' ABDUR REHMAN KHAN, J.---Petitioner, calls in question, the correctness of the judgment of the learned Chief Justice, Peshawar High Court, dated 17-5-1999, whereby, his appeal was partially accepted in that his conviction under section 319, P.P.C. And sentence of payment of 'Diyat' amounting to Rs.2,40,000, were upheld but the sentence of imprisonment of two years as 'Tazir' was reduced to one years' R.I.
2. Saifur Khan P.W.12 lodged the F.I.R. In respect of the murder of his nephew Afzal Khan on 29-11- 1997 wherein he narrated the facts leading to the murder of Afzal Khan. It was stated in this report that he and Sajid (petitioner) were busy in gossiping in his "Baitak". Sajid had a loaded 30 bore pistol in his hand. In the meantime Afzal Khan deceased entered the "Baithak". Sajid stood to greet Afzal Khan and during that time the pistol in his hand suddenly went off which injured Afzal Khan who later on expired. Prosecution for conviction relied on:--
(i) Ocular account furnished by complainant P.W.12.
(ii) Recovery of empty shell from the spot, spent bullet from the dead body of the deceased, the pistol at the behest of the petitioner and the export report that empty shell and bullet matched with the pistol.
(iii) Confessional statement of the accused.
3. The learned counsel started criticising the conviction of the petitioner under section 319, P.P.C.
Stating that the case of the petitioner is not covered by the definition of "Qatl-i-Khata" as given under section 318, P.P.C. When his attention was drawn to the following observation of the learned Chief Justice "the conviction of the appellant was not assailed by the learned counsel for the appellant", then he was unable to controvert this observation.
4. However, he submitted that this is a legal point which can be urged at any time. We do not agree with this argument as it is apparent that the learned counsel in the High Court after considering the factual position of the case A conceded that the charge of "Qatl-i-Khata" stood proved against the petitioner, therefore, it cannot be argued now that the evidence on record falls short of proving the guilt. It will be placing premium on blowing hot and cold if such an argument is allowed. Even, otherwise, it stands established beyond doubt from the prosecution evidence and also from the statement of D.W.1 that the incident occurred in the manner as alleged by the prosecution and when this position is admitted then the case of the petitioner is covered by "Qatl-i-Khata" which is defined under section 318, P.P.C. And is punishable under section 319, P.P.C.
5. The petitioner should have known to carry a loaded pistol in his hand and particularly without any justification is dangerous and he should also have known to embrace a man with a loaded pistol can prove fatal. Therefore, during the process of embracing if by mistake of act or mistake of fact on his part the pistol went off then that would amount to "Qatl-i-Khata". Proviso to section 319, P.P.C. Reads as under:-- "Provided that, where 'Qatl-i-Khata' is committed by any rash or negligent act, other than rash or negligent driving, the offender may, in addition to Diyat, also be punished with imprisonment of either description for a term which may extend to five years as Tazir."
' It is thus clear that beside mistake of act or mistake of fact "Qatl-i-Khata" can be committed by rash or negligent act and the act of petitioner of roaming about with a loaded pistol and embracing the deceased in that position amounts to negligent act.
6. We, therefore, find no legal flaw in the impugned judgment rather we are of the view that the petitioner has been dealt with leniently in matter of sentence.
7. Leave is refused and petition is dismissed.