2002 PLP 1105 (YLR)

4. Dr. Rehmat Ali P.W.‑8 conducted the post‑mortem examination of the deceased and noted the following two injuries:‑

1. A stitched wound c.m. long on middle part of forehead.

2. A stitched wound 1.5 c.m. long on the back‑and middle of head 4 c.m. above the, occipital prominence.

5. The pistol P‑4 was recovered from the appellant which was attested by Muhammad Nawaz P. W.6 but the recovery is of no consequence because no empty was recovered from the place of occurrence. Apart from the prosecution witnesses the appellant examined Muhammad Shamshad as D.W.‑1 in support of his contention.

6. The appellant when examined under section 342, Cr.P.C. made the following reply-- "I was present in the marriage party. Umar, Gogi, Bubby and Qayyum were present in the marriage party. They were firing in air to celebrate the marriage. Some elders forbade them from firing but I told them that it was a happy occasion and the boys may not be checked from celebration. A stray bullet hit the deceased. The deceased was despatched to the Hospital in injured condition where his relatives came for the first time and concocted a false version after the death of the deceased."

7. The learned counsel for the appellant argues that it was a marriage party and a number of persons were resorting to firing, as such it could not be ascertained as to whose fire hit the deceased. He was alternatively argued that even if it is admitted that appellant did cause the injury to the deceased even then offence under section 302(b), P.P.C. is not constituted, therefore, his conviction under that section as recorded by the learned trial Judge is not maintainable. The appellant has been convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and also to pay a compensation of Rs.50,000 to the legal heirs of\deceased, failing which to further undergo six months' S.I.

8. The learned counsel at the very outset argued that' facts and circumstances are abundantly clear to show that in fact it was an accidental fire and was not at all intentional. The offence, therefore, at the best would be covered by section 318, P.P.C. and not by section 302, P.P.C. According to the learned counsel it is prosecution's own case that it was a marriage party and in that party people were resorting to firing out of rejoicing and marry making etc. The appellant was amongst those persons who were firing, which unfortunately has developed as an indecent rather dangerous habit or custom in various parts of the country, especially, in villages. A number of casulties have occurred but the people have not learnt any lesson and resort to such dangerous act of wanton and aimless firing as a rude expression of their happiness and jubilation. According to the learned counsel, for the appellant, he had absolutely no enmity, with the deceased. Had there been so, he would not have vindicated the same in a party. It appears that the appellant alongwith others was recklessly firing in the marriage party and unfortunately a bullet hit the deceased which pierced through his head and he subsequently succumbed to the same. The facts and circumstances fully attract the ingredients of section 319, P.P.C. which is reproduced as under:‑ "319 Whoever commits Qatl‑e‑Khata shall be liable to Diyat: Provided that, where Qatl‑e‑Khata is committed by any rash or negligent act, other than rash or negligent driving, the offender may, in addition to Diyat, also be punished with imprisonment of either description for a term which may extend to five years as Tazir." The learned counsel supplements that the medical evidence supports the appellant's contention that no scortching or tattoing was noticed on the dead body, meaning thereby that it was fired from quite some distance and not from close range. The prosecution version that he had a dispute with the accused and he fired an aimed shot hitting the deceased is absolutely unconvincing and cannot be accepted.

9. The learned counsel for the State as well as for the complainant do not very seriously controvert and refute the contentions raised by the learned counsel. The appellant has also provided a data showing the period of detention in jail. The appellant was arrested in September, 1993 and was bailed out on 14‑2‑1996. Thereafter, he absented himself from Court and was arrested on 7‑12‑1996, since then he is confined in Jail as an under-trial prisoner and subsequently as a condemned prisoner, as such the appellant has undergone physical detention and confinement for a period of seven and half years, which if computed keeping in view the concession and remissions allowed to him, would be equal to 12 years or so. Maximum punishment provided under section 319, P.P.C. is five years' R.I. alongwith Diyat.

10. I have considered the above arguments and have also gone through the evidence and relevant record and find that contentions raised by the learned counsel for the appellant are not without substance. In view of the above noted facts, it is hard to believe that appellant committed intentional murder of the deceased. It appears to be result of reckless act of the appellant which has been defined as Qatl‑e‑Khata under section 318, P.P.C. because obviously the death has been caused by mistake on the part of the appellant. He is, therefore, liable to be convicted under section 319, P.P.C. The learned counsel for the complainant has not opposed the conviction under section 319, P.P.C. very seriously because in event of appellant's conviction under section 319, P.P.C., the complainant and other heirs of the deceased will be entitled to receive Diyat as well. The appellant has already undergone substantial period of imprisonment and when the same is coupled with Diyat then conviction and sentence under section 319, P.P.C. would be more favourable to the complainant.

11. For what has been discussed above, conviction of the appellant under section 302(b), P.P.C. is set aside and he is convicted under section 319, P.P.C. for committing Qatl‑e‑Khata of Waheed Ahmad deceased. He is accordingly sentenced to suffer five years' R.I. which according to the learned counsel he has already undergone. He is further ordered to pay Rs.1,50,000 Diyat to the legal heirs of the deceased, which will be recovered as arrears of land revenue, in default whereof, the appellant will further suffer six months' S.I.

12. Criminal appeal as well as criminal revision both stand disposed of in the above terms. N.H.Q./M‑1065/L Order accordingly.