1. RAHMAT HUSSAIN JAFFERI J. - Brief facts giving rise to the present appeal are that on 5.9.2002 the complainant Majno and his son deceased Muhammad Hanif were available at his lands. At about 5:00 p.m. Appellant Wazir armed with hatchet and acquitted accused Yamia armed with lathi came there. Accused persons started excavating their land and throwing extra earth on the land of the complainant on which the deceased protested and restrained them from throwing the earth in his land. The accused were annoyed; therefore they started abusing the deceased and went to him. Thereafter the appellant Wazir caused hatchet injury with its sharp side on the backside of the neck of the deceased whereas acquitted accused Yamin caused lathi blows on the right side of chest and other parts of his body. The complainant raised cries on which PWs Muhammad Nawaz and Bashir came there. The accused then ran away. The complainant went to police station and lodged the report at 6:10 p.m. The police after usual investigation challaned the appellant and acquitted accused in the court of law.
2. The learned Additional Sessions Judge, Naushahro Feroze tried the appellant, co-accused, convicted the appellant for offense punishable, under Section 302(b), P.P.C, and sentenced him to suffer imprisonment for life with benefit of Section 582-B, Cr.P.C, whereas acquitted the co accused Yamin under the impugned judgment dated 15.12.2005.
3. I have heard the advocate for the appellant, A.A.G, for the State and perused the record of this case very carefully.
4. The prosecution relied upon 'three witnesses viz. Complainant Majno, PW.2 Muhammad Nawaz and PW-3 Muhammad Bashir. The complainant gave the same details- of the incident as mentioned in- the earlier part of the judgment therefore need not to be repeated. The complainant specifically stated that on his cries PWs Bashir and Muhammad Nawaz were attracted and same came. PW.3 Muhammad Bashir deposed such facts in his statement. He further admitted that he alongwith PW Muhammad Nawaz was grazing cattle in the land of complainant Majno when he heard the cries and saw appellant Wazir armed with hatchet and acquitted accused Yamin with lathi running away towards their houses. They went there and found the deceased lying in injured condition. The prosecution also examined PW Muhammad Nawaz but he gave completely different story from the story of PW 3 as he showed himself as eye-witness, seeing the incident from the start up to last. His evidence reveals that he and Bashir ' were grazing cattle in the land Of complainant.
5. He further stated that the appellant was excavating earth and throwing it in the land of the complainant therefore the deceased protested which annoyed the accused and then appellant Wazir caused hatchet injury on the back of the neck of-the deceased whereas acquitted accused Yamin caused lathi blows to him. They went there; found the injured lying unconscious and then the accused ran away.
6. From the evidence of above witnesses it is clear that both the witnesses are not unanimous on seeing the incident being taken place, It is not out of place to mention here that the witnesses gave the details of the incident as they saw. It is possible that when two or three persons are present then it is not necessary that a|l the persons should pay attention towards the same direction therefore they may see and notice the incident from their on angles. As such when PW 3 deposed that he saw the appellant running away from the place of incident it was possible that he might not be looking at. The direction where the incident took place therefore he gave such statement but it appears that, the PW Muhammad Nawaz was looking at the direction- of the incident and he witnessed the entire incident from its start up to end. Both the witnesses are unanimous that they were grazing their cattle in the land of the complainant. The said piece of evidence has not been seriously challenged in the cross-examination. From the evidence of PW Muhammad Nawaz it is clear that he saw the appellant causing hatchet injury to the deceased whereas from the evidence of PW.3 it is clear that he saw the appellant running away with hatchet in his hand and after reaching at the scene of incident he saw the deceased lying in injured condition. Their evidence coupled with the evidence of complainant clearly shows that the appellant was the person who caused the hatchet injury to the deceased.
7. Learned counsel for the appellant has challenged the ocular testimony on the ground that PW Miral who was with the complainant at the scene of incident did not state that he saw the incident therefore the case of prosecution is highly doubtful. No doubt PW Miral examined as mashir of the place of incident and arrest of appellant Wazir did not state a single word with regard to his presence at the place of incident or witnessing the incident. He showed himself as a mashir. But the fact remains that on the cries two PWs were attracted. They saw the incident and deposed against the appellant. The learned counsel for the appellant cross- examined the witnesses but he could not get anything from them to discredit .Their evidence nor he was able to shake up their evidence to cast doubt upon their presence at the scene of incident. Furthermore the appellant himself admitted that he went to the police station and lodged a counter case of the same incident as admitted by the Investigating Officer and put to PWA by the appellant that he was one of the accused in the counter case lodged by him. From this statement and stand taken by the accused which has been admitted by the learned counsel for the appellant that a counter case in respect of same incident was filed by the appellant that was pending in the Court of law, clearly shows that the appellant was present at the place of incident but he took a different plea. However, he has not properly taken the said plea in his statement recorded under Section 342, Cr.P.C. As such the presence of appellant at the place of incident has been established from the stand taken by him that a counter case with regard to the same incident was filed and pending before the court of law.
8. In presence of the above-admitted facts the attack on the oral evidence in the 'shape of non- examination of PW Miral on the point of incident has lost its required importance.
9. After considering the material available on the record. I am of the considered view that the prosecution has been able to prove the ocular testimony.
10. As regards the recoveries, the prosecution relied upon the evidence of PW.6 mashir Dodo Khan and PW.5 SIP Nazar Hussain Shah. They deposed that the appellant had produced hatchet before them, which was secured. But they did not state that the hatchet was blood-stained or sealed at the place of recovery. Thus the recovery in absence of sealing at the place of recovery lost its that much importance; therefore the tempering of the hatchet cannot be ruled out in the circumstances of the case when it was sent after one and half months of the recovery and that too by keeping it with the police without furnishing any explanation of delay in sending the property to the Chemical Analyzer. The report of Chemical Analyzer Exh. 17-A shows that the hatchet was sealed but none of the witnesses deposed that the same was sealed at any place. Thus . The hatches allegedly recovered from the appellant was not in the same condition in which the Chemical Analyzer received it; therefore the prosecution has failed to connect the hatchet with the commission of crime.
11. As regards the offence the learned counsel for the appellant has stated that the facts and circumstances of the case are such where the offence would fall under Section 302(c), P.P.C, therefore if the Court finds that the appellant has committed the offence then the conviction from Section 302(b), P.P.C, may be converted to Section- 302(c), P.P.C. He has relied upon (2000 SCM R 1166).
12. The learned AAG has conceded the above position. The learned counsel for the complainant after arguing at some length also conceded that as the incident took place at the spur of moment without premeditation and that causing a single injury therefore the appellant may adequately be convicted and sentenced for offence punishable under Section 302(c), P.P.C.
13. The Qatl-i-Amd has been defined under Section 300, P.P.C, that reads as under:-
300. Qatl-i-Amd: 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 the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd.
14. A bare perusal of above provision of law clearly shows that the section gave three situations and divided in three following parts, where the act would fall under the definition of Qatl-i-Amd:
(1) If a person causes death of any person with intention to kill him;
(2) If the act is done with intention to cause bodily injury to any person and such injury, in the ordinary course of nature is likely to cause deat;
(3) If the act is done with knowledge that the act is imminently dangerous and it must in all probability cause the death.
15. Thus, for attracting the situation of part one there should be intention to kill. For part two there should also be intention to cause such bodily injury, which in the ordinary course of nature cause death. However, for attracting the part three, there should be no intention to kill or intention to cause such bodily injury which in the ordinary course of nature cause death; but a person does such act with knowledge that his act would be imminently dangerous and in all probability it would cause the death.
16. It follows that for attracting parts one and two there should be intention to do such act and for part three there should be "knowledge" and further the intention as required under parts one and two should be missing.
17. It will be further noticed that the parliament have used two different words "intention" and "knowledge" in Section 300, P.P.C, knowing fully well that both the words carry different meanings and are attracted in different situations. The Supreme Court of India gave the distinction between the words "Intention" and "knowledge" in the case of Jai Prakash v. State, (1991) 2 SCC 32 and at page 43 it has been observed as under:- "Knowledge" as contrasted with "intention" signifies a state of mental realization with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, "intention" is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore, in the case of intention' mental faculties are projected in a set direction. Intention need not necessarily involve premeditation.
18. Whether there is such an intention or not is a question of fact."
19. It has also been held in the case of Faqira v. State, (AIR 1955 All 321) as under:- "The words used in S. 300, I.P.C, connote intention and not knowledge. Knowledge as contrasted with intention would more properly signify a state of mental realization in which mind is a passive recipient of certain ideas and impressions arising in it or passing before k. It would refer to a bare state of conscious awareness of certain facts in which human mind might itself remain supine or inactive. On the other hand, intention connotes conscious state in which mental faculties are roused into activity and summoned into action for the deliberate purposes of being directed towards a particular and specified end, which the human mind conceives and perceives before itself. Mental faculties which might be dispersed in the case of Knowledge are in the case of intention concentrated and converged on a particular, point and projected in a set direction. The difference between the shades of the meaning of the two words . Is fine but clear, and the use of the one in place of the other by the legislature must, therefore, be given their full effect."
20. It appears to me that because of the above-definition of Qatl-i-Amd dealing with different acts, situations and mental faculties the Parliament have also categorized its punishment in three manners as provided under Section 302, P.P.C, that reads as under:-
302. Punishment of Qatl-i-Amd: Whoever commits Qatl-i-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.
21. It further appears that for punishing an offender under clauses (a) and (b) of Section 302, P.P.C, the required "intention" as provided under the above-mentioned first and second parts of the provisions of Section'300, P.P.C, should be available and proved whereas for punishing an offender under clause (c) there should be required "knowledge" as provided under above-mentioned part three of Section 300 P.P.C.) without the required "intention" of parts one and two. Thus Qatl-i-Amd which is not punishable as Qisas or Ta'zir will be punishable under clause 'c' of Section 302, P.P.C.
22. The above-view is supported by the view taken by a Full Bench of seven Hon'ble~Judges of Supreme Court of Pakistan in the case Abdul Zahir v. State, (2000 SCM R, 406). The relevant portion appearing in para 17 at page 412, is as under:- "17. Clause (c) of Section 302, P.P.C, ante applies in case of Qatl-i-Amd where, according to Injunction of Islam, the punishment of Qisas is not applicable. A bare reading of the clause would reveal that Section 306, P.P.C, is applicable to cases of Qatl-i-Amd which are not liable to Qisas whereas Qatl-i-Amd not liable to Qisas is indeed punishable under Section 308. There is distinction, albeit very slight, between Qatl-i- Amd to which punishment of Qisas js not applicable and that of the Qatl-i-amd which is not liable to Qisas.
23. A bare reading of Section 308, P.P.C, would show that where offender is guilty of Qatl-i-Amd not liable to Qisas under Section 306 or the Qisas is not enforceable under clause (c) of Section 307, P.P.C., shall be liable to Diyat. We, therefore, endorse the view held by this Court in the case of Ali Muhammad (Supra) (PLD 1996 SC 274) that class of cases to which clause (c) of Section 302, P.P.C, applies is different from class of cases enumerated in Section 306 and punishable under Section 308, P.P.C. Prima facie the cases covered by clause (c) of Section 302, P.P.C, are of. Qatl-i-Amd: (1) where according to the Injunctions of Islam the punishment of Qisas is not applicable but not falling within the ambit of Section 3Q6, P.P.C, punishable under Section 308, P.P.C.; (2) Qatl-i-Amd to which clause (b) of Section 302, P.P.C, is attracted, namely, Qatl-i-Amd wherein proof in either of forms specified in Section 304, P.P.C, is not available is punishable with death or imprisonment for life, by way of Tazir. The use of the word 'or' at the end of clause (b) of Section 302, P.P.C, reinforces this interpretation, In other words, it is a class of Qatli-Amd, which is not punishable with death as Qisas or death or imprisonment for life by way of Tazir but is liable in the matter or punishment to imprisonment of either description for a term, which may extend to twenty-five years. Some of those cases have been noticed in the precedent of Muhammad Hanif (1992 SCM R 2047), Ali Muhammad (PLD 1996 SC 274) and that of Muhammad Mumtaz Khan's case (supra) to a larger extend of minority and lesser extend of 'provocation'."
24. In the present case there was no deceased. The incident took place at the spur of moment in the heat of passion when the dispute arose between the appellant and deceased over throwing earth.
25. Thereafter hot words and abuses were exchanged between the parties. What were those words or abuses have not been elaborated or came on record. There was no previous enmity between the parties. The relations between the appellant and deceased were cordial. The act was not premeditated. The appellant caused a single blow to the deceased. If he had intention to kill the deceased, he could have repeated the same but he did not do so. The injury was such that the deceased did not die instantaneously but he remained alive for a considerable long period as he died on 29.10.2002 after about one month and 24 days of the incident.
26. From the evidence, facts and circumstances of the case it is clear that the Appellant did not come with intention to kill the deceased. He had also no intention to cause such' bodily injury, which in the ordinary course of nature causes the death of the deceased. But he caused the injury with full knowledge that his act of causing injury was dangerous that caused the death of the deceased.
27. Thus the case of the appellant would fall under the third part of Section 300, P.P.C, therefore he is liable to be convicted for offense punishable under Section 302(c), P.P.C. "Reliance is also placed on the case of Promilla v. Safeer Alam, supra, (2000 SCM R 1166).
28. In the light of what has been discussed above, the conviction awarded to the appellant under Section 302(b), P.P.C, is converted to Section 302(c), P.P.C, and sentenced to suffer R.I. For 14 years with benefit of Section 382-B, Cr.P.C. He is directed to pay compensation of Rs. 100,000/- (one lac) to the legal heirs of the deceased as provided under Section 544-A, Cr.P.C, or in default thereof to suffer R.I. For six months: With the above modification in the conviction and sentence the appeal is dismissed.