ASIF SAEED KHAN KHOSA, J.--- Criminal Miscellaneous Application No,875 of 2012 For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Appeal No,281 of 2012 is condoned. Disposed of.
Criminal Appeal No,281 of 2012
2. Khuda-e-Dad alias Pehlwan appellant had allegedly murdered one Miran Jan and had injured another namely Muhammad Khan at about 06.30 p.m. on 01.06.2006 in the area of Police Station Punjai, District Quetta and for commission of the, said offences he was booked in case FIR No, 6 registered at the said Police Station during the same evening. After a regular trial the appellant was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to death and to pay fine besides having been convicted and sentenced for offences under sections 324 and 337-F(i), P.P.C. The appellant challenged his convictions and sentences before the High Court through an appeal but his appeal was dismissed by the High Court and his convictions and sentences were maintained. Hence, the present appeal by leave of this Court granted on 18.05.2012.
3. Leave to appeal had been granted in this case in order to reappraise the evidence but at the outset the learned counsel for the appellant has submitted that he presses this appeal only to the extent of the charge against the appellant regarding murder of Miran Jan whereas the appellant's convictions and sentences recorded and upheld for the offences under sections 324 and 337-F(i), P.P.C. are not assailed by him because the appellant has already undergone the, sentences of imprisonment passed against him vis-a-vis the said offences. The learned counsel for the State has, however, maintained that all the convictions and sentences of the appellant had correctly been recorded and upheld by the courts below and, thus, he opposes this appeal.
4. As far as the alleged commission of murder of Miran Jan by the present appellant we have observed that in the FIR as well as in the statements of both the eye-witnesses namely Amir Muhammad complainant (PW1) and Muhammad Khan (PW2) made before the trial court no motive whatsoever had been asserted, it was admitted that Miran Jan deceased had himself gone to see the appellant at a place whereat he was already peacefully present and even the injured victim namely Muhammad Khan (PW2) had gone to the place of presence of the appellant on his own. It is not disputed that the circumstances in which Miran Jan deceased was shot at had not been seen either by Amir Muhammad complainant (PW1) or Muhammad Khan (PW2) and both of them had been attracted to the place of occurrence after hearing reports of firing. It is also not disputed that both the said eye-witnesses had not seen the appellant firing at Miran Jan deceased. Muhammad Khan (PW2) had stated before the police in his statement recorded under section 161, Cr.P.C. that he had heard the reports of firing at a time when he was available in his own house. No motive had been set up by the prosecution at any stage of this case. The alleged recovery of a firearm from the appellant's custody during the investigation was legally inconsequential because admittedly the crime-empties secured from the place of occurrence had been sent to the Forensic Science Laboratory after arrest of the appellant and after recovery of a firearm from his possession. In these circumstances we have found the learned counsel for the appellant to be quite justified in maintaining that the prosecution had failed to prove its case against the appellant beyond reasonable doubt as far as the allegation regarding murder of Miran Jan was concerned.
5. As already noted above, the learned counsel for the appellant has not pressed this appeal to the extent of the appellant's convictions and sentences for the offences under sections 324 and 337- F(i), P.P.C. because the appellant has already undergone the sentences of imprisonment passed against him on the said counts of the charge.
6. For what has been discussed above this appeal is partly allowed, the conviction and sentence of the appellant on the charge under section 302(b), P.P.C. are set aside and he is acquitted of the said charge. This appeal is, however, dismissed to the extent of the appellant's convictions and sentences for the offences under sections 324 and 337-F(i), P.P.C. this appeal is disposed of in these terms.