Sardar Muhammad Sarfraz Dogar, J:- Muhammad Nadeem, Mulazim Hussain, Alamdar Hussain, Khadim Hussain and Muhammad Aslam were convicted and sentenced in case FIR No.408/2007, dated 21.11.2007, for the offences under Sections 302, 324, 365, 148, 149 PPC, registered with Police Station Sarai Mughal, Tehsil Pattoki, vide judgment dated 19.7.2010 passed by the learned Additional Sessions Judge Pattoki as under:- MUHAMMAD NADEEM Under Section 302(b) PPC, to suffer Death. He was also ordered to pay compensation of Rs.2,00,000/- and in default to suffer Simple Imprisonment for six months.
Under Sections 365/149 PPC, to suffer Rigorous Imprisonment equal to the period already undergone by him. He was also ordered to pay fine of Rs.5000/- and in default to suffer Simple Imprisonment for one month.
Under Section 147 PPC, he was directed to pay fine of Rs.5000/- only and in default to suffer Simple Imprisonment for one month.
MULAZIM HUSSAIN Under Sections 302(b)/34 PPC, to suffer 'Imprisonment for Life'. He was also ordered to pay Rs.2,00,000/- (rupees two hundred thousands only) as compensation and in default to suffer Simple Imprisonment for six months.
Under Section 365/149 PPC, to suffer Rigorous Imprisonment equal to the period already undergone by him. He was also ordered to pay fine of Rs.5000/- and in default to suffer Simple Imprisonment for one month.
Under Section 147 PPC, he was directed to pay fine of Rs.5000/- only and in default to suffer Simple Imprisonment for one month.
Benefit of Section 382-B, Cr.P.C. Was also extended to him.
ALAMDAR HUSSAIN, MUHAMMAD ASLAM & KHADIM HUSASIN Under Section 365/149 PPC, to suffer Rigorous Imprisonment for one year. They were also ordered to pay fine of Rs.20,000/- within one month, failing which each of them were ordered to suffer Simple Imprisonment of two months.
Under Section 544-A Cr.P.C., they were directed to pay compensation of Rs.5,000/- to Waseem Abbas and Zaheer Ahmed PWs 4 and 5.
Under Section 147 PPC, they were directed to pay fine of Rs.5000/- each within one month and in default to suffer Simple Imprisonment for one month.
Benefit of Section 382-B, Cr.P.C. Was also extended to them.
Mulazim Husasin (appellant) has challenged his conviction and sentence before this Court through Criminal Appeal No.2232 of 2010, Muhammad Nadeem (appellant) has assailed his conviction and sentence before this Court through Criminal Appeal No.2204 of 2010, Muhammad Aslam, Khadim Hussain and Alamdar Husain (appellants) have preferred Criminal Appeal No.1917 of 2010 vis-a-vis their convictions and sentences recorded by the learned trial Court. The complainant has filed Criminal Revision No.1054 of 2010 seeking enhancement of sentence awarded to Mulazim Hussain (appellant) by the learned trial Court and Criminal Revision No.1055 of 2010 for enhancement of Muhammad Aslam, Khadim Hussain and Alamdar Hussain (appellants). We have heard all these appeals along with Murder Reference No.496 of 2010 seeking confirmation of the sentence of death passed by the learned trial court against Muhammad Nadeem (appellant) and we propose to decide all these matters together through the present consolidated judgment.
3. According to the facts of this case unfolded in the F.I.R. (Exh. PW16/2) on 21.11.2007 at 4:00 P.M.
Rana Liaqat Ali complainant (PW-10) lodged an application to SHO Police Station Sarai Mughal Tehsil Pattoki District Kasur against Muhammad Nadeem, Mulazim Hussain, Alamdar Hussain, Khadim Hussain and Muhammad Aslam stating therein that he was resident of Kot Jan Muhammad Hanjrai Kallan and cultivator by profession. On the same day at about 21/2 P.M. He was available at his factory situated in katchapacka when he received information that Waseem (nephew) and Zaheer Ahmed have quarreled with accused and that the accused have detained them in a room. On this information, the complainant along with Muhammad Zubair and Jameel Ahmed alias Allah Ditta went to KotSarang. Complainant's son Imran Abbas has also accompanied them. The accused while seeing them started firing. Accused Khadim Hussain and Muhammad Aslam both armed with gun 12 bore raised lalkara to teach lesson to Rana Liaqat and his companions for quarreling with them and that they be killed, whereupon accused Nadeem armed with gun 12 bore fired a straight shot, which hit complainant's son on left thigh and testis. Accused Mulazim Hussain fired a shot with his gun 12 bore, which hit Imran on front side of right thigh.
Accused Alamdar Hussain, Khadim Hussain and Khadim Hussain all armed with guns 12 bore made straight firing upon complainant and his companions. They saved themselves by taking shelter beside the walls. In the meanwhile, the accused decamped making firing. Then, the complainant unbolted the door of room and Waseem and Zaheer were got released. Imran was put in a car and was being taken to Pattoki Hospital. But Imran succumbed to the injuries on the way near Shaikham.
4. The investigation of this case had been conducted mainly by Ghulam Hussain Sub Inspector (PW-15) and partly by Fakhar-udDin Sub Inspector (PW-14) and during the investigation, apart from the other usual and necessary steps taken by them, the appellants and their co-accused were arrested and a gun 12 bore each had been recovered from the possession of the appellants.
Upon completion of the investigation, report under Section 173 Cr.P.C. Was submitted before the learned trial Court.
5. At the commencement of the trial, the learned trial Court framed a charge initially with two heads under Sections 148 PPC and under Section 302 PPC read with Section 149 PPC on 22.1.2009 and thereafter, on 27.3.2009, the learned trail Court framed additional charge with two heads under Section under Section 365 PPC read with Section 149 PPC and under Section 324 PPC read with Section 149 PPC against the appellants to which they pleaded not guilty and claimed a trial.
6. During the trial, the prosecution produced seventeen witnesses in support of its case against the appellants. Rana Liaqat Ali complainant (PW-10), Jameel Ahmed alias Allah Ditta (PW-11), Waseem Abbas (PW-4) and Zaheer Abbas (PW-5) have furnished the ocular account of the incident in question and they have also deposed about the motive and recovery. Shabbir Ahmed (PW-1), Nasir Ali (PW-2) and Muhammad Azam (PW-3) proved the recovery of weapons effected from the appellants during investigation of this case. The medical evidence was provided by Dr. Abdul Majid (PW-6). Fakharud-Din Sub Inspector (PW-14) and Ghullam Hussain Sub Inspector (PW-15) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was formal in nature.
Dr. Abdul Majid, (PW-6) on 22.11.2007 at 7:15 A.M. Had conducted postmortem examination upon the dead body of Imran Abbas deceased and observed following injuries on his person:- INJURIES
1. A lacerated wound of 1 x 1 cm deep inverted on front outer side of left thigh. 24 cm from left knee joint. Margins were inverted. Bruised. Burning and blacking were present.
2. A lacerated wound of 1 x 1 cm deep inverted on front side of left thigh middle part. 20 cm from left knee joint. Margins were inverted. Bruised. Burning and blackening were present. (entry wound)
3. A lacerated wound of 1 x 1 cm deep inverted on front of medial side of left thigh. 28 cm from knee joint. 9 cm from left testis. Margins were inverted. Bruised. Burning and blackening were present.
(entry wound)
4. A lacerated gutter wound 2 x 3 cm skin deep on front medial side of left thigh. 22 cm from left knee joint. Burning and blackening were present.
5. A lacerated gutter wound 2 x 1 cm skin deep on front medial side of left thigh upper part. 28 cm from left knee joint. 6 cm below left testis. Blackening and burning were present.
6. A lacerated gutter wound 4 x 1 cm skin deep on medial side of left thigh. 21 cm from left knee joint. 13 cm below left testis. Blackening and burning were present.
7. A lacerated gutter wound 2 x 1 cm skin deep on lower part of left testis. Blackening and burning were present.
8. A lacerated gutter wound 2 x 1 cm skin deep on lower part of right testis. Blackening and burning were present.
9. Eight lacerated wounds each 1 x 1 cm deep inverted in an area 14 cm vertically 12 horizontally on front medial side of right thigh upper part. 16 cm from right knee joint 3 cm blow right testis.
Margins were inverted. Bruised. (entry wound).
After conducting the postmortem examination, the doctor rendered the following opinion.
OPINION.
All the injuries were ante-mortem in nature, caused by firearm weapons. In his opinion, the cause of death in this case was due to haemorrhage and shock. The injuries No.1,2,3,7,8,9 were sufficient to cause death in ordinary course of nature. Total four metallic bodies and one cardboard were recovered and handed over to the police.
The probable time between injury and death was within few minutes and between death and postmortem was within 15 to 20 hours. On completion of postmortem, He handed over a well stitched dead body along with carbon copy of post mortem report, signed police papers, sealed bottle containing four metallic bodies and one cardboard and last worn clothes of the deceased to the police.
7. In their statements recorded under Section 342 Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
They, however, opted not to make statements on oath under section 340(2) Cr.P.C. Muhammad Nadeem, one of the appellant, produced Muhammad Siddique before the learned trail Court as DW-1 in support of his plea of alibi. He has also produced copy of fard jamabandi (Exh.D1), copy of application (Exh.D2) and copy of report (Exh.D3). The appellants did not produce any witness in their defence.
8. Upon conclusion of the trial the learned trial Court, after finding the prosecution case against the appellants to have been proved beyond reasonable doubt, convicted and sentenced the appellants as mentioned and detailed above. Hence, the present appeals, revisions and the connected Murder Reference before this Court.
9. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. The learned counsel for the appellants have argued that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, they are entitled to be acquitted by this Court. It has been maintained by them that the eyewitnesses produced by the prosecution were related and chance witnesses; the F.I.R. Had in fact been recorded at the hospital; the motive set up by the prosecution had remained far from being proved; the recoveries allegedly effected in this case did not inspire confidence; and the medical evidence had not provided support to the ocular account. Further adds that the circumstances of this case did not warrant passing of a capital sentence against Muhammad Nadeem appellant. As against that the learned Deputy Prosecutor-General appearing for the State and the learned counsel for the complainant have maintained that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt and, thus, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
10. We have also gone through the record with able assistance of learned counsel for the appellant and learned counsel for the complainant as well as learned Deputy Prosecutor General.
11. The occurrence in this case as per FIR (Exh.PW16/2) took place on 21.11.2007 at 2:30 P.M. And the incident was reported to Ghulam Hussain Sub Inspector (PW15) on the same day at 4:00 P.M. At the Civil Hospital Pattoki by Rana Liaqat Ali complainant through written application (Exh.P10/1). The said application (Exh.P10/1) was sent to the Police Station through Muhammad Aqeel 1026/C for registration of case and formal FIR (Exh.PW16/2) was recorded at 4:35 P.M.
Contrary to the above, Ghulam Hussain Sub Inspector (PW-15) in his examination-in-chief deposed that he was on patrol duty when he received information with regard to a murder at Kot Sarangh and that the dead body was taken to Civil Hospital Pattoki. Responding to the said information he along with other police officials reached the Civil Hopsital Pattoki at 3:45 P.M. Where Rana Liaqat Ali complainant (PW-10) presented an application (Exh.P10/1) before him, which he sent to the Police Station for registration of FIR. He inspected the dead body, prepared injury statement (Exh.PW15/2), inquest report (Exh.PW15/3), an application for postmortem examination (Exh.PW15/4), and also recorded the statements of eye witnesses. While facing the cross-examination, he deposed that he received the information in Chak No.41 at 3:30 P.M. He admitted that in police diary No.1 he has written the time as 4:10 P.M. He remained present in the hospital for about 1-1.15 hours. He handed over the inquest report (Exh.PW15/3) to Asghart Ali constable in between 4:00 and 5:00 P.M. The distance between THQ Hospital and Police Station Sarai Mughal is 20 to 22 kilometers. It takes half an hour to reach from Police Station Sarai Mughal to THQ Hospital. He has not mentioned the time of death in column No.3 of the inquest report. He admitted it correct that when he reached the place of occurrence, there was no alleged eyewitness except Zaheer Ahmad and Waseem Abbas Abductee. Muhammad Abbas handed over to him the copy of FIR at 6:00 P.M. There is nothing on record to establish that who has furnished the information to Ghulam Hussain Sub Inspector (PW15). He also failed to point out that who has informed him that the dead body was sent to hospital. While facing the cross-examination, he admitted it correct that he has mentioned the place (Moqam) as Kot Saragh in the last column of the inquest report. All the above noted contradictions with regard to the time of alleged occurrence and its reporting time and in the initial investigation conducted by Ghulam Hussain S.I. (PW-15) constrained us to formulate an opinion that in this case the FIR was registered by the police after making preliminary investigation, therefore, the same cannot be safely relied upon. Guidance is sought from Iftikhar Hussain and other v. The State (2004 SCM R 1185). The relevant extract from the said judgment is reproduced as under:- "One view out of the two could be that after the happening of incident, PW Muhammad Fazeel did not rush to the police station for lodging of FIR. He remained present at the spot when the police itself reached there but the lodging of the F.I.R. Was delayed intentionally and after having conducted preliminary inquires or consultation, F.I.R. Was lodged with the delay.
12. As far as medical evidence advanced by the prosecution to prove the charge against the appellants is concerned, we have noticed that the postmortem examination on the dead body of Imran Abbas deceased was conducted on 22.11.2007 at 7:15 A.M. Whereas; the complainant (PW-10) deposed that he, immediately, after the occurrence i.e. On 21.11.2007 at 2:30 P.M. Took the dead body to the hospital. Simultaneously, Ghulam Hussain Sub Inspector (PW-15) while appearing before the learned trial Court deposed that he reached at the Civil Hospital Pattoki on 21.11.2007 at 3:45 P.M.
And prepared injury statement and inquest report by moving an application for conducting postmortem examination on the dead body of Imran Abbas deceased. No reason is explained by the prosecution for causing such inordinate delay in conducting the postmortem examination on the dead body of deceased Imran Abbas, which constrained us to establish the opinion that the delay was caused because of procuring and planting the eyewitnesses. In the given state of affairs, we humbly refer the case of Irshad Ahmed v. The State (2011 SCM R 1190), wherein it is held that:- "Delay in post-mortem examination is generally suggestive of a real possibility that time was consumed by police in procuring and planting eye-witness and in cooking up a story for prosecution before preparing police papers necessary for getting a post mortem examination of dead body conducted."
We noticed the prosecution alleging that during the occurrence the appellants, while seeing the complainant party, started firing upon them. Khadim Hussain and Muhammad Aslam appellants raised lalkara, whereas; Muhammad Nadeem made a fire shot with his gun 12 bore upon Imran Abbas deceased hitting his left thigh and in front of testis. Mulazim Hussain appellant has also been burdened with an attribution of making fire with his gun 12 bore upon Imran Abbas deceased hitting him in front of his right thigh. Whereas, Dr. Abdul Majid (PW-6), while conducting postmortem examination on the dead body of Imran Abbas deceased, has found nine injuries in total out of which four injuries were entry wounds available at outer side of left thigh, front side of left thigh middle part, medial side of left thigh and medial side of right thigh. He also found four metallic bodies and one cardboard in the body of Imran Abbas deceased. The blackening and burning on all the entry wounds were found present. While facing the cross-examination, Dr.Abdul Majid (PW-6) has admitted that blackening only occurs when fire shot is made within distance of three feet. He further admitted that all the pallet injures were not caused from one angle.
According to medical jurisprudence, the blackening will be apparent on the firearm injury when the fire was made from a very close distance. Perusal of the scaled site plan relating to place of occurrence indicates that 'A' is a place where Imran Abbas was present when he was assassinated whereas 'B' is a place where Muhammad Nadeem and Mulazim Hussain appellants were standing when they opened the barrels of their guns upon Imran Abbas. The distance between the place 'A' and 'B' is marked as 5-feet, which also negates the complainant's ocular account with regard to the alleged occurrence. It is also important to note that at the relevant time, the distance between the appellants and complainant was 20 ft. To 231/2 ft. The complainant has also failed to furnish any reasonable justification why Imran Abbas deceased did remain with a distance of 5 ft. Before the appellants, especially, when the appellants, while seeing them, started firing. All these material contradictions in ocular account and medical evidence are fatal to the prosecution case leading us to hold that occurrence did not take place in the mode and manner as alleged by the prosecution and further rendering the prosecution story highly doubtful.
13. The ocular account of this case had been furnished by Rana Liaqat Ali complainant (PW-10), Jamil Ahmed (PW-11), Waseem Abbas (PW-4) and Zaheer Abbas (PW-5). The statements of Waseem Abbas (PW-4) and Zaheer Abbas (PW-5) are irrelevant and needs not to be discussed because of the reason that they were detained inside the room at the time of occurrence and after the occurrence, they were got released by the complainant after unbolting the room, therefore, their testimonies with regard to the witnessing the alleged occurrence is highly doubtful. Even otherwise, they both (PW-4 & PW5) have deposed that their motorcycle was stopped due to finishing of petrol at Kot Sarang and they were moving their motorcycle by jerks. When they (PW-4 & PW-5) reached near the Chowk Kot Sarang, then the appellants caught hold of them, and detained in a room on gun point, and directed them to call their relatives, so that they (appellants) would be able to get their revenge. They (PW-4 & PW-5) heard the voices of firing when they were inside the rooms, and after their release, they (PW-4 & PW-5) saw Imran Abbas deceased in injured condition. Imran Abbas deceased was taken to the Hospital in a car, whereas; they were gone on their motorcycle. It is important to notice that in the early portion of their examination-in-chief, they categorically stated that their motorcycle was on jerks when they were apprehended by the appellants but in the last portion, they stated that they proceeded to the Hospital on their motorcycle. Both the said eyewitnesses (PW-4 & PW-5) have failed to mention that how they proceeded to Hospital on motorcycle with empty fuel tank. It is also important to note that Ghulam Hussain Sub Inspector (PW-15) in his testimony categorically stated that he reached the place of occurrence from the hospital and got recorded the statement of (PW-4 & PW-5) at the place of occurrence meaning thereby both (PW-4 & PW-5) are available at that time at the place of occurrence. In the attending circumstances, the testimonies of both (PW-4 & PW-5) are unbelievable and liable to be discarded for the reasons that they, just to strengthen the prosecution case, have been concocting a false story, and further just to implicate the appellants in this case. Simultaneously, the testimonies of Rana Liaqat Ali complainant (PW-10) and Jameel Ahmed alias Allah Ditta (PW-11) are also full of material contradictions and dishonest improvements. Even otherwise, Jameel Ahmed alias Allah Ditta is not resident of Kot Jagoki Ghummon. He failed to state the reason of his presence at Ice Factory of the complainant at the relevant time. There were so many omissions and contradictions in the evidence of prosecution witnesses affecting the entire fabric of the prosecution case. The prosecution also withheld best evidence available with them in shape of Muhammad Zubair (given upPW) who allegedly accompanied the complainant at the time of occurrence and non-production of the material witnesses cast serious doubt on the prosecution case, because non-production of material witnesses suggests that they would not support the prosecution case.
In opposition, the defence version advanced by the appellants in their statements under Section 342 Cr.P.C. Is that as a matter of fact, the complainant was neither present at the spot nor he had accompanied his son Imran Abbas deceased. None of the accused persons had made any fire either on Imran Abbas or any of the members of the complainant party. Khadim, Alamdar and Mulazim were not present at the scene of occurrence. Muhammad Aslam and Khadim (appellants) have demanded the return of loan from the complainant which was taken ill by him. He then asked his damad, bhatijas and son Imran Abbas to attack on the accused party. Waseem armed with pump action, Imran deceased with pistol and Allah Ditta armed with 12 bore gun, Sarwar armed with 12 bore gun and Ijaz had attacked at the house of Muhammad Aslam appellant on the fateful day at 3:00 P.M. At that time Muhammad Aslam appellant was sitting in his baithak along with Zulfiqar, Liaqat and Manzoor when the complainant party had attacked. Imran deceased entered the baithak and put his pistol on the parietal region of Muhammad Aslam, whereupon; Waseem Abbas (PW-4) fired on me and got aside and the fire hit Imran Abbas. Waseem was drunkened and had fired on Muhammad Aslam which incidentally hit Imran Abbas.
Appellant Muhammad Aslam is father of co-accused Muhammad Nadeem, Mulazim Hussain and Alamdar Hussain. Khadim Hussain accused is elder brother of Muhammad Aslam accused.
Whereas, Zubair (given up-PW), Waseem (PW-4) and Nasir (PW-2) are Bhatijas of complainant Liaqat Ali, Waseem (PW-4) is also his Damad and Jameel PW is his Bhanja. Meaning thereby appellants are members of one family and the complainant and P.Ws. Are also closely related to each other. Comparative analysis of the prosecution evidence and the plea of the appellants in their statements recorded under Section 342 of Cr.P.C lead us to hold that occurrence has not taken place in the mode and manner as alleged by the prosecution. The appellants have also failed to establish the defence plea. Although appellants have tried to establish the plea of alibi in favour of Muhammad Nadeem and Mulazim Hussain appellants by way of producing one Muhammad Siddique (DW-1) but the same cannot be relied upon as it has not been corroborated by any other material evidence.
14. This very fact is also further strengthened from the fact that when Ghulam Hussain Sub Inspector (PW-15) allegedly wrote the application for conducting postmortem examination on 21.11.2007 then why the postmortem examination was conducted on 22.11.2007. The prosecution has failed to advance any sufficient reason in this regard. Therefore, involvement of the appellants in commission of offence is a result of deliberation and consultation.
The time of alleged occurrence and its report to the police had not been satisfactorily explained by the complainant (PW-10), eyewitnesses and Ghulam Hussain Sub Inspector (PW-15) and this fact creates serious doubt regarding the veracity of the case, and it was not safe to base conviction on it. In the above circumstances, it reveals that the FIR was recorded subsequent to the time at which it purported to have been recorded and was the result of deliberation and consultation. The inquest report also does not bear any number. There is nothing on the record that either the complainant or any of the P.Ws. Has forwarded the information to the police with regard to the murder of Imran Abbas deceased. In the attending circumstances, it can be safely gathered from the record that after the occurrence, Rana Liaqat Ali complainant (PW-10) did not rush to the Police Station for lodging report. He remained present in the hospital and the police itself reached there but the lodging of the FIR was delayed intentionally and after having conducted preliminary inquires or consultation, FIR was lodged with delay and the same could not be safely relied upon. In this case, the FIR was recorded after deliberations and in such like cases whole investigation from recording of FIR till finalization becomes doubtful. Edifice built upon such FIR would fall to ground rendering entire case totally unbelievable.
15. As far as the recovery of weapons of offence is concerned, the same is useless to the prosecution only for the simple reason that no crime empty was recovered from the place of occurrence. Only alleged guns were sent to FSL for opinion. In the given state of affairs, the recoveries of guns 12 bore on the pointation of the appellants can not be used against them, as no crime empty was recovered from the place of occurrence. It could not be said with certainty that the recovered weapons were used during the occurrence.
16. Adverting to the motive aspect of the case, it has been noticed that Rana Liaqat Ali complainant (PW-10) set up a motive in his complaint (Exh.PW16/2) that appellant Nadeem was in the habit to teasing girls and Waseem Abbas (PW-4) and Imran Abbas deceased restrained him from doing so. We have noticed that prosecution has miserably been failed to substantiate this motive as Ghulam Hussain S.I. (PW-15) deposed during cross-examination that 'the allegation of teasing girls was correct. I cannot show from my police file if the factum of teasing the girls was correct. It is correct that I had not investigated the said aspect of the case nor had I examined the complainant in that context. I had noted in Zimni No.17 para No.7 dated 31.12.2007 that the occurrence had taken place on account of Lain Dain.' No evidence has been produced except the hearsay assertion which cannot be taken as legal evidence to prove the motive set up in FIR. Although the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of Criminal Jurisprudence that if prosecution sets up a motive and fails to prove it, then, it is the prosecution who is to suffer and not the accused. We are very respectfully relying on the case of Noor Muhammad v. The State and another (2010 SCM R 97) wherein the Hon'ble Supreme Court of Pakistan has emphasized as under: - `It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCM R 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story".
17. The nutshell of above discussion is that the prosecution has failed to establish its case beyond any shadow of doubt. It seems that both the parties are reluctant to bring the real facts before the Court and tried to mislead not only the police but also learned trial Court just to implicate each other. It is often said "that Fouler the crime higher the degree of proof" we have gone through the process of keen examination of the entire material and found compelling reasons as stated above to disgrace with the conclusion reached/recorded by the learned Additional Sessions Judge and also found that the prosecution has miserably failed to prove the guilt of the appellants beyond reasonable doubt. As per dictates of law benefit of every doubt is to be extended in favour of the accused. In the case of "Muhammad Akram v. The State" (2009 SCM R 230), it is held as under:- `Benefit of doubt....Principles----For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts--- -Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right".
18. We, therefore, accept in toto Criminal Appeal No.2204 of 2010, Criminal Appeal No.1917 of 2010 & Criminal Appeal No.2232 of 2010 filed by Muhammad Nadeem, Mulazim Hussain, Muhammad Aslam, Khadim Hussain and Alamdar Hussain, appellants, as a result whereof convictions and sentences recorded by the learned trial court against the appellants vide judgment dated 19.7.2010 are set aside and the appellants are ordered to be acquitted of the charges in case F.I.R.
No.408/2007, offences under sections 302, 324, 365, 148, 149 PPC, registered at Police Station, Sarai Mughal, Tehsil Pattoki. Mulazim Hussain appellant is on bail as his sentence has already been suspended by this Court vide order dated 08.5.2015. His surety stands discharged. Muhammad Nadeem appellant is in jail and he be released forthwith if not required in any other case. Murder Reference No.496 of 2010 is answered in the negative and the sentence of death awarded to Muhammad Nadeem son of Muhammad Aslam is not confirmed.
19. Criminal Revisions No.1054 of 2010 & 1055 of 2010 filed by complainant Rana Liaqat Ali seeking enhancement of sentences awarded to Mulazim Hussain, Muhammad Aslam, Khadim Hussain and Alamdar Hussain is concerned, for the above-stated reasons, the same have no weight, which are accordingly dismissed.