' MUHAMMAD SAIR ALI, J.--- Criminal Appeals i,e, 187 and 188 of 2003, by leave are directed against the judgment dated 10-1-2002 of learned Single Judge of Lahore High Court, Lahore whereby respondent Muhammad Javed's Criminal Appeal No,660 of 1999 and petitioner Atique Ahmed Kamal's Criminal Revision No,334 of 1993 were decided. Before us Criminal Appeal No,187 of 2003 is complainant's appeal seeking enhancement of respondent No,1's sentence while Criminal Appeal No,188 of 2003 is also complainant's appeal against Muhammad Javed's acquittal from charge under section 302(b), P.P.C. Respondent No,1 i,e, Muhammad Javed was sent up for trial before the learned Additional Sessions Judge, Gujranwala in F.I.R. No,405 dated 10-9-1993 registered under section 302(b), P.P.C. At Police Station, Sabzi Mandi Gujranwala. The learned trial Judge, through judgment dated 28-5-1999 convicted Muhammad Javed, respondent under section 302(b) P.P.C.
And sentenced him to imprisonment for life and to pay Rs,50,000 as compensation to the legal heirs of the deceased (Waheed Ahmed Kamal, brother of petitioner Atique Ahmed Kamal).
2. This judgment was challenged in the High Court by respondent-convict through his Criminal Appeal No,660 of 1999 and by petitioner-complainant through his Criminal Revision No,334 of 1999 seeking enhancement of the sentence.
3. The learned Single Judge of Lahore High Court, Lahore through impugned judgment dated 10-1- 2002 set aside respondent-convicts, conviction under section 302(b), P.P.C., instead convicting him under section 319, P.P.C. For committing qata-i-khata of the deceased. He was accordingly sentenced to suffer five years' R.I. Which by then he had already undergone. The respondent- convict was also ordered to pay Rs,1,50,000 as Diyat to the legal heirs of the deceased to be recovered as arrears of land revenue and in default the convict was ordered to suffer six months'
S.I. Respondents' Criminal Appeal and complainant's Criminal Revision were thus decided, hence Criminal Petitions Nos.233-L and 237-L of 2002.
4. Leave to appeal was granted on 9-5-2003 recording concise facts of the prosecution case as well as the reasons for the leave granting order which is reproduced hereunder:-- "These petitions emanate from an occurrence which had allegedly taken place on 10-9-1993 at about 2-15 p.m. At a distance of about 2 furlongs from Police Station Sabzi Mandi of District Gujranwala and in which occurrence one Waheed Ahmad had got killed. The prosecution case was that the day of occurrence was the day on which one Sarfraz was getting married; that the marriage procession of the said Sarfraz left his house at about 2-00 p.m.; that Javaid accused/respondent was also a member of the said Baarat; that just as the marriage procession left the house of the said bridegroom that said Javed accused started firing shots with his pistol as a mark of re-juicing; that the complainant's father asked the said accused not to do the same as it could lead to the loss of someone's life but the said accused did not listen to him and that when the Barat reached the School Wali Gali, Javaid accused fired a shot which hit the forehead of Waheed deceased who was immediately rushed to the Gujranwala Hospital from where he was referred to General Hospital in Lahore but who died before reaching the said hospital. It had been further alleged by the complainant that Javaid accused and Waheed deceased had some quarrel a few days prior to the occurrence and it was for the said reason that the said accused had done the said deceased to death.
(2) As aresult of the trial held by a learned Additional Sessions Judge at Gujranwala, Javaid accused was found guilty of the charge under section 302(b), P.P.C. For causing qatl-i-amd of Waheed deceased; he was convicted accordingly and was punished with a sentence of imprisonment for life besides the compensation which he had been directed to pay to the heirs of the deceased.
(3) Javaid convict approached the Lahore High Court with Criminal Appeal No,660 of 1999 calling in question the above-notice conviction and punishment recorded against him while Ateeq complainant petitioned the said Honourable Court through Criminal Revision No,334 of 1999 praying for enhancement of the said sentence awarded to him.
(4) Through a judgment dated 10-1-2002 of the Lahore High Court, the above-mentioned Criminal Revision No,334 of 1999 was dismissed. The convict's appeal was, however, partly allowed whereby the conviction of the said convict recorded under section 302(b), P.P.C. Was converted into a conviction under section 319 of the said Code and consequently the convict was directed to suffer only 5 years' R.I. And to pay an amount of Rs,1,50,000 as Diyat to the heirs of the deceased or to suffer six months' S.I. In default of the payment of the said amount of Diyat.
(5) Ateeq complainant is now before us questioning the dismissal of his revision petition before the Lahore High Court and also impugning the above-noticed modifications in the conviction and punishments as made by the Lahore High Court pursuant to the said convict's appeal.
(6) The learned counsel for the complainant-petitioner submits that the shot fired by Javaid respondent had landed in the centre of the forehead of Waheed deceased which had exited from the back of his head. Adds that thus the seat of injury and the point from where the projectile exited completely eliminated any possibility of the fatal injury having been caused by a stray bullet because it is not unknown that the shots generally fired in the wedding processions are fired in the air and are not fired at the forehead level of the people. He argues that the present was thus surely a case of target shooting and not firing in the air as was found by the High Court. Further submits that the learned trial Judge had given cogent reasons to conclude that the shot in question had been fired not from a long distance but from a rather close range and the Honourable High Court had not given any reason to reach a different conclusion. The learned counsel consequently contends that this is a fit case where evidence deserved to, be reappraised on the question in issue.
(7) The learned counsel next argued that the learned Judge in Chamber was again in error in ignoring the provisions of section 301 of the P.P.C. And in holding instead that the case in hand fell within the purview of section 319 of the said Code. Explains that even if it be presumed that the respondent did not intend to cause the death of Waheed deceased, it could not be said that by aiming a shot at the forehead level of a person, Javaid respondent did not know that such an act on his part could cause the death of another person. Consequently, submits IA that the situation being fully covered by the provisions of section 301 of the Pakistan Penal Code, the act of Javaid respondent in causing the death of Waheed deceased fell squarely within the ambit of qatl-i-amd and thus punishable only under subsection (a) or (b) of section 302, P.P.C.
(8) Having heard the learned counsel for the petitioner and having examined the available record, we find that the above-noticed questions raised by the learned counsel do deserve a deeper examination by this Court. It may be added that while directing payment of Diyat, the learned Judge in Chambers had ordered that in default of payment of the stated amount of Diyat the convict shall suffer six months' S.I. This part of the judgment is illegal being offensive of the provisions of subsection (2) of section 331 of the Pakistan Penal Code and will have to be corrected if the High Court judgment is maintained.
(9) In this view of the matter, both these petitions are allowed and leave is granted to consider the said questions.
(10) We are informed, on our question, that Javaid accused, the respondent in these petitions, had since been released from custody. This being so, warrants shall issue for the arrest of Muhammad Javaid respondent. These warrants shall be addressed to the S.H.O. Of Police Station Sabzi Mandi of District Gujranwala for execution but shall carry an endorsement under section 76 of the Cr.P.C.
Directing that if Javaid respondent, after his arrest, executes a bond in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of the learned Sessions Judge of Gujranwala, then he shall be released from custody with a direction to him to make himself available whenever required."
5. Mr. M.A. Zafar, Advocate Supreme Court for the petitioner-complainant, on reading the F.I.R., the medical evidence, statement of the accused and para 11 of the impugned judgment, repeated his contentions as recorded in the leave granting order. In contrary arguments, Syed Ali Imran, D.P.-G.
Made his submissions.
6. We have considered the submissions of the learned Advocates Supreme Court and have examined the record. Complainant in his F.I.R. No,405 dated 10-9-1993 complained that while in the marriage procession of their neighbour i,e, Sarfraz son of Hameed-Ullah, Muhammad Javed son of Liaqat (a close relative of their neighbour) started firing with his pistol. Despite warning by the complaint's father Muhammad Latif (P.W.4), the accused continued firing. It was finally alleged that the accused with intention to kill, fired a pistol shot at the complainant's younger brother Waheed Ahmed Kamal who was hit in the forehead and consequently died in the hospital as a result of the injury. On motive, the complainant claimed to have been informed of an alleged scuffle between the deceased and the accused few days earlier.
7. Prosecution examined 13 witnesses. The complainant and his father Muhammad Latif respectively appeared as P.W.3 and P.W.4 to support the prosecution story.
8. Dr. Farrukh Hussain Mirza DMS, DHQ, Hospital, Gujranwala, P.W.9 who medically examined the deceased when brought to the hospital in the injured condition. Dr. Farrukh Hussain Mirza. P.W.9 found the entry wound into the middle part of the forehead and the exit would in the middle back of the head with blackening or tattooing around the entry would No,1 and also stated that the fire could have been shot at the deceased from any distance of more than six feet or 50 to 60 feet or 2000 to 300 feet, depending upon the nature of missile or weapon.
' Dr. Rehmat Ali, P.W.8, performed the post-mortem and deposed that as both the wounds were stitched, therefore, he was unable to ascertain the exit or entry wounds. He also confirmed that he did not find any blackening, burning or tattooing. On the distance of fire his opinion was about 20 feet more or less. Pistol P.4 was recovered from the accused but no empty was recovered from the place of occurrence.
9. The respondent-accused stated in his statement under section 342, Cr.P.C. That many persons were firing in the air to celebrate the marriage and a stray pellet hit the deceased. And that a false case had been made out against him by the relative of the deceased.
10. The learned High Court as the Appellate Court re-examined and reappraised the entire evidence on record and observed in para 10 of the impugned judgment as under:-- "(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-i-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 even 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 more favourable to the complainant."
11. On the basis of above observations, learned High Court convicted the accused under section 319, P.P.C. For committing qatl-ikhata of Waheed Ahmed Kamal deceased and set aside conviction under section 302(b), P.P.C. Five years' R.I., being the maximum punishment under section 319, P.P.C, was awarded to the accused who had already undergone the same. Diyat of Rs,1,50,000 was ordered to be paid to the legal heirs of the deceased. This was made recoverable as arrears of land revenue and in default, accused was to suffer six months' R.I.
12. The main stand of the arguments of the learned Advocate Supreme Court for the appellant was that medical evidence proves a direct hit in the forehead of the deceased who was intentionally murdered by the accused person. Admitting that motive for such murder had not been successfully proved by the prosecution, the learned Advocate Supreme Court stated that presence, absence, adequacy or non-adequacy of motive becomes irrelevant where available evidence links the accused with the crime.
13. The evidence on record unarguably proved that unapprovable ugly act of firing in marriage processions was repeated in the present case as well. A bullet hit the deceased. No independent evidence existed to prove its source and precise projectile direction. Prosecution also failed to prove mens rea or enmity of accused to murder the deceased who like the accused was another participant in the marriage procession and they apparently were unknown to each other. As such the case was justifiably held to fall within the scope of section 318 of P.P.C. Which provided that "whoever, without any intention to cause the death of, or cause harm to a person, causes death of such person, either by mistake of act or by mistake of fact, is said to commit qatl-i-khata."
Illustration (b) of section 318, P.P.C. Also covered the case of a direct shot at an object to be a boar but it turned out to be a human being. The "act" being unintended. The submissions of the learned Advocate Supreme Court do not convince us to interfere in the impugned judgment except as modified hereunder.
14. The punishment for qatl-i-khata under section 319 is liability to pay Diyat and in addition to Diyat, imprisonment for five years as Tazir where committed by a rash or negligent act.
15. The learned Advocate Supreme Court for the appellant seriously objected to the imposition of six months' S.I. In default of payment of Diyat being contrary to the provisions of section 331, P.P.C.
On consideration of the provisions of section 331, P.P.C., we find imposition of six months' R.I. In default of Diyat payment contrary to the said provisions. Subsection 2 of section 331, P.P.C.
Prescribes the consequence of non-payment of Diyat that "where a convict fails to pay Diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the Diyat is paid in full or may be released on bail if he furnishes security (or surety) equivalent to the amount of Diyat to the satisfaction of the Court [or may be released on parole as may be prescribed in the rules]." As such High Court's order imposing six months' R.I. On non-payment of Diyat by the convict, is set arise.
Instead, the impugned judgment is modified by directing that on failure of convict to pay Diyat of Rs,1,50,000, the convict shall be confined in Jail as if sentenced to simple imprisonment until Diyat is paid in full. Non-bailable warrants shall thus issue for the convict who may be released on bail by the learned Sessions Judge concerned on furnishing of security equivalent to the amount of Diyat to the satisfaction of said Court.
16. In view thereof, we do not find any merit in both the appeals which are accordingly dismissed.