MUHAMMAD SALEEM Versus State

NAZEER AHMED LANGOVE, J.--- This appeal is directed through the Superintendent, Central Prison, Mach, against the judgment dated 3rd April, 2019, (herein after the "impugned judgment") passed by learned Sessions Judge, Qilla Abdullah at Chaman (hereinafter the "trial court") in sessions case No.29/2017, whereby the accused Muhammad Saleem son of Abdul Rahman (pauper-appellant) was convicted under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life and to pay compensation of Rs.2,00,000/- to the legal heirs of deceased Naqeebullah, in default thereof, to further undergo simple imprisonment for six months with benefit of section 382-B, Cr.P.C. Hence, this jail appeal, with the prayer to set aside the impugned judgment, passed by the trial court and to acquit the appellant of the charge.

2. Facts of the case are that pursuant to report (Ex: P/1-A) of PW-1 Rehmatullah son of Haji Jalal (complainant) instant criminal case, vide FIR No.29/2017 (Ex: P/8-E), dated 8th October 2017, under section 302 Qisas and Diyat Ordinance, was registered at Levies Station Qilla Abdullah, wherein it was alleged that his house, adjacent to the appellant's shop, was being damaged of his sewerage system; in this respect two days before the incident, his (complainant's) younger brother namely Naqeebullah asked Muhammad Saleem (appellant) for making alternate arrangement of sewerage; on which, the latter provoked and extended him threats; on fateful day of incident i.e. 8th October 2017; at about 8:30 a.m. his younger brother went to the shop of Muhammad Saleem (appellant) to ask him of the issue and progress, if any; complainant also rushed behind him; when reached there found Muhammad Saleem, who alleged to have launched an attack upon Naqeebullah with scissor and caused him injuries on abdomen; Naseebullah and Inayatullah present on the spot, intervened, apprehended Muhammad Saleem and handed over him to Levies; Naqeebullah was shifted to hospital but not survived. Hence, this case.

3. On completion of investigation, challan of the case was submitted and trial commenced; after framing charge and denial on the part of appellant, the prosecution produced and examined PW-1 Rehmatullah (complainant), vide, report (Ex: P/1-A); PW-2 Inyatullah son of Haji Muhammad Essa (eye-witness), PW-3 Naseebullah son of Haji Muhammad Essa (eye-witness); PW-4 Syed Jameel Ahmed son of Syed Abdul Wadood, Levies Khasadar is witness of recovery memo (Ex: P/4-A) of parcel (Article-P/1) containing scissor (Article-P/2) and disclosure memo (Ex: P/4-B) of accused PW-5 Nazeer Ahmed son of Haji Abdul Wakeel is witness of recovery memo (Ex: P/5-A) of parcel (Article-P/3) containing blood-stained clothes (Article-P/4) of deceased. PW-6 Dr. Ali Mardan, Police Surgeon produced MLC (Ex: P/6-A), postmortem report (Ex: P/6-B to P/6-E). PW-7 Sabir Jan, Judicial Magistrate, produced statement of accused, recorded under section 164, Cr.P.C. (Ex: P/7-A) sealed in envelope (Article-P/5), application of Investigation Officer (Ex: P/7-B) and murasila (Article-P/6). PW-8 Ali Muhammad Risaldar Levies (Investigation Officer) site sketch (Ex: P/8-A), interim challan (Ex: P/8-B), FSL report (Ex: P/8-C), supplementary challan (Ex: P/8-D) and FIR (Ex: P/8-E).

On examination under section 342, Cr.P.C., the appellant disputed the case of prosecution and pleaded his innocence; however, did not opt to record his statement on Oath, under section 340(2), Cr.P.C, nor produced any witness in defence.

4. After hearing the arguments and evaluating the evidence, the learned trial court, vide judgment dated 3rd April 2019, found the appellant guilty, as such, convicted and sentenced him for the period mentioned above. Hence, this jail appeal. In this respect Ms. Asiya Naz Malik was appointed as pauper's counsel for the appellant at State expenses.

5. Heard the learned counsel for the parties and gone through the record with their assistance, which reflects that a fateful incident of inflicting injury with scissor to the Naqeebullah occurred, which proved fatal and resulted his unnatural death.

6. Perusal of the record shows that PW-1 Rehmatullah (complainant) narrated the facts by assigning vital role of inflicting injury to the deceased Naqeebullah with scissor by the appellant, and background of the incident viz; dispute on sewerage water and making alternate arrangement for this purpose. PWs-2 and 3 Inayatullah and Naseebullah are also eye-witnesses, who apprehended the appellant along with crime weapon i.e. scissor (Article-P/2), fully supported the version of complainant, coupled with medical view by PW-Dr. Ali Mardan. Even in his statement recorded under section 164, Cr.P.C, the appellant admitted the incident, but according to him it was not intentional.

Unnatural death of deceased Naqeebullah is not disputed, proved through ocular and medical view, coupled with the recovery of crime weapon i.e. scissor, Qatl-i-Amd under section 300, P.P.C. is defined as under:

"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."

To constitute an offence of Qatl-i-Amd, it is not necessary that injury should be caused with intention to cause death. If somebody inflicts injury with intention to cause bodily injury which in ordinary course of nature is likely to cause death or with knowledge that his act was so eminently dangerous that it must result in death, it would be a Qatl-i-Amd. Injuries caused on vital parts of the body, such as head, neck and pericardial region may result in causing death. Intention or knowledge is to be gathered from the object for which injuries caused.

7. The moot question would be whether it was a preplanned murder or occurred at spur of moment; the Knowledge as contrasted with intention signifies a state of mental realization with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. Intention on the other hand is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. Intention means shaping of one's conduct so as to bring about a certain event. Mental faculties in the case of intention, therefore, are projected in a set direction. Intention need not necessarily involve premeditation. Whether such an intention exists or not is a question of fact. Where there is neither intention nor knowledge referred to in the section, no offence is made out under section 299 and consequently under section 300, exact locale of injury has to be considered to determine knowledge or intention of assailant. Section 300, P.P.C. categorizes offence of Qatl-i-Amd in three forms i.e. intention of causing death or intention of causing bodily harm by doing an act which in the ordinary course might cause death and the knowledge that the act was so imminently dangerous that it must in all probability cause death. Act of accused, in the present case, fell in the third category of section 300, P.P.C. since the appellant had knowledge that inflicting injury with scissor on highly sensitive and vital part of the deceased, in all probabilities, his act would cause death of deceased.

8. In the light of above discussion and keeping in view the peculiar facts and circumstances of the case, offence in hand falls within the definition of section 302(c), P.P.C, which reads as under:

"302 Punishment of Qatl-i-Amd.

(c). punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of Qisas is not applicable.

Provided that nothing in clause (c) or clause (b) shall apply where the principle of fasad-fil-arz is attracted and in such cases only clause (a) or clause (b) shall apply."

9. In view of above, the appeal filed by the appellant is dismissed; however, conviction under section 302(b), P.P.C. and sentence thereunder for a period of twenty-five years (life imprisonment) is altered and modified to conviction under section 302(c), P.P.C. as Tazir and sentence thereunder for ten years rigorous imprisonment with an amount of Rs.200,000/- (Rupees Two Hundred Thousand), as compensation to the legal heirs of deceased Naqeebullah, provided under section 544-A, Cr.P.C; in default thereof the appellant shall further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. shall remain intact.

With the above modification in the sections and reduction in the period of sentence, the appeal filed by the appellant is otherwise, dismissed.

Order accordingly.

JK/23/Bal. Order accordingly.