ASIF SAEED KHAN KHOSA, C.J.--- Criminal Miscellaneous Application No. 205-K of 2018 This miscellaneous application is allowed and the synopsis of arguments on behalf of respondents Nos. 2 and 3 submitted through this miscellaneous application is allowed to be brought on the record of the main appeal.
Disposed of.
Criminal Appeal No. 14-K of 2018
2. Ashhab and Asadullah respondents had allegedly murdered one Manzoor Ahme d by firing at him at about 02.00 p.m. on 05.06.201 1 inside the house of the accused party in Baldia Colony in the area of Police Station Baldia, District Hyderabad in the backdrop of a motive according to which an exchange of hot words had taken place between the parties some time prior to the present occurrence. With these allegations respondents Nos. 2 and 3 had been booked in case FIR No.77 registered at the above mentioned Police Station during the ensuing evening and after a regular trial respondents Nos. 2 and 3 were convicted by the trial court for an offence under section 302(b), P.P.C. read with section 34, P.P.C. and respondent No. 2 was sentenced to death and to pay compensation whereas respondent No. 3 was sentenced to imprisonment for life and to pay compensation. The said respondents challenged their convictions and sentences before the High Court through a joint appeal which was partly allowed, respondent No. 3 was acquitted of the charge, respondent No. 2's conviction was converted from one under section 302(b), P.P.C. to that under section 319, P.P.C. and he was sentenced to rigorous imprisonment for five years and to pay Diyat to the heirs of the deceased. Hence, the present appeal by leave of this Court granted on 16.02.2018.
3. As far as the alleged murder of Manzoor Ahmed is concerned the only eye-witne ss of the said murder was none other than Nazeer Ahmed complainant (PW1). According to the complainant there had been repeated exchange of hot words between the deceased and the complainant on the one hand and the accused party on the other and, thus, it was unlikely that the complainant and the deceased would go with respondent No. 2 to his house for repairing a computer . The FIR in respect of the incident in issue had not been lodged at the Police Station giving rise to an inference that the same had been lodged and registered after deliberations and preliminary investigation.
The record of the case shows that some stranger had informed the police about the occurrence and that stranger had never been identified or produced during the trial. The investigating officer of this case appearing before the trial court as PW10 had stated that till 06.30 p.m. on the fateful day the complainant party was not in a position to name any culprit. The said investigating officer had gone on to state that the complainant had maintained before him that he would lodge an FIR after consulting his relatives who were coming from the village. In view of the allegations levelled in this case if the murder in issue were a deliberate and calculated murder then the complainant would not have been spared by the accused party . The story set up by the prosecution has been found by us to be unbelievable because according to the said story respondent No. 3 had held the deceased at a time when respondent No. 2 was firing at the deceased. It goes without saying that responden t No. 3 was quite likely to be hit by the fires of respondent No. 2 if the allegation against him regarding taking the deceased in his clasp were to be accepted as correct. No independent proof of the alleged motive had been produced during the trial and even otherwise the asserted motive was not a serious one. Nothing had been recovered from the custody of respondents Nos. 2 A and 3 during the investigation. The investigating agency had declared both respondents Nos.
2 and 3 to be innocent.
4. As regards the allegation regarding dragging of the deadbody from the house to the street outside the same has also been found by us to be equally improbable. It is unrealistic to believe that within the view of the eye-witnesses and the other residents of the locality respondents Nos. 2 and 3 had dragged the deadbody of the deceased from an upper storey of the relevant house to the street before decamping from the B place of occurrence. The eye- witnesses of the said dragging were Muhammad Bux (PW2) and Razaq Dino (PW3) who were both chance witnesses besides being very closely related to the deceased. The said witnesses had been brought by the complainant to the place of occurrence after the murder had already been committed. It is strange that nobody else of the vicinity had seen respondents Nos. 2 and 3 dragging the deadbody down to the street.
5. We note that even the High Court itself had found the story of the prosecution to be unbelievable besides being unacceptable and resultantly the High Court had placed a heavy reliance upon a judicial confession allegedly made by respondent No. 2 before a Magistrate. If the said judicial confession were to be accepted as correct, which the High Court had accepted and had acted upon the same, then the case in hand could not be treated as a case attracting the offence of Qatl-i-khata defin ed in section 318, P.P.C. The High Court's conclusion shows that the case was accepted by the High Court to be a case of an accident. According to the provisions of section 80, P.P.C. an act done by an accident does not constitute any of fence.
6. For what has been discussed above no occasion has been found by us for interference with the impugned judgment passed by the High Court, particularly when respondent No. 2 has not challenged his conviction and sentence recorded by the High Court for an offence under section 318, P.P.C. read with section 319, P.P.C. In the absence of any perversity in the impugned judgment passed by the High Court no occasion has been found by us for interference with the same. This appeal is, therefore, dismissed. The bail bonds and sureties of respondents Nos. 2 and 3, if any , shall stand discharged.