' This judgment will dispose of Criminal Appeal No,957 of 2002 filed by Khalid Mehmood, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Choonian vide his judgment dated 28-1-2002 directing appellant to make payment of Diyat for a sum of Rs,3,00,000 (Rs, three lacs) to the legal heirs of the deceased.
2. Brief facts of the case as disclosed by Muhammad Ramzan complainant are that on 24-7-1999 it was the marriage ceremony of Ghaffar son of Khushi Muhammad, the complainant, his son Iftikhar, Khushi Muhammad and Liaqat Ali went to Mauza Kaurey Sial with the marriage party. At about 4- 00 p.m when the marriage party was to return back home, the accused Khalid Mehmood with a .12 bore gun, Munir Ahmad with a rifle and Abdul Qadir empty-handed came there. Abdul Qadir shouted to catch hold of the complainant's son Iftikhar (aged 12/14 years) and kill him to make his taste of altercation. On this the accused Munir Ahmad caught hold of him from his arms while Khalid Mehmood fired a shot from his gun .12 bore, hitting his right thigh. The injured Iftikhar fell down on the ground whereafter, all the accused fled away.
3. During the investigation, 4th accused Karamat Ali was also implicated. The accused Abdul Qadir and Munir Ahmad found innocent while the other two accused namely Khalid Mehmood and Karamat Ali were sent up for their trial. The accused Khalid Mehmood was found innocent during the investigation, but placed in Column No,2 of the police report while the accused Karamat Ali, who was not named originally in the F.I.R. Was however, recommended for his trial, because he had allegedly fired the shot with the gun .12 bore hitting the injured Iftikhar who succumbed to the injury, subsequently, when the offence was changed to section 302, P.P.C., under which he was to be tried.
The said gun was also recovered from the accused Karamat Ali. The accused Khalid Mehmood was thus left at the mercy of the Court. The final police report was thus prepared, accordingly on 9-10- 1999 by S.-I./S.H.O.
4. At the trial, prosecution in order to prove its case produced seven witnesses in all, thereafter, the statement of the appellant under section 342, Cr.P.C. Was recorded in which he pleaded innocence.
5. In support of this appeal, learned counsel for the appellant submits that appellant has been falsely implicated, that occurrence had taken place on 24-7-1999, three accused were named in the F.I.R., then, the complaint was filed on 24-1-2000 in which four accused persons were named, that three accused have been acquitted by the leaned trial Court while the present appellant was convicted by the learned trial Court, that no recovery of weapon of offence was effected from him, that in fact it was not clear that whose fire hit the deceased and that eye-witnesses were not present at the spot.
6. On the other hand, learned counsel for the State submits that not a single witness was produced by the appellant to prove his defence version that learned trial Court has not awarded the sentence in accordance with law.
7. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, the story of the prosecution was that the complainant alongwith his sons and others were coming after the marriage ceremony when the appellant and his co-accused met in the way. One of the accused Munir held the deceased from his arms while Abdul Qadir who was empty-handed raised Lalkara and appellant fired a shot, which resulted into death of the deceased. The version of the appellant under section 342, Cr.P.C.
Was that the deceased died due to the firing in the marriage ceremony but he failed to produce single witness in this regard. Learned State Counsel was right in submitting that not a single witness was produced by the appellant to prove his version before the trial Court. I am unable to understand that from where the learned trial Court has drawn the conclusion that it was a case of Qatl-i-Khata. Unfortunately, neither the State nor the complainant has filed any criminal appeal against the acquittal of the appellant under section 302(b) P.P.C.
8. After having heard the learned counsel for the parties and going through the record I am of the considered opinion, that occurrence had taken place at 4-00 p.m. So it was a broad-daylight occurrence having taken place in the month of July, 1999, it was the appellant who had fired at the deceased, even in the complaint case the complainant stuck to his version. As far as, appellant is concerned, ocular account is corroborated by medical evidence, there was no previous background of enmity between the parties, so there was no question of false implication of the appellant in this case.
9. The learned trial Court did not give any cogent reasons for converting the offence from section 302(b), P.P.C. To section 319, P.P.C. Because it is a settled law that when an accused persons takes the specific plea, then, onus lies on him to prove the same and that has also been mentioned under Article 121 of the Qanun-e-Shahadat Order, 1984, therefore, the appeal filed by the appellant is dismissed. It has been mentioned in the impugned judgment by the learned trial Court after convicting the appellant that he is on bail, he will however, be arrested and kept in judicial lock-up till he furnishes a security bond to pay the said Diyat in three equal yearly instalments as mentioned in section 331, P.P.C., later on appellant filed the bail bond and now he is on bail. He is directed to pay the Diyat amount which in fact was Rs,2,70,493.50 in the year 1999. He is directed to pay the said Diyat amount in 36 instalments to the legal heirs of the deceased, as has been held in section 331, P.P.C. The first instalment shall be paid by the appellant to the learned trial Court within one month from today i,e, on, 15-12-2003 who will further hand over the same to the legal heirs of the deceased. In case he fails to pay any instalment, then, he shall be taken into custody and shall be kept in jail till he pays the same.
' Copy of this judgment shall be sent to the learned trial Court through Registrar to explain as to what was the evidence available on record on the basis of which he convicted and sentenced the accused-appellant under section 319, FTC. Instead of 302(b), P.P.C. Because neither the appellant in his defence led any evidence by producing a single witness nor any witness was summoned by the learned trial Court as C.W. In this regard. Even the learned trial Court himself at page 8 of the impugned judgment had held that it cannot however, be said that the complainant and the eye- witnesses were not even present in the said marriage. It is stated by the accused in the statement under section 342, Cr.P.C. Also that it was an accidental death, due to fire shot. He further stated that there is no evidence whatsoever on record to suggest that anybody else except Khalid Mehmood was seen with a gun 12 bore, which caused the injury resulting in the ultimate death of the deceased. He also held that F.I.R. Was lodged promptly". A Judicial Officer dealing with lives and liberty of citizens is not expected to conduct himself in such a manner. To say the least, the learned Additional Sessions Judge, who had passed the impugned judgment either negligently or due to lack of knowledge convicted and sentenced the accused-appellant under section 319, P.P.C. Future course of action shall be taken after the receipt of report, which shall reach this Court within one month from today.