' AMIR HANI MUSLIM, J.---Facts of the case are that the complainant-appellant Malu got registered an F.I.R. With Police Station Malgazar, District Jaffarabad stating that on 7-4-2008 he along with his brother Ahmed @ Pehar Din, Bakhsh Ali and Hassu after meeting their sister in the house of his uncle Khawand Bakhsh, were coming back to their house.. At about 12-30 p.m. When they reached near their house, Ali Bakhsh, Siddique, Sabir, Gulab and Mukham-ud-Din, duly armed with Kalashinkovs and shotguns fired at them with intention to kill them, due to which his brother Ahmed @ Pehar Din sustained bullet injuries, however, all of them remained safe while taking shelter behind the sand dunes. On intervening of womenfolk by holding Holy Quran, the above named accused person, while making firing went to their houses. The motive behind the occurrence was stated to be a dispute over demand of hand. The injured was taken to the police station and F.I.R.
No,3 of 2008 was registered under section 324 reach with sections 147, 148 and 149, P.P.C. The deceased succumbed to the injures on the way to BHU and section 302 was added in the F.I.R.
2. The investigation of the case was entrusted to Bashir Ahmed, S.I, P.W.5, who along with the complainant and other police officials visited the place of occurrence and prepared site plan, recorded statements of the P.Ws., secured blood-stained earth and recovered 16 empties from the place of occurrence through separate memos. He also sent the dead body of the deceased for postmortem examination and prepared the inquest report. On 8-4-2008, he arrested three accused persons and on the disclosure of appellant Ali Bakhsh recovered the crime weapon i,e, kalashnikov from his house.
3. The police challaned Ali Bakhsh, Sabir and Gulab Khan while co-accused Siddique and Mukham- ud-Din were declared proclaimed offendeRs, The trial Court framed the charge to Which the accused persons pleaded not guilty and claimed trial. After recording the prosecution evidence, the trial Court convicted appellant Ali Bakhsh under section 302(b) P,P.C. And sentenced him to death with direction to pay compensation of Rs,1,00,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default of payment of compensation to further undergo S.I for six months. Accused Sabir and Gulab Khan were convicted and sentenced under section 302(b), P.P.C.
To suffer life imprisonment and to pay compensation of Rs,1,00,000 each to the legal heirs of the deceased and in default to further suffer, S.I for six months. Appellant Ali Bakhsh and Sabir filed Criminal Appeal No,11 of 2009 and accused Gulab Khan filed Criminal Appeal No, 10 of 2009 against their convictions. The complainant filed Criminal Revision No,19 of 2009 for enhancement of sentence of accused Sabir and Gulab Khan. The trial Court sent Murder Reference No,2 of 2009 for confirmation or otherwise of death sentence awarded to the appellant Ali Bakhsh. The learned High Court, by the impugned judgment, converted the dead; sentence of the appellant All Bakhsh to life imprisonment while modifying his conviction from 302(b), P.P.C. To 316, P.P.C. And acquitted the co- accused Sabir and Gulab Khan of the charge. The criminal revision filed by the complainant was also dismissed and murder reference was answered in negative. Hence these appeals, by leave of the court: one by the complainant Malu for enhancement of quantum of sentence of Ali Bakhsh from life imprisonment to death and against acquittal of co-accused Sabir and Gulab Khan; the other by convict-Ali Bhaksh against his conviction and sentence.
4. The learned counsel for the appellant Ali Bakhsh in Criminal Appeal No,95 of 2005 has contended that the case of the appellant was that of acquittal and the learned High Court, by the impugned judgment, has wrongly convicted him under section 316, P.P.C. According to the learned Advocate Supreme Court, there were material contradictions in the testimony of both the eye-witnesses namely Malu and Bakhsh Ali. He next contented that the appellant along with other co-accused Sabir and Gulab Khan was arrested on 8-4-2008 and recovery of Kalashnikov was effected from his house. As per the Forensic Science Laboratory report. Nine out of sixteen empties recovered from the place of occurrence matched with the Kalashnikov recovered from the appellant, however, the prosecution has failed to account for the remaining 7 empties which did not match with the said Kalashnikov. He contended that the prosecution story is that the appellant, Sabir, Gulab, Siddique and Mokhum-ud-Din armed with Kalashnikovs and shotguns fired at Ahmed @ Pehar Din, who received only one bullet injury on his left thigh. He contended that the eye-witnesses neither before the police in their statements under section 161, Cr.P.C. Nor before the trial Court have specifically maintained in their testimony the different weapons carried by the accused. It has also not been proved at trial as to whose shot hit the deceased. He, therefore, submitted that the appellant deserves acquittal, particularly when specific role has not been assigned to the appellant by the complainant in his deposition. According to the learned Advocate Supreme Court Bakhsh All P.W.2 has made improvements contradictory to the testimony of P.W.1 Malu and his testimony ought to be discarded.
5. He next contended that even if the entire prosecution story is believed, the appellant did not have the intent to commit qatl-e-amd of the deceased, as the deceased received only one bullet injury and that, too, on his left thigh. He submitted that according to the medico legal report, the deceased died due to excessive bleeding as basic health unit was 50 to 60 kms. Away from the police station which by itself was sufficient ground for extending benefit of doubt to the appellant.
6. The learned counsel for the complainant-appellant, in Criminal Appeal No,94 of 2012, on the other hand lias contended that the appellant was named in the F.I.R. With specific role and on his arrest, recovery of kalashnikov was effected on his pointation from his house. Out of 16 empties recovered from the place of occurrence, 9 matched with the incriminating weapon. Both the eye- witnesses Malu P.W.1 and Bakhsh Ali P.W.2 have fully implicated the appellant with specific role. He submitted that omission on the part of Malu P. W.1 in regard to firing at the deceased by the appellant was further clarified by Bakhsh Ali P.W.2 in his testimony and such omission cannot be termed as contradiction nor it could be equated as an improvement. The testimony of Bakhsh Ali P.W.2, assigns specific role of firing to the convict-appellant. He, however, contended that the learned High Court fell in error by converting the conviction of the appellant from 302(b), P.P.C. To 316, P.P.C., by recording a finding that the appellant did not have intent to commit qatl-e-amd of the deceased instead of maintaining the judgment of trial Court against the appellant. He submitted that the learned High Court has misinterpreted the provisions of section 300, P.P.C.
Losing sight of language of 302, P.P.C. And the illustration provided under section 315, which provides not only the intent but it also speaks that if a person has the knowledge that his act can cause death could also be proceeded under section 302, P.P.C. For committing Qatl-e-amd.
7. The learned Additional Prosecutor General, Balochiitan, supported the impugned judgment.
8. We have heard the learned counsel for the parties, the learned Law Officer and have perused the record. Bakhsh Ali P.W.2 in his testimony has assigned to the appellant Ali Bakhsh specific role of firing with Kalashnikov at the deceased Ahmed @ Pehar Din, who received injury on his left thigh and died on his way to the basic health center. The police arrested the appellant Ali Bakhsh on 8- 4-2008 i,e, on the following day of the occurrence and at his pointation recovered A Kalashnikov from his house. The police has also recovered 16 empties from the place of occurrence and as per report of FSL, 9 empties matched with the crime weapon. The medical evidence is in conformity with the ocular evidence in as much as the complainant Malu P.W.1 has fully implicated the appellant whereas the deposition of P.W-2 Bakhsh Ali was more specific in regard to the role of the appellant Ali Bakhsh of firing from Kalashnikov at the deceased. The omission on the part of one of the eve-witnesses Malu to assign specific role of firing at the deceased would, in no way, cause any dent to the prosecution story as Bakhsh Ali A P. W.2, has assigned specific role of firing at the deceased to the appellant which injury is corroborated by the medical evidence. The omission of the nature on the part of Malu P. W.1, in no way, could be termed as contradiction in the ocular evidence to extend benefit of doubt to the appellant.
9. The learned High Court while converting the death sentence of the appellant to the life imprisonment has held that the appellant did not have the intent to commit qatl-e-amd of the deceased who received only one injury at his left thigh and as per medico legal report the deceased died because of excessive bleeding and, therefore, the case of the appellant falls under section 315, P.P.C. Punishable under section 316, P.P.C. We are not persuaded to accept this view of the learned High Court, as section 300, P.P.C. Is clear on this issue, which is reproduced for sake of convenience:-
300. Qatl-e-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-e-amd.
10. The above section categorizes offence of qatl-e-amd in three forms i,e, intention of causing death or intention of causing bodily injury by doing an act which in the ordinary course may cause death and or the knowledge that his act is so imminently dangerous that it must in all probability cause death. In the case in hand, the act of the appellant falls in the 3rd category of section 300, P.P.C. Where the appellant had the knowledge that by causing firearm injury of Kalashnikov on the deceased, in all probabilities, his act would cause his death. The learned High. Court while recording findings in the impugned judgment has held that since the appellant had hit the deceased on his left thigh and the deceased died due to profuse bleeding, therefore, the appellant was not guilty of Qatl-e-amd but was guilty of Qatl shibh-i-amd, defined under section 315, P.P.C., and while commuting, his sentence from death to life imprisonment convicted him under section 316, P.P.C. This finding is not only against the language of section 300 but is in deviation of the illustration to section 315, P.P.C. Which defines Qatl shibh-i-amd. The appellant had caused firearm injury with Kalashnikov, and, in law, is liable to be punished under section 302(b), P.P.C., for which he was awarded lawful sentence of life imprisonment by the learned High Court. We, therefore, are of the view that the sentence of life imprisonment awarded to the appellant was in accordance with law with the D modification that the appellant shall be deemed to have been convicted under section 302(b), P.P.C. We furthet award compensation of Rs,1,00,000 in terms of section 544-A, Cr.P.C. To the legal heirs of the deceased and in default of payment of compensation the appellant shall suffer S.I. For six months. The prosecution, however, has failed to bring on record confidence inspiring evidence against the accused Sabir and Gulab Khan and the learned High Court was justified in acquitting them. For the aforesaid reasons, we partly allow Criminal Appeal No,94 filed by Malu appellant in the above terms. The Criminal Appeal No,95 of 2012 filed by the appellant Ali Bakhsh against his conviction is dismissed.