1999 PLP 946 (YLR)

(2) Whether accused Eijaz Ahmed alias Pathana committed the Qatl‑i‑Amd of deceased Abdul Hameed?

8. On assessment of the evidence, the appellant was found guilty and was convicted and sentenced as abovementioned.

9. We have heard Mr. Shahadat Awan, the learned counsel for the appellant and Mr. Habib Ahmed, Asstt. Advocate‑General for the State as well as Mr. Umer Farooq Khan, the learned counsel for the complainant and applicant in Criminal Revision No. 45 of 1998 at length and have gone through the, record and proceedings of the case.

10. The learned counsel for the appellant contended that the charge against the appellant in this case was framed for an offence of Qatl‑i‑Amd punishable under section 302, P.P.C., but the trial did not proceed in accordance with section 304, P.P.C., the requirements of which are mandatory in nature. According to him the learned Judge while conducting the trial has ignored the provisions of section 17 of Qanun‑e‑Shahadat, as such no reliance can be placed on the testimony of P.Ws. examined at trial. He further argued that in the statement under section 342, Cr.P.C. the question with regard to committing the offence of Qatl‑i -Amd was put to the appellant, again was not in accordance with law. He lastly submitted that the learned Judge though in the judgment has held that the appellant had committed Qatl‑i‑Amd but convicted and sentenced him to imprisonment for life only under section 302, P.P.C. Since section 302, P.P.C. is divided in 3 parts, as such conviction and sentence was to be awarded keeping in view such provisions, and has not mentioned as to under which provision 'the case against the appellant was proved. Such legal provisions of law have not been strictly followed, therefore, he requested that the case may be remanded for fresh trial.

11. On the other side, the learned A.A.‑G. could not controvert the above contention in view of the legal position of the case.

12. The learned counsel for the complainant also frankly conceded that the case has not proceeded in accordance with law and the requirement of Tazakia‑Shahood of witnesses has not been done as laid down under section 304, P.P.C., so he did not raise any objection to the remand of the case.

13. We have given our anxious thought to the contentions submitted above. Charge in this case has been framed under section 302, P.P.C. for committing Qatl‑i‑Amd but while conducting the trial the learned Presiding Judge has not followed the mandatory procedure laid down under section 304, P.P.C. which concerns the mode of trial. For proper guidance reference is made to sections 300, 302 and 304, P.P.C. as under: "Section 300 Qatl‑i‑Amad.‑‑‑ 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 knowledge that his act is imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl‑i‑Amad. Section

302. Punishment of Qatal‑e‑Amad. ‑‑ Whoever commits Qatal‑e‑Amd shall, subject to the provisions of this Chapter be‑‑ (a) punished with death as Qisas; (b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is 'not available; or (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 " Section

304. Proof of Qatl‑i‑Amd liable to Qisas etc.‑‑‑ (1) Proof of Qatl‑i‑Amd liable to Qisas shall be in any of the following forms, namely:‑‑ (a) The accused makes before a Court competent to try the offence of voluntary and true confession of the commission of the offence; or (b) try the evidence as provided in Article 17 of Qanun‑e‑Shahadat, 1984 (P.O. No. 10 of 1984)." (2) The provisions of subsection (1) shall mutatis mutandis, apply to a hurt liable to Qisas." Section 300, P.P.C. defines word "Qatl‑i- Amad" and section 302, P.P.C. prescribes its punishment, whereas section 304, P.P.C. lays down the mode of recording evidence.

14. We have gone through the record and proceedings of the case thoroughly. Nol doubt, charge has been framed in accordance with section 300, P.P.C. but the competence of the prosecution witnesses to testify has not been done in accordance with Article 17 of Qanun‑e‑Shahadat. Statement under sec tion 342, Cr.P.C. of appellant again is not in consonance with the mode of recording of evidence. Above all learned Trial Court has not convicted and sentenced the appellant under any of the three parts of section 302, P.P.C. but has simply convicted and sentenced him under section 302, P.P.C. which is not in consonance with its provisions.

15. On this aspect of the case we are fortified by the case of Mudassir alias Jimmy v. The State, reported in 1996 SCMR

3. The Honourable Supreme Court has laid down the guidelines with regard to the trials in respect of section 302, P.P.C. punishable with Qatl‑i‑Amad in paragraphs Nos.28, 29, 30 and 31 at pages 16 and 17 of the said judgment. It has also been held in the above case that it is bounden duty of the Court to specify the relevant subsection of section 302, P.P.C., whereunder the accused are convicte6 and sentenced and nothing should be left to presumption.

16. Accordingly, we while setting aside the conviction and sentence of the appellant, remand the case for fresh trial and direct the trial Court to frame charge, record evidence and pass judgment in accordance with the law as mentioned above. N.H.Q./E‑18/K Case remanded.