AALIA NEELUM, J.---Through instant Criminal Appeal No.947 of 2009, the appellants-Muhammad Hussain son of Shamas Din, Muhammad Ashraf son of Mohabat Ali and Muhammad Sharif son of Muhammad Hassan, all Bhatti by caste, residents of Kot Hukam Singh Tehsil and District Pakpattan Sharif, have assailed their conviction and sentence recorded by the learned Addl. Sessions Judge, Pakpattan vide judgment dated 29.05.2009 in private complaint filed under sections 302, 337-H(2), 148 and 149, P.P.C. Police Station Malka Hans, District Pakpattan Sharif titled "Shah Rasool v. Muhammad Hussain etc." along with State case bearing FIR No.187/2008 dated 19.07.2008 under sections 302, 148 and 149, P.P.C. registered at Police Station Malka Hans, District Pakpattan Sharif, whereby the learned trial court convicted the appellants under Section 302(b), P.P.C. and sentenced them to Imprisonment for life as Tazir each with the direction to pay Rs.1,00,000/- each as compensation to the legal heirs of the deceased and in case of default in payment thereof, each would further undergo six months S.I. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants.
2. It is pertinent to mention here that the complainant also filed Crl. Rev. No.1088/2009 qua enhancement of sentence awarded to the appellants. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.
3. The prosecution story as alleged in the private complaint (Ex.PD) of Shah Rasool (PW-2)/complainant is that on 19.07.2008, the complainant (PW-2) along with Abdul Khaliq (PW-3), Shehnaz Bibi (PW-4) and Khursheedan Bibi (given up PW) was going to Chak No.93/D from Kot Hukam Singh for earning their livelihood, whereas his brother Master Ghulam Rasool (the deceased) while boarding on bicycle was going to Adda Noor Pur to pay electricity bill and they were at a distance of one acre from Ghulam Rasool (the deceased). At about 08/09:00 a.m., when Ghulam Rasool (the deceased) reached infront of land of Muhammad Ashraf situated in the area of Kot Hukam Singh, all of a sudden Muhammad Hussain (the appellant No.1), Muhammad Ashraf (the appellant No.2), Muhammad Sharif (the appellant No.3), Muhammad Akram (co-accused since acquitted) armed with hatchets, whereas Liaqat Ali (co-accused since acquitted) armed with pistol, while raising lalkaras emerged from Jowar crop situated on their eastern side. The accused persons forcibly removed Ghulam Rasool (the deceased) from bicycle and started giving hatchet blows to him. On hearing hue and cry of Ghulam Rasool (the deceased), the complainant party also reached at the spot. First of all, Muhammad Sharif (the appellant No.3) gave 4/5 hatchet blows hitting on left calf and left knee of Ghulam Rasool (the deceased). Thereafter, Muhammad Ashraf (the appellant No.2) gave hatchet blows hitting Ghulam Rasool (the deceased) on the thumb of his left hand, index finger and left wrist. Then Muhammad Hussain (the appellant No.1) gave hatchet blows to Ghulam Rasool (the deceased) on his left elbow, waist and hip. Thereafter Muhammad Akram (co-accused since acquitted) caused hatchet injuries on left calf, right thigh, right knee and right elbow of Ghulam Rasool (the deceased). The complainant party tried to intervene and rescue Ghulam Rasool (the deceased), whereupon Liaqat Ali (co-accused since acquitted) started aerial firing and accused persons also raised lalkara that if anybody came near them, he would also be killed. The accused persons murdered his (PW-2)-the complainant's brother by causing injuries in their presence.
4. The motive behind the occurrence was that Muhammad Hussain (the appellant No.1) had suspicion of illicit relations of Ghulam Rasool (the deceased) with his wife Mst. Naziran Bibi. Due to this grudge, the accused persons committed murder of Ghulam Rasool (the deceased) brother of the complainant.
5. After the occurrence, the complainant (PW-2) immediately reported the matter to police and got recorded his statement (Ex.CW-5/A) and after endorsing police karvai, Niaz Ahmad S.I. (CW-5) transmitted the same to Police Station through Muhammad Aslam 263/C (not cited as witness) whereupon formal FIR (Ex.CW-7/A) was chalked out by Muhammad Aslam 264/H.C. (C.W-7). Thereafter, the investigation was entrusted to Niaz Ahmed S.I. (CW5), who being the investigating officer of the case inspected the place of occurrence, prepared the injury statement (Ex.PB), inquest report (Ex.PC) and dispatched the dead body of the deceased along with police papers under the escort of Muhammad Riaz 37/C (CW-4) for postmortem examination. Thereafter he (CW-5) collected blood-stained earth from the place of occurrence and took into possession through recovery memo (Ex.PE). He (CW-5) also secured the bicycle P-1 and blood stained shoe P-2 belonging to the deceased through separate recovery memos (Ex.PF and Ex.PG). The investigating officer (CW-5) also prepared un-scaled site plan (Ex.CW-5/B) and also recorded statements of PWs under section 161 of Cr.P.C. After postmortem examination, the police official handed over the bloodstained clothes of the deceased i.e. Shirt P-3, Shalwar P- 4, Vest P-5 along with postmortem report to the Investigating Officer (CW-5), who took into possession vide recovery memo (Ex.PH). On 23.07.2008, the Investigating Officer (CW-5) summoned Ghulam Mustafa Chughtai draftsman (CW-3), who prepared the scaled site plan of the place of occurrence (Ex.CW-3/A, Ex.CW-3/B and Ex.CW-3/C) in the scale of one inch equal to 24 feet. On 30.07.2008, he (CW-5) arrested Muhammad Ashraf (the appellant No.2) and Muhammad Sharif (the appellant No.3) and obtained their physical remand. Thereafter, he (C.W-5) was transferred. Muhammad Younas S.I. (C.W-8) is also the investigating officer of the case, who stated that on 11.08.2008, accused Muhammad Hussain (the appellant No.1) during investigation made disclosure and got recovered weapon of offence i.e. hatchet (P-6), which was secured into possession by the investigating officer (CW-8) through recovery memo (Ex . C'W-1 /A) . The investigating officer (CW-8) also prepared site plan of place of recovery (Ex.CW-8/A). On the same day, accused Muhammad Ashraf (the appellant No.2) during investigation also made disclosure and got recovered weapon of offence i.e. hatchet (P- 7), which was secured into possession by the investigating officer (CW-8) through recovery memo (Ex . CW- 1/B) . The investigating officer (CW-8) also prepared site plan of place of recovery (Ex.CW-8/B). On the same day, accused Muhammad Sharif (the appellant No.3) during investigation also made disclosure and got recovered weapon of offence i.e. hatchet (P-8), which was secured into possession by the investigating officer (CW-8) through recovery memo (Ex.CW-1/C). The investigating officer (CW-8) also prepared site plan of place of recovery (Ex.CW-8/C).
6. Having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. and sent the same to the Court of Session enrooted through the learned, Illaqa Magistrate as provided under Section 190(2), Cr.P.C. Being dis-satisfied with the result of investigation, as the S.H.O. obtained his (PW-2) thumb impression on blank papers and dishonestly recorded statement of complainant (PW-2) and did not' mention Liaqat Ali (co-accused since acquitted) in aforesaid case, the complainant was constrained to file private complaint (Ex.PD). The learned Illaqa Magistrate sent the same to the worthy Sessions Judge, Pakpattan Sharif for its entrustment to the court of competent jurisdiction. The learned trial court after recording 'the cursory evidence of the .complainant and having perused the record, summoned all the accused persons to face the trial.
7. After the appearance of accused persons, they were formally charge sheeted by the learned trial court in terms of order dated 04.02.2009 to which they pleaded not guilty and claimed trial. The prosecution in order to substantiate its case produced as many as five (05) prosecution witnesses during the course of trial in private complaint. Ocular account in this case has come out from the statements of Shah Rasool (PW-2)/-the complainant, Abdul Khaliq (PW-3) and Shehnaz Bibi (PW-4)-the eye-witnesses, whereas, Dr. Farooq Ahmed, S.M.O, RHC Malkahans, District Pakpattan (PW1) had conducted postmortem examination on the dead body of the deceased and found the following injuries on his person:- Injuries 1) An incised wound 14 x 6 cm x one exposed on the outer side of lower part of left leg.
2) Two parallel incised wounds each 4 x 2 cm x bone exposed on front of left leg.
3) An incised wound 4 x 2 cm bone exposed on front of upper part of left leg.
4) An incised wound 7 x 3 cm which cut the left patella.
5) An incised wound 3 x 2 cm on lower and outer side of left thigh.
6) An incised wound 10 x 3 cm x muscle deep on outer side of right calf.
7) An incised wound 4 x 2 cm x Tibia fracture of right leg.
8) Two incised wounds 3 x 2 cm each x bone exposed on lower part of right shin.
9) An incised wound 4 x 3 cm on inner side of left cubital fossa, which cut the brachial artery and medial cubital vain completely. There were three wounds on left wrist, thumb and index finger. Respective bones were also cut.
Opinion.
After conducting the postmortem examination, the doctor has opined that cause of death was hemorrhage and shock due to injuries Nos.1 to 9 collectively, which were sufficient to cause death in ordinary course of nature.
Probable time between injury and death was within half hour and between death and postmortem was within 12 hours.
Rest of the prosecution witnesses are formal in nature.
8. On 08.04 2009, Shah Rasool-the complainant had given up Khursheedan Bibi and Munir Ahmed PWs being unnecessary and on 07.05.2009, the complainant (PW-2) closed his evidence. However, on 22.05.2009, learned Assistant District Public Prosecutor gave up CW-Allah Ditta as being un-necessary and closed the evidence of prosecution after tendering the reports of Chemical Examiner and Serologist, Lahore (Ex.PJ, Ex.PK, Ex.PL, Ex.PM, Ex.PN, Ex.PO, Ex.PP and Ex.PQ).
9. The appellants were also examined under Section 342 Cr.P.C, wherein they neither opted to appear as their own witnesses in terms of Section 340(2), Cr.P.C. nor, opted to produce defence evidence. While replying to a particular question that why the PWs had deposed against them, Muhammad Hussain-the appellant No.1 made the following deposition:- "I have been falsely involved in this case. Some unknown accused persons committed the murder of Ghulam Rasool deceased. I know nothing about the occurrence. The complainant and the PWs have deposed against me falsely due to their close relations inter-se and with the deceased."
Whereas, Muhammad Ashraf the appellant No.2 made the following deposition:- "I have been falsely involved in this case. Some unknown accused persons committed the murder of Ghulam Rasool deceased. I know nothing about the occurrence. The complainant and the PWs have deposed against me falsely due to their close relationship inter-se and with the deceased."
And Muhammad Sharif-the appellant No.3 made the following deposition:-- "I have been falsely involved in this case. Some unknown accused persons committed the murder of Ghulam Rasool deceased. I know nothing about the occurrence. The complainant and the PWs have deposed against me falsely due to their close relationship inter-se and with the deceased."
10. The learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt resulting into conviction of the appellants in the afore stated terms.
11. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
12. The complainant-Shah Rasool (PW-2) got recorded his statement (Exh.CW-5/A) to Niaz Ahmed, S.I. (CW-5) about the occurrence at 10:00 a.m. through Fard Bayyan (Exh.CW-5/A) at Mauza ICot Hukam Singh on 19.07.2008 and police registered the case FIR No.187 of 2008, under sections 302, 148 and 149, P.P.C. at the Police Station Malka Hans, District Pakpattan Sharif at 10:30 a.m. Though the incident had taken place at 08/09:00 a.m. on 19.07.2008, whereas the police station was 6 kilometers away from the place of occurrence).
Thereafter, Niaz Ahmed, S.I. (CW-5) immediately proceeded to the place of occurrence where dead body of the deceased-Ghulam Rasool was lying. First of all this court has to examine whether the FIR in this case was ante- dated. At the cost of repetition, as mentioned above incident had taken place at 08/09:00 a.m. on 19.07.2008 and the incident was reported to the police at 10:00 a.m. on 19.07.2008 and FIR was lodged on at 10:30 a.m. by the complainant (PW-2). The first circumstance which raises doubt about lodging of the FIR by the complainant (PW-2) at the time claimed by the prosecution is that in the inquest report (Exh.PC), which was prepared at after 10:00 a.m. on 19.07.2008, Niaz Ahmed, S.I. (CW-5) has mentioned the names of the persons who identified the dead body of Ghulam Rasool-deceased as Ahmad Din and Munir Ahmad. This out rightly suggests that the complainant (PW-2) was not present at the time, inquest report in this case was prepared.
These circumstances to my mind go to suggest that the FIR was ante time. It also gets support from the testimony of the Doctor, who conducted the postmortem examination of the dead body of the deceased-Ghulam Rasool as copy of the FIR was not sent to the Doctor with other documents sent by the police. Doctor Farooq Ahmed (PW-1) deposed during examination-in-chief that, "I endorsed injury statement of deceased Ghulam Rasool as Ex.PB and inquest report Ex. PC"
It reveals that copy of FIR was not sent to the Doctor along with the dead body of the deceased-Ghulam Rasool.
It is an admitted case that rigor mortis were present on the dead body of the deceased which also indicated that the time elapsed between the death and postmortem examination indicates that death occurred between 12 hours. The occurrence took place during Summer time in July. Rigor Mortis therefore, need not have taken as long as 6 to 8 hours to set in. It will however, remain all over the body 12 hours after death. It was found all over the body at the time of the post mortem examination. The death could therefore be between 4.30 a.m.
Considering all these facts, I have no hesitation in coming to the conclusion that the prosecution has not been able to prove on record that the incident was reported at the time at which, it was claimed to have been recorded. The alleged occurrence took place at about 8/9 a.m. on 19.07.2008 wherein within the view of the prosecution witnesses Ghulam Rasool-the deceased succumbed to the injuries at the spot, whereas it has been mentioned in the postmortem report that duration between injury and death is half an hour and the complainant reported the occurrence to the police at 10.00 a.m. through verbal complaint at the place of occurrence and the same goes against postmortem report which created doubt regarding the presence of witnesses at the relevant time at the place of occurrence. Moreover, the duration given by the Doctor between the death and post-mortem was 12 hours which would mean that the occurrence could have taken place at any time and not at the time which the complainant had claimed. The Doctor has also mentioned in the post-mortem report (Ex.PA) that the duration between injury and death is half an hour whereas the eye-witnesses stated that Ghulam Rasool-the deceased succumbed at spot which shows that occurrence had neither taken place at the time shown in the FIR nor in the manner set up by the prosecution.
13. One of the external check that whether the FIR was lodged on the time as alleged, is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. In the inquest report (Ex.CW- 4/E) it was mentioned as under:- {{URDU TEXT}} The prosecution has not given any explanation as to why copy of the FIR was not sent to the Doctor along with other documents at the time of the postmortem examination of the dead body of Ghulam Rasool. This is strong circumstance, which reveals that till the time of the postmortem examination FIR was not in existence. The absence of details in the inquest report of the FIR may be indicative that the FIR was not registered at the time mentioned therein and the FIR was recorded later on after due deliberations and consultation. This court has noticed that in the inquest report (Ex.CW14/E), in item No.11, it was mentioned "Blood Frozen". This shows that inquest report of the dead body of Ghulam Rasool was not prepared at the time it is alleged to have been recorded: This also shows that death had occurred much earlier to the time mentioned by the prosecution. This also created doubt about the time of occurrence. This Court has also noticed that Dr. Farooq Ahmed (PW-1) is the Doctor who conducted the postmortem on the dead body of Ghulam Rasool. During examination-in-chief he (PW-1) deposed that he conducted autopsy on 19.07.2008. Accordingly, Dr. Farooq Ahmed (PW-1) has categorically stated that "time between injury and death was within 1/2 hour, whereas, between death and postmortem was within 12 hours". Coming to the deposition of Dr. Farooq Ahmed (PW-1) who deposed during cross-examination that:- "If the deceased had reached in a well equipped hospital within 30 minutes, he might have survived after getting emergency treatment."
Whereas, Shah Rasool (PW-2)- the complainant, brother of the deceased, deposed during examination-in-chief that:-- "The accused persons murdered my brother Ghulam Rasool deceased, by causing injuries in our view."
Similarly, Shehnaz Bibi (PW-4), sister of the deceased, deposed during examination-in-chief that:- "The accused persons committed the murder of my brother Ghulam Rasool deceased, in our view."
At the cost of repetition, I may mention here that as per prosecution version in Fard Bayyan (Ex.CW-5/A), FIR (Ex.DA) and private complaint (Ex.PD) by the complainant (PW-2) is that within their view Ghulam Rasool was murdered. The testimony of both the related witnesses i.e. Shah Rasool (PW-2)- the complainant and Shehnaz Bibi (PW-4) being not in accord with the medical evidence itself is sufficient to disbelieve their testimony so far as occurrence is concerned. This court has further noticed that Shah Rasool (PW-2)-the complainant deposed during cross-examination that:- "I filed this private complaint on 30.10.2008 and I did not make any statement on that day. I had informed the SHO about the occurrence at 9/10 A.M. on 19.07.2008, when he was on patrol duty, at Noor Pur Pul. I had not informed the local police at Police Station Malkhanas, regarding the occurrence."
Abdul Khaliq (PW-3) deposed during cross-examination that:- "Local police of Police Station Malkahans reached the place of occurrence at 9 A.M. We had not informed the local police About the occurrence, but they reached at the spot after getting information from someone else. Local police reached the spot after one hour of the alleged occurrence."
Shehnaz Bibi (PW-4) deposed during cross-examination that:- "Local police reached the spot at 10:00 A.M. My brother Shah Rasool informed the local police regarding the occurrence at Noor Pul. Police Officer made search on the body of Ghulam Rasool deceased."
Niaz Ahmed S.I. (CW-5)-the investigating officer, deposed during cross-examination that:- "On 19.7.2008, after having come to know about the occurrence I went to the spot. It is correct that information about this occurrence was not furnished by the complainant party when I was present at Pul Noor. The complainant did not meet me at the bridge of Noor Pur. About 4 months prior to the occurrence, I was posted in P.S. Malkahans. I reached the spot at 10.A.M. The place of occurrence is at a distance of 4/5 kilometers from Pul Noor Pur. It takes about 8 to 10 minutes in reaching the place of occurrence from Noor Pur on a vehicle. When I reached at the spot, Shah Rasool Abdul Khaliq, Shehnaz Bibi and Khursheedan Bibi were present there and none else was present there."
Besides, this court has also noted that Shah Rasool (PW-2)-the complainant has deposed during examination- in-chief that:- "On 19.7.2008, I along with Abdul Khaliq, Shehnaz Bibi and Khursheedan Bibi were going to Chak No.93/D from Kot Hukam Singh, for earning our livelihood. My brother Ghulam Rasool deceased was going to Noor Pur on a bicycle for paying the bill of electricity. The accused persons forcibly removed Ghulam Rasool deceased from the bicycle and started giving blows to him."
Shah Rasool (PW-2) the complainant also deposed during cross-examination that:- "We left our houses on 19.7.2008 at about 8.15 A.M. I cannot tell the amount of electricity bill which had to be deposited by the deceased. The electricity bill was kept by the deceased in his side pocket.----:- The I.O. did not search the clothes and pockets of the deceased. I was present at DHQ Hospital, when the police returned the clothes of the deceased and other articles. The doctor who examined the deceased returned Rs.500/- and electricity bill, recovered from the clothes of deceased. The above said articles were returned to Munir Ahmed my maternal nephew."
Abdul Khaliq (PW-3) deposed during cross-examination that:- "I had narrated in my cursory statement that accused forcibly removed Ghulam deceased.
(Confronted with Ex.DC, where it is not recorded). I cannot tell the amount of electricity bill. It is correct that Ghulam Rasool deceased took the money to pay the bill with him, but I cannot tell in which pocket he possessed the amount. It is correct that I.O. searched the deceased Ghulam Rasool. I do not know whether I.O. collected the amount and electricity bill while searching the dead body of Ghulam Rasool deceased."
Shehnaz Bibi (PW-4) deposed during cross-examination that:- "Prior to this occurrence, we had been going to 93/D for labour. One day prior to the occurrence, the place and person, where I worked for earning livelihood, I cannot tell the name of that person. The electricity bill was kept by the deceased in left side pocket. I cannot tell the exact amount of electricity bill. Ghulam Rasool deceased took the amount of electricity bill for payment from his house. He took the amount from me. I cannot tell that after getting the said amount, in which pocket he kept. All the accused persons removed the deceased from his cycle, collectively."
Whereas, Niaz Ahmed S.I. (CW-5)-the investigating officer, deposed during cross-examination that: "The electricity bill or cash was not recovered from the pockets of the Ghulam Rasool deceased."
Muhammad Younas, S.I. (CW-8)- the investigating officer, deposed during cross-examination that:- "It is correct that regarding the electricity bill and amount for its payment, no interrogation was made by me during investigation. I did not interrogate that the complainant party was going to 93/1), for earning livelihood, in whose land."
These contradictions, variations and conflict between the ocular testimony of the eye-witnesses and the medical evidence have not been explained by the prosecution. This further improbablises the version of PWs Shah Rasool (PW-2)- the complainant. Abdul Khaliq (PW-3) and Shehnaz Bibi (PW-4) with the entire occurrence having taken place in their presence. No reliance can be placed on such testimony to establish the presence of Shah Rasool (PW-2)-the complainant, Abdul Khaliq (PW-3) and Shehnaz Bibi (PW-4) at the place of occurrence, which would form the basis for conviction.
14. =As far as the recovery of blood stained hatchets (P-6, P-7 and P-8) which had allegedly been recovered on the disclosure of the appellants-Muhammad Hussain, Muhammad Ashraf and Muhammad Sharif respectively on 11.08.2008 and reports of Serologist (Exh.PK, Exh.PL and Exh.PM) in respect thereof is concerned, accordingly the "hatchets" were stained with human blood, however, at the risk of repetition, I may mention here that the bloodstained "hatchets " were recovered on 11.08.2008 i.e. after 23 days of the alleged occurrence. Hence, the report of the Serologist in this regard, cannot be termed as reliable as related material substantiating the prosecution case in any G manner whatsoever. Even otherwise, it does not appeal to reason that the accused persons might have kept "hatchets " with them in their houses intact in order to produce it before the Investigating Officer on their arrest. The accused persons cannot be expected to, keep the bloodstained hatchets (P-6, P-7 and P-8) in their houses for along period, when they could have easily disposed of the same.
Reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan in the case of "Bashir Ahmed alias Mannu v. The State" 1996 SCMR 308 wherein the learned Apex. Court had disbelieved the prosecution evidence on this count. There are material contradictions among the witnesses. Bashir Ahmed (CW-1) deposed during cross-examination that;- "The doors of the house of the accused persons were closed. The doors were opened by Mohabat Ali, the brother of Muhammad Hussain accused. The rooms of the houses were locked. First of all we went to the house of Muhammad Hussain accused. Muhammad Hussain accused had entered the room of recovery at that time. We the PWs and the police kept on standing at the door of room of recovery. The places of recoveries are surrounded by residential houses."
Whereas, Muhammad Younas, S.I. (CW-8) deposed during cross-examination that:- "The outer doors of the houses of the accused were closed but were not locked. The accused persons themselves had opened the door. The doors of the rooms of the recoveries were also not locked. The police constable who was catching hold of the chain of the handcuffs of the accused and the PWs had entered the room of the recoveries."
Thus, in my opinion, above deposition of Bashir Ahmed (CW-1) and Muhammad Younas, S.I. (CW-8) also makes recovery proceeding doubtful.
15. The motive set up by the prosecution in the private complaint (Exh.PD) and FIR (Exh.DA) and deposition about it by the complainant-Shah Rasool (PW-2) have been found by this court to have remained un-proved.
The prosecution case in this regard was vague and can hardly inspire confidence. Abdul Khaliq (PW-3) denied suggestion during cross-examination that:- "It is incorrect to suggest that motive is false and just to strengthen the case, it was dishonestly and deliberately narrated. It is incorrect to suggest that I had narrated during investigation that the motive was narrated on the saying of the people of the vicinity, otherwise the actual dispute between Ghulam Rasool deceased and accused persons was of money matter."
Whereas, Muhammad Younas, S.I. (CW-8) deposed during cross-examination that:- "It is correct that PW Abdul Khaliq stated that they had mentioned motive of the occurrence at the saying of the persons of the locality, but in fact there was a dispute of money matter between accused persons and Ghulam Rasool deceased. It is correct that Abdul Khaliq PW did not support the version of motive of the occurrence during investigation. The complainant party also did not produce any evidence regarding the dispute of money matter, between the accused persons and the deceased during investigation."
In the circumstances, this court cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.
16. The upshot of the above discussion is that the prosecution has badly failed to bring home charge against the appellant beyond any reasonable doubt, therefore, in the interest of safe administration of criminal justice, I Criminal Appeal No.947 of 2009 filed by Muhammad Hussain, Muhammad Ashraf and Muhammad Sharif, the appellants is accepted in toto. The conviction and sentence awarded by the learned Additional Sessions Judge, Pakpattan vide judgment dated 29.05.2009 is set aside and the appellants, Muhammad Hussain son of Shamas Din, Muhammad Ashraf son of Mohabat Ali and Muhammad Sharif son of Muhammad Hassan are acquitted of the charge in private complaint filed under sections 302, 337-H(2), 148 and 149, P.P.C. Police Station Malka Hans, District Pakpattan Sharif titled "Shah Rasool v. Muhammad Hussain etc." along with State case bearing FIR No.187/2008 dated 19.07.2008 under sections 302, 148 and 149, P.P.C. registered at Police Station Malka Hans, District Pakpattan Sharif. The appellants are present on bail, therefore, their surety bonds stand discharged.
17. So far as Criminal Revision No.1088 of 2009 "Shah Rasool v. Muhammad Hussain, etc." seeking enhancement of sentence of respondents Nos.1, 2 and 3 is concerned, for the above stated terms, the same has no weight, which is accordingly dismissed.