SYED WALI Versus State

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"), whereby 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 thereof 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 365, 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 relative 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 Muhammad 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 Section 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. Before 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 the 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, which 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 occurrence. 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 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 appellant, but it appears that the appellant has never chosen to repeat. Since, there 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 sentence 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 of 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.