' ABDUL QADIR MENGAL, J.---This criminal jail appeal is arising out from the judgment dated 5th November, 2010, passed by the learned Sessions Judge, Khuzdar, in case F.I.R. No,54 of 2010, for offences under sections 302, 34, P.P.C., whereby the appellant was convicted and sentenced under section 302(b), P.P.C. For life imprisonment and also to pay fine of Rs,50,000 (fifty thousand), in default of fine, to further suffer SI for 6 (six) months. The benefit of section 382-B, Cr.P.C. Has been extended in favour of the appellant/convict.
2. The facts of the case according to the F.I.R. Are that on 4th April, 2010, at about 5-00 p.m., Chaudhri Anwar Masih lodged report with Police Station Khuzdar, stating therein that his son Samoil Anwar, who had gone to the Church for prayer, where Arshad Masih, Ghulam Mustafa son of Sadiq Masih and Ishaq Masih alias Tarra badly gave him beatings, whereafter, inflicted him a flower pot (), due to that his condition became worst, as such, he was shifted to hospital for treatment. He requested for taking necessary action against the culprits.
3. The case was registered under section 337-ADF read with section 34, P.P.C., however, later on, the condition of the Samoil became worst and in result of the head injury he died at hospital; as such, the section 337-ADF/34, P.P.C. Was converted into sections 302/34, P.P.C. And on completion of the investigation, matter was challaned before the court of Sessions Judge, Khuzdar for trial. On conclusion of the trial, the impugned judgment.
4. Mr. Ali Hassan Bugti, Advocate is present for appellant, while Mr. Abdul Sattar Khan Durrani Additional Prosecutor-General, present for the State.
5. Learned counsel for the appellant mainly contended that the appellant is innocent and he falsely has been implicated in the present matter. Learned counsel further argued that the case record shows that at the time of prayer most of the members of the congregation were drunk, as such, there, at sudden some irresponsible youth created disturbance, whereupon, a scuffle was started, as such, there is a no specific evidence that present appellant hit, flower pot {{URDU TEXT}}Gr) to the deceased, nor there is any intention behind the commission of the offence, therefore, the conviction and sentence passed by the learned Sessions Judge, Khuzdar, under section 302(b), P.P.C. Is not tenable and the appellant is liable to be acquitted of the charge.
6. Mr. Abdul Sattar Khan Durrani, learned Additional Prosecutor-General, opposed the contention of the learned counsel. For the appellant, stating that learned Sessions Judge rightly has evaluated the evidence and passed a sound and legal judgment, which requires interference. There is a no merit in the present appeal, as such, the same is liable to be dismissed.
7. After hearing the both sides, we have perused the record of the case. No doubt, circumstances of the case shows that appellant along with acquitted accused Ghulam Mustafa and absconding accused Ishaq Masih alias Tarra were present in the Church for offering prayers, where the appellant and deceased entered into a quarrel, which resulted into the present incident.
8. The facts show that there was no prior intention from the side of the appellant or the, acquitted accused to kill the deceased Samoil, because, if the appellant and acquitted accused would have any such intention then they naturally would not quarrel or attack upon the deceased in presence of a big gathering or congregation, as this fact is evident from the judgment of the trial Court, which reads as follow:- "There is 'nothing in the evidence of P. Ws. That accused with intention to commit the murder of the deceased had attacked him. Therefore, the offence committed by the accused Arshad Masih falls under section 302(b), P.P.C. So accused Arshad Masih son of Sadiq Masih, caste Christian is convicted under section 302(b)/34, P.P.C."
9. So being we see that in the heat of passion, appellant took a , flower pot (tyr){{URDU TEXT}} and hit the same to the deceased, due to which he later on succumbed to the injury and died. Though the P.Ws. In their court statements have made improvements by stating that the accused came with lathies and started beating to the deceased, however, the whole prosecution case and papers show that the P.Ws. Prior to the court statements, nowhere have mentioned that accused had come with lathies and inflicted injuries to the deceased. The evidence of the P.Ws. Anwar Masih; Tariq Masih and Sadiq Masih are corroboratory and consonance on this fact that during the fighting present appellant Arshad Masih at sudden took a flower pot and hit the same to deceased, due to that he lost his conscious and later on he died and this fact also has been rightly discussed or evaluate by the learned- Sessions Judge, Khuzdar in the impugned judgment. But despite of above fact, amazingly he then convicted and sentenced the appellant under section 302(b), P.P.C.
For Qatl-e-amd, which is contrary to law and facts of the case. As such, we are of the view that since the finding of trial court qua the intention of appellant have not bean - challenged by the State or complainant, therefore, in such circumstances inevitably the provisions of section 315, P.P.C. Come into picture and sentence is required to be awarded under section 316, P.P.C. The section 315, P.P.C. Qatl-e-Shibhi-Amd, punishable under section 316, P.P.C., reads as under:-- "315. Qatl Shibh-i-amd.---Whoever, with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd."
10. Thus, the conviction and sentence, passed by the Sessions Judge; Khuzdar under section 302(b), P.P.C. Is set aside and the appellant is convicted and sentenced under section 316, P.P.C. For Qatl-e- Shibh-iamd for 10 years' R.I. Along with Diyat amount to the legal heirs of the deceased. The benefit of Section 382-B, Cr.P.C. Is extended in favour of the appellant and the appellant shall be kept in jail, till the payment of Diyat amount.
' With the above observations, the instant appeal stands disposed of.