with deceased were proceeding to their house after receiving price of cotton from the cotton factory was falsified during investigation as according to the I.O. House of the deceased and P.Ws. Were towards South but they were proceeding towards North; that the occular account of prosecution is not corroborated by the medical evidence as according to the prosecution story Noor Muhammad, appellant fired with Carbine .12-bore. Which landed on the right thigh of Maqbool Hussain, deceased out according to the evidence of Dr. Muhammad Arshad Ali, P.W.10 there was fire arm injury on the right thigh of the deceased and this fire arm injury was mutilated with sharp edged weapon. Had the witnesses present at the time of occurrence, they must had explained hat how the deceased received sharp edge weapon injury around the firearm injury; that recovery of Carbine .12-bore from the possession of Noor Muhammad, appellant and positive report from Forensic Science Laboratory, Lahore is inconsequential as recovered Carbine and empty were simultaneously dispatched to be office of Forensic Science Laboratory, Lahore. Lastly, it has been prayed that by accepting these appeals, the appellants are liable to be acquitted.
12. On the other hand learned D.P.G. Has contended that occurrence took place at 7-00 p.m.
Whereas matter was reported to the police at 8-45 p.m. So it was a promptly lodged F.I.R. Which excludes the chances of consultations and deliberations; that a though Fide Hussain, P.W.7, is real brother of deceased whereas Muhammad Azam, another eye-witness is nephew of the deceased but they had no enmity with the appellants to falsely implicate them in his case; that witnesses have explained the reason of their presence with the deceased as they were accompanying deceased after receiving price of cotton from Cotton r Factory; that appellants were identified as during struggle the CHADARs were removed from the faces of the appellant; that medical evidence is also in line, with occular account; that recovery of Carbine .12-bore from the possession of Noor Muhammad, appellant is a corroborative piece of evidence against him as according to the report of Forensic Science Laboratory, Lahore, the empty was fired from the Carbine .12-bore recovered at the instance of door Muhammad, appellant; that prosecution has proved its case beyond reasonable doubt, so, it has been prayed that appeals of the appellants are liable to be dismissed.
13. We have heard the arguments advanced by the learned counsel for the parties carefully and perused the record with care with their able assistance.
14. This occurrence took place on 27-11-2004 at about 7-00 p.m. Whereas according to Fida Hussain, complainant P.W.7 he lodged the F.I.R. At 8-45 p.m. At the Police Station but perusal of evidence reveals that F.I.R. Was not lodged at the time and place as asserted by Fida Hussain, complainant rather it Was lodged after consultations and deliberations. In his cross-examination Fida Hussain, P.W.7/complainant as frankly conceded that he did not make any statement before the police on 27-11-2004, 30-12-2004 and 5-1-2005. If complainant did not make any statement before the police on 27-11-2004 then how police lodged the F.I.R. On the basic, of statement or Fida Hussain, complainant on 27-11-2004 at 8-45 p.m. It means that the F.I.R. Was fabricated by the police, after consultations and deliberations. During cross-examination Muhammad Azam, P.W.8 stated that statement of Fida complainant was recorded by the police at the spot, which is clear indicative of the fact that F.I.R. Was not lodged at the police station as stated by the complainant.
Perusal of evidence of complainant also reveals that copy of F.I.R. Was not delivered to him and he had frankly admitted that he did not go to the police station to collect the copy of F.I.R.
Complainant again stated that he did not remember as to when he had gone to the Police Station in order to collect the copy of F.I.R. According to the prosecution version, immediately after the occurrence the dead body of the deceased was taken to the hospital but according to the evidence of Dr. Muhammad Arshad Ali, P.W.10, the postmortem examination was conducted on the dead body on 28-11-2004 at 1-00 p.m., with an extraordinary delay of 18-hours. No explanation has been given by the prosecution for such an extraordinary delay in conduction of postmortem examination on the dead body of the deceased. This fact also leads us to the conclusion that as F.I.R. Was not lodged at that time and prosecution was building up its case by consultations -and deliberations, therefore post mortem examination was conducted with such extraordinary delay.
15. Not only the F.I.R. Was fabricated by the police rather statement of eyewitness Muhammad Azam was also maneuvered by the I.O. As according to Muhammad Azam P.W.8., eye-witness of occurrence, his statement under section 161 of Cr.P.C. Was not recorded at the spot whereas according to Sakhawat Ali, S.-I., statement at Muhammad Azam P.W.8 under section 161 of Cr.P.C.
Was recorded at the spot, so it is shrouded in mystery that where the statement, of Muhammad Azam, P.W. Was recorded by the I.O.
16. In This case prosecution could not establish the time, when occurrence took place. According to the evidence of Sakhawat Ali, S.-I./P.W.11, who conducted the investigation, the time of occurrence in the column of F.I.R. Was given as 6-00 p.m. Whereas according to the contents of the F.I.R. The time of occurrence was given as 7-00 p.m. The I.O. Also stated that he incorporated time of occurrence as 7-30 p.m. In the relevant column of inquest report Exh.PQ. Even Fide Hussain, complainant during cross-examination submitted that he was unable to tell the exact time of occurrence and according to him it happened alter Maghreb Prayer time, which means that prosecution is not definite regarding the time of occurrence.
17. It has been noticed that occular account of this occurrence has been furnished by Fida Hussain, complainant/ P.W.7, who is real brother of Maqbool Hussain, deceased and Muhammad Azam, P.W.8, who is nephew of the deceased. Although both these eye-witnesses had no enmity with the appellants yet they have not established the reason of their presence at the time of occurrence.
According to prosecution version deceased as well as witnesses were dealing in Cotton Business and on 27-11-2004 they were returning to their homes after receiving amount of Rs.1,30,000, the price of cotton from Lodhi Cotton Factory. According to Sakhawat Ali, P.W.11, he did not verify from Lodhi Cotton Factory that, if the aforementioned amount was received by the deceased and witnesses from there or not. He further stated that he did not ask complainant or witnesses to provide him the proof that they had taken money from said factory. According to Fida Hussain, complainant/P.W.7, they started on their bicycles towards factory at about 9-00/ 10-00 a.m.
Whereas stance of Muhammad Azam, P.W.8 was that they started towards factory at about 12-00 noon. The factory is situated at a distance of few kilometes from the house of deceased and the prosecution witnesses but it is ununderstandable that why they were returning back at 7-00 p.m.
When occurrence took place as it has not been explained by the prosecution that why a whole day was spend by them in order to take amount of Rs.1,30,000 from the said factory. Usually the payment is made till noon time by the factories to its clients. According to prosecution version, P.Ws. Along with deceased were proceeding to their houses after receiving the amount of cotton and on their way this occurrence took place. But during investigation conducted by Sakhawat Ali, S.-I. /P.W.11 it transpired that houses of the deceased as well as complainant were towards South but instead of going towards South to their homes, they were proceeding towards North, which was opposite side of their houses, where occurrence took place, therefore, reason given by the P.Ws.
That they were accompanying with the deceased is falsified by the evidence available on the record.
18. According to the prosecution version, when deceased along with prosecution witnesses reached at KACHA path in front of land owned by Master Ahmad Khan, the appellants emerged there and dragged them inside the aforementioned garden owned by said Master Ahmad Khan where this occurrence took place. Perusal of evidence of Fida Hussain, Complainant/ P.W.7 reveals that he along with witnesses as well as deceased were dragged up to a distance of 30-karams inside the aforementioned garden. This important piece of evidence is falsified by the evidence of Dr. Muhammad Arshad Ali, P.W.10, who observed fire arm injury as well as shapr edge weapon injury on the person of Maqbool Hussain, deceased and besides this wound he did not observe any other injury on the person of the deceased and he also did not observe any sign of violence of struggle.
The clothes of the dead body of the deceased were also not stained with dust or mud. Doctor did not observe any sign of dragging on the person of the deceased. Prosecution produced two eye- witnesses in order to prove its case. Both these eye-witnesses were not medically examined by the doctor. Had the deceased as well as prosecution witnesses been dragged by the appellants upto a distance of 30-karams, there must had been sign of dragging on their persons. As there were no sign of dragging on the person of prosecution witnesses, so, they were not medically examined in this regard which lead us to the conclusion that prosecution witnesses were not present at the spot and occurrence was not committed in the manner as alleged by the prosecution.
19. Admittedly, this occurrence took place at night time. Complainant has not furnished any source of identification in the F.1.R. That how the appellants were identified by him. During cross- examination complainant has categorically admitted that it is correct that there was no light at the place of occurrence. Although during cross-examination Muhammad Azam, P.W.8 stated that the appellants were identified by him in moon lit night yet as the occurrence took place in the garden, therefore, in the presence of mango trees, it was not possible for the P.Ws. To identify the appellants in moon lit night. This P.W. Also did not explain that what was the date of Islamic Calendar and whether it was full moon or dark night. Perusal of site plan Exh.FD prepared by the Patwari also reveals that Muhammad Azam, P.W.8 did not mention that he identified the appellant in moon lit night at the time of its preparation. Another important aspect of this case is that according to prosecution own version, the appellants had muffled their faces at the time of occurrence and deceased and the P.Ws. Were dragged by them inside the garden and during this scuffle CHADARs were removed from the appellants, so, appellants were identified by them. As already observed neither the deceased nor the witnesses were dragged by the appellants inside the garden, so, the reason given by the P.Ws. For removal of CHADARs of the appellants has been falsified by the medical evidence as the deceased and the P.Ws. Were neither dragged nor any struggle took place, therefore, reason of removal of CHADARs could not be established by the prosecution.
Secondly, it has been mentioned by the P.Ws. That the appellants had muffled their faces and they were, also having CHADARs on their persons, so removal of CHADARs only would not unveil the faces of the appellants because the prosecution witnesses have nowhere mentioned that faces of the appellants were unveiled during struggle. Therefore, in such situation, the appellants could not be identified even if the P.Ws. Would have been present there.
20. The occular account furnished by Fida Hussain, complainant/P.W.7 and Muhammad Azam, P.W.8 is not in line with medical evidence. According to both eye-witnesses, Noor Muhammad, appellant fired with Carbine .12-bore, which landed on the right thigh of Maqbool Hussain, deceased. Although Dr. Muhammad Arshad Ali, P.W.10 observed fire-arm injury on the right thigh of Maqbool Hussain, deceased yet this fire-arm injury was mutilated with sharp edged weapon which could be of a dagger, knife or any sharp edged weapon. The central area in the wound of sharp edge wound was with fired arm measuring 3 c.m. And total length of wound was 15 c.m, and as such sharp edged wound was 6 c.m. On each side of fire-arm wound. According to the evidence of Doctor this fire-arm injury was multilated by sharp edge weapon when patient was near to death.
These wounds were spindle in shape, Both eye-witnesses had not explained that if they were present at the time of occurrence, how deceased received sharp edge weapon injury, which is around fire-arm wound. Had the witnesses present at the time of occurrence, they must have explained the sharp edged weapon injury around fire arm injury as observed by the Doctor.
21. Maqbool Hussain, deceased received one fire arm injury on the right thigh which is a non-vital part of the body. During cross-examination, Dr. Muhammad Arshad Ali, P.W.10 frankly admitted that "it is correct that if deceased would have given immediate treatment like pressure bendage, tourniquet, leg elevation or immediately shifted to Hospital, there were chances of his survival." The prosecution witnesses, who were close relatives of the deceased did not wrap the wound and they also did not make any attempt to stop the bleeding as admitted by Fida Hussain, complainant/P.W.7 during his cross-examination. According to the evidence of Doctor, time between injury and death was half to one hour. This was sufficient time to provide the deceased first aid by making pressure bandage around the wound or immediately shifting the deceased to the hospital but as no such steps were taken by the P.Ws. So, we have no hesitation in holding that these P.Ws. Were not present at the time of occurrence.
22. Another factor which leads, us to the conclusion that the witnesses were not present at the time of occurrence is that according to evidence to both eyewitnesses, their hands and clothes were smeared with blood at the time of occurrence and that they had shown their hands as well as blood-stained clothes to the 1.0. At the place of occurrence but this fact has not been confirmed by the I.O.
23. The prosecution evidence against Noor Muhammad, appellant regarding the recovery of Carbine .12-bore would not be useful for prosecution as police did not secure any empty from the place of occurrence at the time of its first visit. Report of Forensic Science Laboratory, Lahore Exh.PS reveals that Carbine .12-bore recovered from Noor Muhammad, appellant and empty cartridge was received in the office of Forensic Science Laboratory, Lahore simultaneously on 17-1-2005, therefore the positive report of FSL would be inconsequential and would not be a corroborative piece of evidence against Noor Muhammad, appellant. The recovered pistols from the possession of Rab Nawaz and Muhammad Rafique were not sent to the office of Forensic Science Laboratory.
Even otherwise, Rab Nawaz and Muhammad Rafique appellants, did not use their alleged weapons during the occurrence: So far as the recovery of amount of 20,000 from Noor Muhammad, appellant, Rs.22,000 from Rab Nawaz, appellant and Rs.18,000 from Muhammad Rafique, appellant is concerned, it would also not improve the case of the prosecution as it was not established during investigation that the recovered amount was the same, which was robed by the appellants at the time of occurrence.
24. In view of what has been discussed above, we are of the considered view that it was an unseen occurrence, the prosecution witnesses were not present at the time of occurrence and that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt; therefore, CRIMINAL APPEAL NO.3 OF 2007 (NOOR MUHAMMAD V. THE STATE), CRIMINAL APPEAL NO.114 of 2007 (RAB NAWAZ V. THE STATE) and CRIMINAL APPEAL No.40 of 2007 (MUHAMMAD RAFIQUE V. THE STATE), are accepted. The impugned judgment dated 12-12-2006 passed by the learned trial Court against the appellants is ' set aside. Noor Muhammad, Rab Nawaz and Muhammad Rafique, appellants are acquitted from the charges levelled against them by the prosecution. Appellants are ordered to be released forthwith, if not required in any other case. Murder Reference No.275 of 2007 is answered in negative.
DEATH SENTENCE IS NOT CONFIRMED.
MURDER REFERENCE IS ANSWERED IN NEGATIVE.
25. Criminal Appeal No.47 of 2007 (Fida Hussain v. The State and another) and Criminal Appeal No.48 of 2007 (Fida Hussain v. The State and another) were filed by the complainant against the acquittal of Rab Nawaz and Muhammad Rafique, respondents under section 302/34, .P.P.C. Perusal of order sheet reveals that the same have not been admitted for regular hearing so far. Today neither the complainant himself nor his learned counsel entered appearance before this Court, therefore, these appeals are dismissed due to non-prosecution. Even otherwise, Criminal Appeal No.114 of 2007 filed by Rab Nawaz, and Criminal Appeal No.40 of 2007 filed by. Muhammad Rafique against their conviction have been accepted by this Court and they have not been acquitted of the charge, so, Criminal Appeal No.47 of 2007 and Criminal Appeal No.48 of 2007 have become infructuous and disposed of.