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Petition for Special Leave to Appeal No. 71‑P of 1971, decided on 13th December 1972.

(On appeal from the judgment of the Peshawar High Court, dated 22nd December 1.971, passed in Criminal Appeal No. 92 of 1971).

Penal Code (XLV of 1860),

Ss. 302, 301 & 300, Exception 4 Murder‑Accused intending to shoot M to death but hitting J and killing him‑Act of killing J‑Exactly same as if M were killed Accused premeditatedly and deliberately aiming gun at M, there being no sudden fight upon a sudden quarrel‑Affair, held, one sided and accused used deadly weapon fully knowing consequences of his act‑Petition for special leave to appeal dismissed.

M. Zahurul Haq, Advocate instructed by Nur Ahmad Khan, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 13th December 1972.

The petitioner, Shaukat Ali, was convict ed by the learned Additional Sessions Judge, Mardan, under section 302, P. P. C. and sentenced to undergo transportation for life and to pay a fine of Rs.2,000 for causing the death of one Janas Khan on the 1st of January 1970, in village Ismaila an Tehsil Swabi of the Mardan district. After having appealed unsuccessfully to the Peshawar High Court, he has now prayed for special leave to appeal mainly on the following grounds :‑

(a) that the case being one in which section 301, of the Pakistan Penal Code has been applied, the evidence should have been scrutinized with greater care and strictness for the reason that there was no intention on the part of the petitioner to cause the death of Janas Khan ; and

(b) that in any case the facts and circumstances attending the crime clearly brought the case within the ambit of Exception 4 to section 300 of the Pakistan Penal Code, but the Courts below have failed to give this benefit to the petitioner.

The relevant facts may briefly be stated. There was said to be enmity between the petitioner and his two brothers on the one side and P. W. Mehrdil and his brother Zian Dil on the other owing to dispute over some agricultural land. and there had been criminal litigation between the parties. On the 1st of January 1970, celebrations were going on at the Hujra of Mehrdil in connection with the marriage of his cousin Roidil. Mehrdil left the celebrations and went to an adjoining Jawar field for urination. When he was returning to the Hujra, he was followed by the deceased Janas Khan. The petitioner appeared on the scene, armed with a gun, and started abusing Mehrdil. The latter protested, whereupon the petitioner aimed his gun at Mehrdil and fired. Mehrdil ducked for safety and escaped unhurt but Janas Khan was hit.

The injured man was taken to the Hujra of Mohammad Sadiq L3mbardar at which A. S. I. Amin Shah happened to be present. The Police Officer recorded the dying declaration of Janas Khan at 3‑10 p.m. in the presence of Lambardars, Mohammad Sadiq and Minjawar Khan. The deceased gave a brief but precise account of the incident and also stated that he had no knowledge about the existence of any enmity between Shaukat Ali and Mehrdil. Janas Khan was sent to the Hospital at Kalu Khan, but he expired on the way.

The petitioner pleaded not guilty at the Vial but did not produce any defence evidence. The prosecution placed reliance on the ocular account furnished by Mehrdil and his father Farid, as well as on the dying declaration of the deceased. This evidence was believed by the trial Court, rejecting certain gratuitous admissions made by Lambardar Minjawar Khan in favour of the defence. The learned Additional Sessions Judge recorded a positive finding that the petitioner had intended to cause the death of Mehrdil but instead Janas Khan was hit and killed. The High Court hag endorsed these findings.

In the face of the evidence brought on the record there is no room for the argument that the guilt of the petitioner has not been fully brought home. There is also no warrant in law for the submission made on behalf of the petitioner that as the case is one involving application of section 301, P. P. C., the evidence is to be scrutinised more strictly or more carefully than would otherwise be the case. Irrespective of the application of one section or the other, the burden to prove its case rests squarely on the prosecution, and it has been fully discharged in this case.

From the proved facts no room is left for the argument that the case was one falling under Exception 4 to section 300 of the Pakistan Penal Code. This exception requires that culpable homicide should have been committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Now, in the instant case there was, on the one hand, premeditation on the part of the petitioner inasmuch as he deliberately aimed the gun at Mehrdil; and on the other, there was no sudden fight following upon a sudden quarrel. It was a one‑sided affair in which the petitioner used a deadly weapon fully knowing the consequences of his act, and thus intending its logical result. According to section 301 of the Pakistan Penal Code the act of killing Janas Khan would be of exactly the same description as if Mehrdh had been killed. There is no doubt that if Mehrdil had been killed the offence would have been one of deliberate murder punishable under section 302, P. P. C.

For the foregoing reasons, the petition fails and is hereby dismissed.

Petition dismissed.

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