1992 P Cr (PLP)

JUSTICE RAJA AFRASIAB KHAN, MEMBER.

Ali Sher (25) son of Khan Muhammad, caste weaver, resident of Chak No.22/1-AL, Police Station Sadar Renala Khurd, District Okara was tried by the. learned Judge, Special Court for Speedy Trials No.II, Lahore, under section 319, P.P.C. He was accordingly convicted under the aforesaid section of the Pakistan Penal Code on 9-3-1992 and was held to be liable to pay the Diyat. It was observed that under section 323, P.P.C. the value of the Diyat has been determined as a sum of Rs.1,70,610 equivalent to the value of 30.630 grams of silver: The learned trial Judge also observed that while fixing the value of the Diyat, the financial position of the convict had to be taken into consideration. Keeping in view the circumstances of the case, the learned Judge fixed the Diyat money at Rs.2,00,000 which was ordered to be paid to the legal heirs of the deceased Shazia. The learned Judge further convicted and sentenced the appellant to three years' R.I. as Taazir.

2. On statement of Faiz Ahmed Bhatti, a cases under section 302/34, P.P.C. was registered with Police Station Sadar Renala Khurd. District Okara on 1-11-1991 in respect of an occurrence which took place on 31-10-1991 at 4 p.m. The facts, in brief, are that Faiz Ahmed Bhatti is a resident of Chak No.22/AL. He runs a grocery shop in the village. His son Muhammad Aslam had gone to Saudi Arabia for employment. His other sons are labourers. About three years ago. Hanif potter resident of the village had tried to outrage the modesty of wife of lnayat. Hanif potter was punished by an assembly of the villagers and was ordered to leave the village permanently. Faiz Ahmed Bhatti (complainant) and his sons helped Hanif in his ordeal. They took a stand that Hanif potter could not be expelled by the village community. On account of this background, Khan Muhammad etc. had a grudge with the complainant party. They used to declare in the village that they would take revenge from the complainant because he rendered support' to Hanif potter against the decision of the villagers. On 31-10-1991 a marriage party had come in the, village at about 3 p.m. in connection with the -marriage ceremony of daughter of the said weaver. When the ceremony was being finalized for the departure of the bride, the children of the village were also present in large numbers in the house of the complainant. Shazia (11), a granddaughter of the complainant, was also present with the children. Shazia was standing near a heap of cowdung. Ali Sher and his brother Abbass reached there. Ali Sher, appellant was armed with a carbine. On seeing Shazia, Abbass raised a Lalkara that a lesson should be taught by Ali Sher for helping Hanif potter. Upon this, Ali Sher fired which hit on the left arm and left flank of Shazia. This incident was seen by Faiz Ahmed Bhatti, Muhammad Arif son of Pathan and Muhammad Fazal son of Bela. The witnesses had come to attend the aforesaid marriage ceremony. The injured Shazia was immediatley taken to Civil Hospital, Pattold. However, the doctor on duty in the hospital advised the complainant to take the injured to Lahore. Shazia was placed in an ambulance for taking her to Lahore for treatment. While on the way, Shazia died on account of injuries. She was, therefore, taken back to the village.

3. Sana Ullah, Sub-Inspector (P.W.7) investigated the case. He went to the spot alongwith police constables. Injury statement Exh.P.B. and inquest report Exh.P.C. of the dead body were prepared by him. The dead body was sent for post-mortem examination to hospital under the escort of Shaukat Ali and Latif Constables. The dead body was identified by Muhammad Rafiq and Muhammad Sharif, P.Ws. He recorded the statements of prosecution witnesses. Under his direction, draftsman prepared site plan Exh.P.D. Shaukat and Latif constables produced shirt P.2, Shalwar P.3 of the deceased and a sealed Phial containing pellets, before the Investigator. These articles were taken into possession by the witness vide recovery memo. Exh.P.G. The remaining investigation was conducted by Muhammad Yaqoob Inspector formerly S.H.O. (P.W.8). He recorded the statement of Ubaid Ullah draftsman under section 161, Cr.P.C. He also recordedthe statement of Fazal (P.W.) on 13-11-1991. He, on the basis of evidence, altered the offence from 302 to one under section 319, P.P.C. During the investigation, he found Abbas co-accused to be innocent. Ali Sher, appellant was arrested by him on 16-11-1991. The appellant led the police officer to the recovery of carbine P.1 from his house. The weapon was taken into possession vide recovery memo. Exh.P.F. This recovery was attested by Muhammad Sharif and Muhammad Hanif P.Ws. On. 1-11-1991. Di. Akhtar Alam (P.W.1) conducted the post-mortem examination on the dead body He found the following injuries on it:-- (1) A lacerated fire-arm wound 8 c.m. x 4 c.m. muscle deep with blackened edges in front of left elbow joint. (2) Lacerated wound (fire-arm) 5 c.m. x 4 c.m. deep going margins blackened and inverted with protuberance of small gut from the wound on left part of the abdomen 6 c.m. lateral to umblicus. In the opinion of. the doctor, the death occurred on account of haemorrhage and shock as a result of injury No.2 which was sufficient to cause death in the ordinary course of nature. Injury No.2 was declared simple in nature. All the injuries were ante-mortem and caused by a fire-arm. The probable time between death and post-mortem was within 24 hours while between injury death was about 6 hours. Ocular account was furnished by Faiz Muhammad (P.W.3), Muhammad Arif (P.W.4) and Fazal (P.W.5).

4. The appellant denied the allegations levelled against him in his statement under section 342, Cr.P.C. He took up the plea of alibi by stating that he had gone to Wan Radha Ram. He stated that he came back to the village and he came to know about the registration of a case against him. Sharif P.W. chased him on a motor-cycle in the company of two other persons. He maintained that on account of fear of his being arrested, he left the village and remained underground for some time. He stated that he voluntarily appeared before the police on 6th or 7th November, 1991. While replying another question, he stated that Said, whose daughter was to be married on the day of occurrence, was the husband of his father's sister. His plea was that he was not expected to fire out of happiness on the occasion of marriage of a daughter of his close relative. He also made a statement under section 340(2), Cr.P.C. in disproof of the allegations levelled against him. Muhammad Hanif (D.W.1) and Said son of Ilyas (D.W.2) appeared in support, of his defence plea.

5. The learned trial Judge after reviewing the whole prosecution evidence, convicted and sentenced the appellant under section 319, P.P.C. for having committed Qatl-e-Khata liable to Diyat.

6. Raja Muhammad Yaqoob Khan, learned counsel for the appellant contends with vehemence that there was not an iota of evidence to connect the appellant with the commission of the crime inasmuch as it was a case of accidental firing having been made by some member of the marriage party and that the prosecution had failed to produce evidence against the appellant for recording conviction against him. To prove his plea, he read the prosecution evidence before us. The learned Assistant Advocate-General defended the conviction and sentence of the appellant by adopting the reasons given in the judgment under challenge. His argument was that the appellant remained absconder from his village for about 25 days and that he could not give any reasonable explanation for his absence from the place of occurrence. It was argued that he was named as an accused in the F.I.R.

7. We have heard the learned counsel for the parties and have read the whole prosecution evidence very carefully. It is true that the prosecution had failed to make out a case under section 302, P.P.C. against the appellant. Fazal P.W.5 was an independent and disinterested witness. He joined the marriage party on the day of occurrence. According to him, after taking food, ladies of the house were busy in performing the Gharoli ceremony. He testified that Ali Sher was armed. He fired with his weapon which hit Shazia. On receipt of injury, Mst. Shazia fell down. He and another lady lifted Mst. Shazia and handed her over to her relatives. He, emphatically stated that Ali Sher -appellant was standing at a distance of only one Karam from him when he fired. He further stated that he was standing at a distance of about 8/10 Karams from Haveli of Said. There is, admittedly no enmity between Fazal and the appellant. The testimony of Fazal (P.W.5) stands fully corroborated by the medical evidence of Dr. Akhtar Alam (P.W.1) as well. According to doctor, injury. No.2 was 5 c.m. x 4 c.m. in diamension and was declared grievous in nature. The medical evidence demonstrates that Shazia was injured with a fire arm from a close range because there was blackening around the injury. The medical evidence does lend corroboration to the ocular account of Fazal (P.W.5). The prosecution has thus succeeded to prove its case beyond reasonable doubt that Mst. Shazia died on account of a shot having been fired by Ali Sher, appellant in order to express his joy on the aforesaid occasion. The case, therefore, falls under the provisions of section 319, P.P.C. The appellant had committed an offence of Katl-e-Khata. He was, therefore rightly convicted and sentenced to pay the Diyat money to the legal heirs of the deceased.

8. Learned counsel contends that the appellant is a poor labourer and that he would not be in a position to pay the Diyat money and that the Diyat money had to be fixed to view of the financial condition of the accused. It is true that Diyat money has to be fixed keeping in view the financial position of the accused under section 323, P.P.C. However, the provisions of section 323 command that Diyat money would not be less than Rs.1,70,610 equivalent to 30.630 grams of silver. There is, therefore, no alternative but to grant the Diyat money of Rs.1,70,610 to the legal heirs of the deceased Shazia. However, we are inclined to reduce the sentence awarded to the appellant from 3 years to one year's R.I. Learned counsel may in the meantime try to make out a case for the release of his client under the provisions of law. With this modification, there is no substance in this appeal which fails and is hereby dismissed. N.H.Q./37/SAC Order accordingly.