' KHALIL-UR-REHMAN RAMDAY, J.---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 the said Javaid accused started firing shots with his pistol as a mark of rejoicing; that the complainant's father asked the saidaccused 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 Baarat 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 a result 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 Qatal-e-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-noticed 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) of the 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 modification 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 Chambers 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 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-e- 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 C 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 month's 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.