MUHAMMAD ZIAUL HAQUE vs THE STATE

MIR HAZAR KHAN KHOSO, J.---The petitioner seeks leave to appeal against the judgment dated 9- 3-1995 passed by a Division Bench of the High Court of Balochistan, Quetta.

2. The facts in brief giving rise to the petition are that on the night between 13th/14th July, 1992, deceased Amanullah Jattak did not stop his vehicle No.UJH212Y at a Naka Chandni Chowk, Satellite Town, Quetta. Whereupon at the direction of the petitioner Muhammad Ziaul Hague, Head- Constable, a police man, named Muhammad Akram absconder fired at the vehicle which resulted in his instantaneous death. Initially F.I.R. Under section 353/324, P.P.C. Etc. Was registered against the deceased and others at the Police Station Satellite Town, Quetta. However, the relations of the deceased were not satisfied with the version of the police and as such his cousin Dasti Khan approached the District Magistrate, Quetta, who held judicial enquiry through ADM/ALO, Quetta.

The enquiry officer held the petitioner and Muhammad Akram responsible for murder of Amanullah Jattak and in result whereof the petitioner was challaned before the Court for trial but Muhammad Akram abscondecrand was, shown as such in the challan.

3. The Sessions Judge, Quetta, framed charge under section 302, P.P.C.

SCMR against the petitioner who did not plead guilty and claimed trial. Prosecution examined eleven witnesses in support of the case. The petitioner denied the allegations and canvassed innocence.

However, the Sessions Judge Ad-hoc, Quetta, found the petitioner guilty for the offence under section 302, P.P.C. And convicted him for the same to imprisonment for life plus fine of Rs.2,00,000 (Rs. Two lacs) and in default to suffer R.I. For five years more with benefit of section 382-B, Cr.P.C. On appeal the High Court maintained his conviction but reduced the sentence to R.I. For ten years With fine of Rs. One lac and in default to suffer R.I. For one year. Benefit of section 382-B, Cr.P.C. Was left intact. The petitioner has come before this Court and sought for leave to appeal. On 26-6-1995 this Court ordered for issuance of notice to the Advocate-General, Balochistan.

4. We have heard Syed Ayaz Zahoor, Advocate Supreme Court, with Mr. W.N. Kohli, Advocate-on- Record, for the petitioner and Mr. Ijaz Yousaf, Additional Advocate-General for the State.

5. Undisputedly the deceased met his death at the place, time and at the hands of police. The presence of the petitioner at the place of incident and ordering Constable Muhammad Akram at the car of the deceased is established through the ocular version of Head-Constable, Khuda Bux.

The version of the police that the deceased was shot at the tyres of the car from behind is negated by the medical evidence of P.W.8 Dr. Abdul Haque, who has categorically stated that the circular wound on the left side of the chest of the deceased was inverted and wound No.2 was its exit wound on the back. The medical officer has not been cross-examined at all. The medical evidence goes unrebutted. Even evidence of Khuda Bux has not been challenged in cross examination. In such situation the learned counsel for the petitioner contended that the offence does not fall within the ambit of section 302, P.P.C. But it may fall under the ambit of any other section. The learned counsel took us through different sections of Pakistan Penal Code and was unable to point out any section which could be said to cover the case of the petitioner. We have gone through the provisions of section 302, P.P.C. And are of the firm opinion that the offence falls under section 302, P.P.C. It is to be pointed out that the Sessions Judge Ad-hoc, Quetta, has not mentioned the subsection under which he convicted and sentenced the petitioner. Section 302, P.P.C. Consists of three parts i.e. (a), (b) and (c). Where prosecution evidence fulfils the requirements of section 304, P.P.C. And Article 17 of the Qanun-e-Shahadat the offence falls under part (a). If evidence produced by the prosecution fulfils the conditions laid down under section 304, P.P.C. And Article 17 of the Qanun-e-Shahadat but sentence of Qisas is not applicable the offence falls under part (c). In case evidence is available but it does not fulfil the conditions laid down under section 304, P.P.C. And Article 17 of Qanun-e-Shahadat the offence falls under part (b). The sentence awarded under section 302(a) is death as Qisas; under section 302(b) is death or imprisonment for life and under section 302(c) the sentence provided is imprisonment up to 25 years. It is obviously incumbent upon the Trial Court while convicting accused under section 302, P.P.C. It should mention the A subsection as the same would determine the quantum of the sentence. However, in the instant case the two Courts below have not attended to this aspect of the case. We as such are not inclined to deal with the evidence at this stage and determine the subsection under which the case B of the petitioner falls. In such situation we are not inclined to further reduce the sentence of the petitioner as insisted by his counsel. There is no merit in the petition which is dismissed #s such. Leave to appeal is refused accordingly.