' Muhammad Arif, the appellant who was convicted under section 322, of the Pakistan Penal Code by the learned Sessions Judge, Jhelum, vide his judgment, dated 23-6-1994 and sentenced to Diyat amounting to Rs,1,70,610 payable in five instalments within a period of 25 months, has through this appeal, assailing his conviction and sentence.
2. Briefly, the facts giving rise to the appeal are that the appellant is an operator of the tubewell installed in the Officers Colony, Civil Lines, Jhelum. The said tubewell is fixed in a room and is 10 ft.Deep from the level of the ground. The door of the said room opens inside. On the 21st March, 1993, Nouman Qayyum, aged 2 years, son of Abdul Qayyum, Civil Judge, Jhelum, a resident of the Officers Colony, was playing near the house. The other family members were engaged in Iftari (It being month of Ramazan). After some time, the family found Nouman Qayyum missing. The room where the tubewell was installed was found locked and the appellant was not present in the Colony. The appellant was accordingly called from outside and when the lock of the room where tubewell was fixed opened in presence of Qazi Waqar Hussain, Civil Judge, and Asif Qureshi, Magistrate 1st Class, Jhelum, and other residents of the same Colony, the dead body of Nouman Qayyum was found floating on the water in the tubewell. Hence, on the report of Raja Abdul Qayyum, Civil Judge, a case under section 322, of the Pakistan Penal Code was registered against the appellant vide F.I.R. No,50 of 1993, dated 21-3-1993, and the appellant was accordingly charged thereunder.
3. In support of its case, the prosecution examined as many as six witnesses, including the complainant. Dr. Zamir Hussain, Medical Officer, District Headquarter Hospital, Jhelum (P.W.1), who had medically examined the dead body of Nouman Qayyum testified that there were no marks of violence on the dead body of the deceased who had died due to asphysia i.e,, on a result of drowning.
4. P.W.2 Muhammad Asif Qureshi, Magistrate 1st Class, gave details of the incident that in the Colony six houses were constructed for officers. The tubewell was at a distance of 10ft. From the back boundary wall of the house of Raja Abdul Qayyum, Civil Judge. A door was also affixed on the wall of the house of the complainant wherefrom the tubewell was at a distance of 20/25 ft. The appellant was an operator of the tubewell and used to be present at the site to keep watch on the operation of the tubewell. After switching off the tubewell it was the duty of the appellant to lock the door of the room where tubewell was installed. According to P.W.2, the door of the said room was so affixed that is someone opens it with some force, he was likely to fall into the well. He further deposed that on 21-3-1993 at the time of Iftar Nouman Qayyum son of the complainant was found missing. Every body was running here and there for search of the child. The room of the tubewell was found locked. The appellant was not present in the Colony. He was thereupon called at the spot as he resided outside the Colony in the house of District Food Controller, Jhelum. He could, however, be located at 8-45 p.m. The appellant stated that he had left the Colony after locking the door of the room where the tubewell was fixed, but when the door of the room was opened by P.W.2 in the presence of the complainant. Qazi Waqar Hussain, Civil Judge, Zamurrad Khan, Assistant Commissioner, Sohawa, Shaukat Ali Malik, Magistrate 1st Class, and Mr. Shabbir Hussain Chattha, the then Senior Civil Judge, Jhelum, they found in the torchlight the dead body of Nouman Qayyum floating in the tubewell. It appeared that Nouman Qayyum had died because of drowning. It was claimed by P.W.2 that operator had left the door of the room where tubewell was fixed opened and the same resulted into falling down of the deceased therein.
5. Tasawwar Hussain Shah, Head Constable (P.W.3), deposed about recording of F.I.R. Exh.PB/1 on the basis of complaint received by him. Qazi Waqar Hussain, Civil Judge, 1st Class, Gujjar Khan (P.W.4), who at the relevant time was posted as Civil Judge, Jhelum, also supported to the claim of P.W.2, Zulfiqar Ali Shah, S.I. (P.W.5) has investigated the case and prepared inquest report Exh.PC, got the dead body of Nouman Qayyum medically examined and also got prepared rough site plan Exh.PD showing the place of occurrence. He also arrested the accused on the 22nd March, 1993.
Raja Abdul Qayyum, the complainant, appeared as P.W.6 and reiterated his averments made in F.I.R. Exh.PB/1 recorded on the basis of his written complaint Exh.PB. The statement of the appellant was also recorded under section 342 of the Code of Criminal Procedure and denied that the door of the room in which tubewell was installed could be opened at any time. The case of the appellant is that at Iftar time he had gone out of the Colony to make certain purchases for the complainant but before leaving, he had switched off the tubewell and had duly bolted the room where it was installed.
6. The learned Sessions Judge, who tried the case came to the conclusion that the appellant was negligent whereby Master Nouman Qayyum met his death by drowning himself in the tubewell, being kept unattended by the appellant. Consequently, he convicted the appellant by his judgment, dated 23-6-1994 under section 322, P.P.C. And sentenced him to Diyat payable in five instalments in a period of twenty-five months.
7. Being aggrieved of his conviction and sentence the appellant has brought this appeal assailing the said judgment, dated 23-6-1994, claiming the same to be illegal and not maintainable in the eye of law. It was contended that the learned trial Court had not properly appreciated the evidence produced by the parties and that the appellant was the person of meagre means and thereby was not in a position to pay the amount of Diyat.
8. At the time of hearing of appeal, Ch. Abdul Rashid Gondal, Advocate, the learned counsel for the appellant, however, did not contest the conviction of the appellant and confined himself against the imposition of the sentence of Diyat. It was contended by he learned counsel that in the first instance, the appellant was a very poor person and was not in a position to pay the amount of Diyat to the heirs of the deceased. It was also contended that under section 323 of the Pakistan Penal Code, the Court is required to fix the amount of Diyat keeping in view the financial position of the convict and the heirs of the victim. In view thereof, it was claimed that the Court should have fixed the amount of Diyat keeping in view the financial status of the appellant who was a poor person and was not in a position to pay the same. It was further claimed that the complainant party should be asked to waive of the right to claim amount of Diyat. Upon this, the learned counsel representing the complainant, outrightly rejected the offer of the learned counsel for the appellant.
9. It is, however, clear from the provisions of subsection (1) of section 323 of the Pakistan Penal Code that under the said provision no reduction in the value of Diyat fixed therein can be made by the Court. For facility of reference section 323 ibid is reproduced below:-- "323.---(1) The Court shall, subject to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim fix the value of Diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver.
(2) For the purpose of subsection (1), the Federal Government shall, by notification in the official Gazette, declare the value of silver, on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year."
It would be clear, from the above that the Diyat is to be fixed in accordance with the Holy Qur'an and Sunnah and the same shall not be less than the value of thirty thousand six hundred and thirty grams of silver. Meaning thereby that the Court can, keeping in view the financial position of the csmvict and heirs of the victim enhance the amount of Diyat than the value of 30,630 ,grams of silver fixed under subsection (1) of section 323 (ibid), but cannot reduce the said value. This view further finds support from provisions of subsection (2) thereof, wherein, it is provided that the Federal Government shall, on the first day of July each year or on such day as it may deem fit, by a notification in the official Gazette, declare the value of Diyat. Pursuant to the said provision, the Federal Government does fix the value of 30,630 grams of silver each year which is to be considered as minimum amount of Diyat. Thus, the Court has the discretion to direct payment of Diyat more than the aforesaid value keeping in view the financial position of the accused and heirs of the victim but it cannot award Diyat less than the aforesaid value of silver.
10. Nevertheless, the value of Diyat fixed by the learned trial Court at Rs,1,70,610 is not the correct valuation of the amount of Diyat determined by the Federal Government for the year 1993. By Notification No,S.R.O. 549(I) of 1993, dated the 1st July, 1993, the value of thirty thousand six hundred and thirty grams (30,630 grams) of silver for the financial year 1993-94 for the purpose of subsection (1) of section 323, P.P.0 . Was fixed at Rs,1,42,322.29. Hence, the appellant will be liable to pay Rs,1,42,322.29 (One hundred forty-two thousand; three hundred twenty-two rupees and twenty-nine paisas) as the amount of Diyat and not Rs,1,70,610 as determined by the learned Sessions Judge. It may further be observed that as provided under section 331 of the Pakistan Penal Code, the amount of diyat is payable in lump sum or through instalments over a period of three years. The direction of payment of the amount of Diyat in 25 months in five instalments as contained in the impugned judgment is thus not strictly in accordance with law. Since the appeal is continuance of the original trial under the provisions of section 331 (ibid), it shall be payable within a period of three years from this date. The appellant may pay the same either in lump sum or in instalments. It was contended by the learned counsel for the appellant that, since the appellant was not in a position to pay the Diyat, the State should make payment in this behalf. For that purpose no direction of this Court is required. If the appellant so desires, he may apply to Bait-ul- Maal of Pakistan for the desired relief.
11. Although as stated above, the learned counsel for the appellant and the appellant who was present in the Court in person did not contest his conviction. But from the facts of the case it appears that the learned trial Court had not properly recorded the conviction under section 322, of the Pakistan Penal Code which deals with Qatl-bis-Sabab. Under that provision, whoever without any intention to cause the death of, or harm to, any person, does harm by any unlawful act which becomes cause for death of any person. In the instant case, the appellant had not done any unlawful act, but was negligent in his duty as he kept the door of the room where the tubewell was installed opened without proper watch. Such negligent act falls under section 318, of the Pakistan Penal Code being Qatl-e-Khata and is punishable under section 319, thereof.
12. In view of the above discussion, the conviction of the appellant is converted from section 322, P.P.C. Into one under section 319 of the Pakistan Penal Code. Similarly, the sentence of Diyat is reduced to Rs,1,42,322.29, being the amount payable in accordance with section 331 of the aforesaid Code within three years from today.
13. With the above modification in the conviction and sentence, the appeal is dismissed.