ABID REHMAN Versus FAROOQ UMAR BHOJA

ORDER

SHAKEEL AHMAD, J.--- Leave to appeal is sought against the judgment dated 20.05.2022 ( impugned judgment ), passed by the Islamabad High Court, Islamabad ( High Court ), whereby the Criminal Revision Petition, brought by the petitioner against the order dated 12.11.2019, of the Additional Sessions Judge IV, Islamabad (East), was allowed.

2.Precisely, following the crash of passenger Flight No.B4-213 (Bhoja Air) within the territorial jurisdiction of Police Station Koral, Islamabad, on 20.04.2012, FIR No.123 dated 20.04.2012 was registered at Police Station Koral under Sections 302, 287, 286, 427, 120-B and 109 of the Pakistan Penal Code ( P.P.C. ). Subsequently, on the directions of the Ex-Officio Justice of Peace, another FIR bearing No.278 dated 11.11.2017 was registered at the same police station under Sections 302, 427, 120-B, 286, 287 and 109 P.P.C. Upon submission of the challan before the trial Court, instead of proceedings to frame the charge, the trial Court deemed it appropriate to first determine the question regarding the applicability of Section 302, P.P.C. After hearing learned counsel for the parties, the trial Court, through an order dated 12.11.2019, observed that prima facie allegations against the accused attracted the offence under Section 321, P.P.C. ( Qatl-bis-Sabab ), punishable under Section 322, P.P.C. The Complainant of FIR No.278, i.e., the petitioner herein, feeling aggrieved by the said determination, assailed the order dated 12.11.2019 before the High Court, which, through the impugned judgment, allowed the petition and set aside the order of the trial Court. Hence, the present petition.

3.After hearing the learned counsel for the parties at length and considering their respective submissions, we find that the controversy brought before us revolves around the following interrelated questions:

4.A perusal of the FIR No. 138 registered at Police Station Koral, Islamabad, reveals that offences under Sections 302, 287, 286, 427, 120-B, and 109 P.P.C. were incorporated therein. Upon completion of the investigation, a challan was submitted before the competent Court under Section 173 of the Criminal Procedure Code (Cr.P.C). The Sessions Judge/ trial Court, instead of proceeding straightaway to frame the charge, first examined whether the facts and circumstances of the case constituted the offence of Qatl-i-Amd punishable under Section 302, P.P.C. or a lesser offence falling within the ambit of Section 321, P.P.C., namely Qatl-bis-Sabab , punishable under Section 322, P.P.C. The trial Court, through an order dated 12.11.2019, held that prima facie the allegations against the accused attracted the offence defined under Section 321, P.P.C., punishable under Section 322, P.P.C. As the said offence was triable by a Magistrate vested with powers under Section 30 Cr.P.C., the matter was accordingly transmitted to the concerned Magistrate for proceeding further in accordance with law. However, the High Court, while exercising its revisional jurisdiction, set aside the said order of the Sessions Judge/ trial Court and remanded the matter back to the trial Court for afresh determination, strictly in accordance with law, regarding the applicability of Section 302, P.P.C. or otherwise.

5.Having examined the relevant statutory provisions, we deem it appropriate to first advert to the distinction between offences punishable under Sections 302 and 322 of the P.P.C. A careful reading of Section 302, P.P.C. shows that the offence of Qatl-i-Amd is predicated upon the existence of intention (Qasd) to cause death, or the knowledge that the act committed is so imminently dangerous that it must, in all probability, result in death. The gravamen of the offence, therefore, lies in the presence of mens rea in the form of intention or knowledge attributable to the accused. In contradistinction, Section 322, P.P.C., which provides punishment for Qatl-bis-Sabab , as defined in Section 321, P.P.C., contemplates a situation where death is caused without any intention to cause death. The essential element of the said offence is the absence of the requisite mens rea for Qatl-i-Amd , and the death results from a rash, negligent or otherwise unlawful act not directed towards causing death. The distinguishing feature between the two offences thus rests upon the presence or absence of intention or knowledge constituting the mental element of the offence. Applying the aforesaid principle to the nature of aviation disasters, it is ordinarily observed that fatalities resulting from air crashes occur on account of technical malfunction, operational negligence, human error on the part of the crew members, or regulatory lapses in the oversight of aviation safety. In such circumstances, although the consequences may be catastrophic, the element of intention to cause the death of passengers or crew is, in the ordinary course, conspicuously absent. The criminal liability, if attached, is, therefore ordinarily examined within the framework of offences predicated upon negligence or absence of intent rather than deliberate homicidal conduct. In the present case, the Sessions Judge/trial Court, while considering the material placed before the Court at the preliminary stage and after hearing the learned counsel for the parties, undertook an examination of whether the allegation, even if taken at their face value, disclosed the ingredients necessary to constitute the offence of Qatl-i-Amd punishable under Section 302, P.P.C. Upon such examination, the trial Court recorded a prima facie finding that the material on record did not disclose the presence of the requisite mens rea in the form of intention or knowledge to cause death. Consequently, the trial Court concluded that the allegations, if proved, would fall within the ambit of Qatl-bis-Sabab as defined under Section 321, P.P.C. and punishable under Section 322, P.P.C., and accordingly directed that the matter be transmitted to the Magistrate competent to try the offence by virtue of powers conferred under Section 30, Cr.P.C. In our considered view, the approach adopted by the trial Court aligns with the settled principles governing the determination of the nature of the offence at the stage preceding the framing of a charge.

6.This brings us to question regarding the scope of interference by the High Court in the exercise of its revisional jurisdiction. The jurisdiction of the High Court under Sections 435 and 439 Cr.P.C. is circumscribed in nature and is primarily intended to correct patent illegality, jurisdictional error, material irregularity, or findings that are manifestly perverse or based upon misreading or non-reading of the evidence. It is well settled that revisional jurisdiction is not intended to substitute the High Court s own view for that of the Court below merely because another view may also be possible, particularly where the Court of competent jurisdiction has exercised its discretion upon proper appreciation of the material placed before it. Examined in the light of the above principles, the order passed by the Sessions Judge/ trial Court does not suffer from any illegality, perversity, or jurisdictional defect warranting interference in revisional jurisdiction. The trial Court exercised the jurisdiction vested in it, applied the correct legal standard for determining the applicability of the relevant penal provisions, and arrived at a conclusion which is borne out by the material available on the record.

7.In view of the foregoing discussion, we are of the considered view that in the absence of intention or knowledge to cause death, an air crash resulting from negligence or technical fault would not attract the offence punishable under Section 302, P.P.C. but would fall within the ambit of Qatl-bis-Sabab punishable under Section 322, P.P.C. The Sessions Judge, therefore, rightly altered the charge and transmitted the case to the competent Magistrate. The interference made by the High Court in the exercise of its revisional jurisdiction was thus unwarranted.

8.In the result, this petition is converted into an appeal and allowed, thereby the impugned judgment of the High Court is set aside. No order as to costs.

CMA No. 477/2023:

JK/A-9/SC Appeal allowed.