2019 Y L R 2074
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
SYED WALI ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 240 of 2018, decided on 21st March, 2019.
Penal Code (XLV of 1860) ---
----Ss. 302(b), 365, 511, 427, 147, 148 & 149--- Anti Terrorism Act (XXVII of 1997), S. 7 ---
Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person,
punishment for attempt to commit offences punishable with imprisonment for life or for a
shorte r term, mischief causing damage to the amount of fifty rupees, rioting, rioting armed
with deadly weapon, unlawful assembly, act of terrorism ---Appreciation of evidence---
Accused was charged for committing murder of the deceased by firing--- Record showed t hat
deceased was accompanying the eye- witnesses of the occurrence at the relevant time---
Witnesses had recorded their evidence in line with each other and unanimously admitted that prior to the incident they were not known to each other ---No political rift, business rivalry,
landed dispute or any other such relation rather existed between the parties ---Circumstances
suggested that the occurrence had taken place at the spur of the moment when the parties were making attempts to over -take the vehicles of each other ---Plea taken by the defence was
that accused -appellant was making aerial firing and due to crossing of the speed- breaker, the
fire-shot hit the deceased, therefore, element of mens rea for committing the crime was
lacking ---If the accused -appellant had intended to cause death of the deceased, he would
have made repeated and indiscriminate firings upon the deceased and his companions, who were lying helpless and armless at the mercy of the accused -appellant, but the accused-
appellant did not chose to repeat ---No previous relation existed between the parties thus, the
element of preparation for committing the crime was also lacking ---Inference could be
drawn, that the accused -appellant committed offence under S.321, P.P.C., which was
punishable under S.322, P.P.C.--- Said section provided that whoever committed qatl -bis-
sabab shall be liable to diyat; being so, while maintaining the judgment passed by the Trial Court, conviction and sentence of accused- appellant was modified from S.302(b), P.P.C. to
that of S.322, P.P.C. and he was sentenced to pay the amount of Diyat prescribed at the
relevant time ---Appeal was disposed of accordingly.
Nouroz Khan Mengal for Appellant.
Habib Ullah Gul, Additional P.G. for the State.
Date of hearing: 12th March, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---The instant Criminal Appeal is directed against the
judgment dated 9th August 2018 (hereinafter referred as, "the impugned judgment"), passed
by learned Sessions Judge Noushki (hereinafter referred as, "the trial Court"), whe reby the
appellant has been convicted under Section 302(b), P.P.C. and sentenced to suffer imprisonment for Life with compensation of Rs.2,00,000/ - (Rupees Two Lacs) to the legal
heirs of deceased as envisaged under Section 544- A, Cr.P.C. or in default the reof to further
suffer six months S.I., with the benefit of Section 382- B, Cr.P.C.
2. Facts of the case are that on 27th October 2013 the complainant Chakkar Khan,
lodged FIR No.95/2013 at Police Station Noushki, under Section 302, Q&D read with Sections 3 65, 511, 427, 147, 148, 149, P.P.C. read with Section 7 of Anti Terrorism Act,
1997, stating therein that he is resident of Quetta. On the day of occurrence he along with his paternal cousin Sher Muhammad Mengal came to Noushki from Quetta with Barrat ( ). On their way back, Qambar Sajadi was sitting on the front seat and Jahangir, Satak, Shah Mir and Abaadullah were sitting on the rear seat. At about 4:45 p.m. when they were crossing
Kashingi Police Naka, a Toyota land cruiser pick -up No.BD -6709, after overtaking, stopped
in front of them. He tried to take his vehicle forward by turning, but in the meanwhile, the
driver of the Land Cruiser shouted to kidnap them. Hence, he accelerated the speed of vehicle, but in the meanwhile, two persons sitting in the rear of the pickup, got down and
started firing, due to which one bullet hit his companion Satak on his head, due to which he died at the spot. They got down from the vehicle. There were many people with the Barrat and police Naka was also close. Their rel ative also reached there and they overpowered the
said three accused with arms and handed over them to Naka Incharge of police, whereas two accused made their escape good while taking advantage of the rush. The name of the accused driver revealed as Muhamm ad Akbar, while the name of the accused, who made firing
revealed as Syed Wali and the name of the co -accused revealed as Abdul Hakeem, Abu
Bakar and Syed Muhammad.
3. On completion of investigation and after submission of challan, trial was commenced.
The prosecution produced twelve witnesses, whereafter the appellant and acquitted accused
were examined under Section 342, Cr.P.C. The acquitted accused also recorded his statement
on oath under Section 340(2), Cr.P.C., but they did not produce any witness in their defence.
On conclusion of trial and after hearing arguments, the appellant was convicted and sentenced as mentioned above, while co- accused Muhammad Akbar was acquitted of the
charge. Whereafter, the appellant has filed the instant appeal.
4. Learned counsel for appellant Mr. Nouroz Khan Mengal, Advocate, at the very outset
of hearing, made it clear that he is not going to contest the case for acquittal of the appellant, but would press the same for a lesser sentence. In support of his contention, he submitted that if the prosecution story is believed in toto, even then the appellant would hardly be liable for
committing an offence of Qatl -bis-Sabab as provided under Section 321, P.P.C. punishable
under Section 322, P.P.C., because the appellant made a single shot aerial firing, thus had no
mensrea to commit the crime, thus the alleged offence would fall within the ambit of Section
321, P.P.C. punishable under Secti on 322, P.P.C.; that since the appellant had no intention to
cause death of, or cause harm to any person including the appellant, thus the conviction cannot be maintained under Section 302(b), P.P.C.
5. We have given our anxious thought to the arguments advanced by the learned counsel
for the parties. In order to evaluate and arrive at a just decision, we even examined the file
from the angle if the appellant could earn an acquittal though the defence counsel has not
argued the case from that angle.
6. Befo re entering into the proposition, it would be advantageous to have a glance at
sections 300 and 321 of the P.P.C., which provide definition of Qatl -i-amd and Qatl -bis-
Sabab, as under:
"300 Qatl -i-amd, Whoever, with the intention of causing death or with t he intention of
causing bodily injury to a person, by doing an act which in the ordinary course of
nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person,
is said to commit qatl -i-amd.
"321 Qatl -bis-Sabab. Whoever, without any intention to cause death of or cause harm
to, any person, does any unlawful act which becomes a cause for the death the death of another person, is said to commit qatl -bis-Sabab."
7. A bare perusal of both the above provisions of law would lead us to the inference that
the main distinguishing factor between the two is; that in case of qatl -i-amd, intention of the
accused must be to cause death or such bodily injury, whi ch in the ordinary course of nature
is "likely to cause death", while in the case of Qatl -bis-Sabab, the action was without any
intention to cause death or cause harm to any person, but due to such action, the death was caused. Thus, in order to prove the allegations of Qatl -i-amd intention is the primary
consideration, showing aim and objective of an offender.
8. It has been observed that the prosecution has produced twelve witnesses, out of whom
the complainant PW- 1 Chakar Khan, PW -3 Shah Mir, PW -6 Abdul Majeed and PW- 8
Jehangir Khan are the eye- witnesses of the occurrence and the deceased were accompanying
them, when the instant occurrence had taken place. All the witnesses have recorded their evidence in line with each other and unanimously admitted that prior to the incident they had
not known to each other. Besides, there also existed no political rifts, business rivalry, landed dispute or any other sort of relation rather at the first time they met when the incident had taken place at the place of occu rrence. Be that as it may, we have no hesitation to hold that
the occurrence had taken at the spur of the moment when the parties were making attempts to cross the vehicles of each other. Even otherwise, a single shot was fired and according to plea taken by the defence that the appellant was making aerial firing, but due to crossing the speed breaker, the firing shot hit to the deceased. Thus, the element of mensrea for committing the crime is lacking in the instant case. Had the appellant intended to caus e death
of the deceased he would have made repeated and indiscriminate firings upon the deceased and his companions, who were lying helpless and armless at the mercy of the appellant, but it appears that the appellant has never chosen to repeat. Since, the re existed no previous
relation of the parties with each other, thus the element of preparation for committing the
crime is also lacking.
9. From the above discussion, the only inference, which safe could be drawn, is that the
appellant committed an offence under Section 321, P.P.C., which is punishable under Section
322, P.P.C., which provides that whoever commits gatl -bis-Sabab shall be liable to Diyat.
Being so, we maintain the judgement passed by the learned trial Court, but alter the conviction and sen tence from Section 302(b), P.P.C. to that of Section 322, P.P.C. and
sentence the appellant to pay the amount of Diyat prescribed at the relevant time, the sentence of life imprisonment awarded to the appellant is modified to Diyat. So far as the payment o f Diyat is concerned, it shall be paid in lump sum or in installments to the legal
heirs of the deceased before the trial Court within a period of five years as provided under section 331, P.P.C.
Appeal is accordingly disposed of.
JK/17 -Bal. 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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