2012 P Cr. L J 1674
[Balochistan]
Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ
ARSHAD MASIH ---Appellant
Versus
THE STATE ---Respondent
Criminal J ail Appeal No.41 of 2010, decided on 28th June, 2012.
Penal Code (XLV of 1860) ---
----Ss. 302(b), 315 & 316 --- Qatl-e-amd, qatl -e-shibh -i-amd---Appreciation of evidence ---
Conversion of conviction from S.302(b), P.P.C. to S.316, P.P.C. ---Deceased given a beating
by accused (appellant) and co -accused persons during a Church congregation ---Accused hit
the deceased with a flowerpot in the heat of the passion ---Said fact was corroborated by
prosecution witnesses ---Quarrel or attack upon the deceased in prese nce of a big
gathering/congregation showed no prior intention on part of the accused and co -accused to
kill the deceased ---Findings of Trial Court qua intention of accused were not challenged by
the complainant or prosecution ---Effect ---Accused was require d to be sentenced under S.316,
P.P.C. ---Conviction and sentence of accused under S.302(b), P.P.C., was set aside and he was
convicted and sentenced under S.316, P.P.C. ---Appeal was disposed of accordingly.
Ali Hassan Bugti for Appellant.
Abdul Sattar Khan Durrani, Additional Prosecutor -General for the State.
Date of hearing: 19th June, 2012.
JUDGMENT
ABDUL QADIR MENGAL, J. ---This criminal jail appeal is arising out from the judgment
dated 5th November, 2010, passed by the learned Sessions Judge, Khuzdar, in case F.I.R.
No.54 of 2010, for offences under sections 302, 34, P.P.C., whereby the appellant was
convicted and sentenced under section 302(b), P.P.C. for life imprisonment and also to pay
fine of Rs.50,000 (fifty thousand), in default of fine, to further suffer SI for 6 (six) months.
The benefit of section 382 -B, Cr.P.C. has been extended in favour of the appellant/convict.
2. The facts of the case according to the F.I.R. are that on 4th April, 2010, at about 5 -00
p.m., Chaudhri Anwar Masih l odged report with Police Station Khuzdar, stating therein that
his son Samoil Anwar, who had gone to the Church for prayer, where Arshad Masih,
Ghulam Mustafa son of Sadiq Masih and Ishaq Masih alias Tarra badly gave him
beatings , whereafter, inflicted him a flower pot ( ), due to that his condition became
worst, as such, he was shifted to hospital for treatmen t. He requested for taking necessary
action against the culprits.
3. The case was registered under section 337 -ADF read with section 34, P.P.C.,
however, later on, the condition of the Samoil became worst and in result of the head
injury he die d at hospital, as such, the section 337 -ADF/34, P.P.C. was converted into
sections 302/34, P.P.C. and on completion of the investigation, matter was challaned before
the court of Sessions Judge, Khuzdar for trial. On conclusion of the trial, the impugned
judgment.
4. Mr. Ali Hassan Bugti, Advocate is present for appellant, while Mr. Abdul Sattar Khan
Durrani Additional Prosecutor -General, present for the State.
5. Learned counsel for the appellant mainly contended that the appellant is innocent and
he falsely has been implicated in the present matter. Learned counsel further argued that the
case record shows that at the time of prayer most of the members of the congregation were
drunk, as such, there, at sudden some irresponsible youth created disturba nce, whereupon, a
scuffle was started, as such, there is a no specific evidence that present appellant hit, flower
pot ( ) to the deceased, no r there is any intention behind the commission of the offence,
therefore, the conviction and sentence passed by the learned Sessions Judge, Khuzdar, under
section 302(b), P.P.C. is not tenable and the appellant is liable to be acquitted of the charge.
6. Mr. Abdul Sattar Khan Durrani, learned Additional Prosecutor -General, opposed the
contention of the learned counsel for the appellant, stating that learned Sessions Judge rightly
has evaluated the evidence and passed a sound and legal judgment, which requ ires
interference. There is a no merit in the present appeal, as such, the same is liable to be
dismissed.
7. After hearing the both sides, we have perused the record of the case. No doubt,
circumstances of the case shows that appellant along with acquit ted accused Ghulam Mustafa
and absconding accused Ishaq Masih alias Tarra were present in the Church for offering
prayers, where the appellant and deceased entered into a quarrel, which resulted into the
present incident.
8. The facts show that there was no prior intention from the side of the appellant
or the, acquitted accused to kill the deceased Samoil, because, if the appellant and
acquitted accused would have any such intention then they naturally would not quar rel
or attack upon the deceased in presence of a big gathering or congregation, as this fact is
evident from the judgment of the trial Court, which reads as follow: --
"There is nothing in the evidence of P.Ws. that accused with intention to commit the
murder of the deceased had attacked him. Therefore, the offence committed by the accused
Arshad Masih falls under section 302(b), P.P.C. So accused Arshad Masih son of Sadiq
Masih, caste Christian is convicted under section 302(b)/34, P.P.C."
9. So being we see that in the heat of passion, appellant took a flower pot ( ) and hit
the same to the deceased, due to which he later on succumbed to th e injury and died. Though
the P.Ws. in their court statements have made improvements by stating that the accused came
with lathies and started beating to the deceased, however, the whole prosecution case and
papers show that the P.Ws. prior to the court st atements, nowhere have mentioned that
accused had come with lathies and inflicted injuries to the deceased. The evidence of the
P.Ws. Anwar Masih, Tariq Masih and Sadiq Masih are corroboratory and consonance on this
fact that during the fighting present ap pellant Arshad Masih at sudden took a flower pot and
hit the same to deceased, due to that he lost his conscious and later on he died and this fact
also has been rightly discussed or evaluate by the learned Sessions Judge, Khuzdar in the
impugned judgment. But despite of above fact, amazingly he then convicted and sentenced
the appellant under section 302(b), P.P.C. for Qatl -e-amd, which is contrary to law and facts
of the case. As such, we are of the view that since the finding of trial court qua the inten tion
of appellant have not been challenged by the State or complainant, therefore, in such
circumstances inevitably the provisions of section 315, P.P.C. come into picture and sentence
is required to be awarded under section 316, P.P.C. The section 315, P. P.C. Qatl -e-Shibh i-
Amd, punishable under section 316, P.P.C., reads as under: --
"315. Qatl Shibh -i-amd. ---Whoever, with intent to cause harm to the body or mind of any
person causes the death of that or of any other person by means of a weapon or an act which
in the ordinary course of nature is not likely to cause death is said to commit qatl shibh -i-
amd."
10. Thus, the conviction and sentence, passed by the Sessions Judge, Khuzdar under
section 302(b), P.P.C. is set aside and the appellant is convicte d and sentenced under section
316, P.P.C. for Qatl -e-Shibh -i-amd for 10 years' R.I. along with Diyat amount to the legal
heirs of the deceased. The benefit of section 382 -B, Cr.P.C. is extended in favour of the
appellant and the appellant shall be kept in jail, till the payment of Diyat amount.
With the above observations, the instant appeal stands disposed of.
MWA/57/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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