324. Attempt to commit qatl-i-amd.--Whoever does
any act with such intention or knowledge, and under such circumstances, that,
if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be
punished with imprisonment of either description for a term which may extend to
ten years, [but shall not be less than five years, if the offence has been
committed in the name or on the pretext of honour], and shall also be liable to
fine, and, if hurt is caused to any person by such act, the offender shall [in
addition to the imprisonment and fine as aforesaid] be liable to the punishment
provided for the hurt caused:
Provided
that, where the punishment for the hurt is qisas which is not executable, the
offender shall be liable to arsh and may also be punished with imprisonment of
either description for a term which may extend to seven years.
COMMENTARY
1.
Scope. Ingredients. 1973 SCMR 108. Sudden quarrel followed by sudden fight. PLD
1963 S.C. 152 (p. 156). Counter case. 1979 SCMR 193. Injury in the abdomen by
knife. 1982 SCMR 1141. Injuries by lathis or by lethal weapons. 1982 SCMR 1113.
Parties on inimical terms. 1981 SCMR 1243. Motive-Weakness/absence of not
helpful if unimpeachable ocular evidence available. 1984 SCMR 540. Compromise.
1983 SCMR 519, 1976 SCMR 193. Affidavit-Importance. PLD 1987 Sh. C. (AJ&K)
39. Supreme Court cannot substitute its own appraisal. 1972 SCMR 401. Injury
caused by lathi. 1970 SCMR 667. Omission to frame charge. 1970 SCMR 450. Common
object. 1970 SCMR 525. Individual act PLD 1964 S.C. 177 (p. 184). Mens
rea-Existence or non-existence-crucial. PLD 1992 Pesh. 125. Offences under S.
337A (i), 337A(ii) not covered by the prohibition contained in S. 497 (i),
Cr.P.C. 1995 PSC 721. Recovery evidence is a corroborative piece of evidence
and if direct evidence is overwhelming and not discrepant and stems out of
unimpeachable source, non-production of weapon of offence would not be fatal to
the prosecution case. PLD 1996 Lah 126. Attempt. Two elements necessary. Mens
rea followed by an actus reus. Criminal intent not an attempt. PLD 1996 Lah
126. Provisions of Ss. 324, 337-F(ii) & 337-N(2), P.P.C. do not supplement
each other, rather they are at variance from each other. 1999 PCr.LJ 230. Even
high probabilities in the absence or legal evidence cannot be substituted for a
legal proof connecting nexus of the accused with the recovery of crime empties.
When ocular evidence is disbelieved, then abscondence cannot play any role in
the conviction of the accused. PLD 2004 Pesh 20.
2. Fire-arm injury. Fire-arm injury caused on
the right thigh of PW. Victim in serious shock and his blood-pressure was not
recordable. Injury Ghair-Jaiffah Munaqqillah punishable under S. 337-F(vi),
PPC. 2005 YLR 1799.
3. Abscondence. Abscondence at the most could be
taken as corroboration of the charge and not the evidence of the charge and in
absence of any other corroborative evidence, that evidence, even if found
convincing, would not be sufficient by itself to warrant conviction of accused.
2005 YLR 465.
4. Bail. Contention that matter was reported to
Police almost after one month of the occurrence. On the next day of occurrence
injured PW was produced before M.O. by Police. If the case was registered by
Police after said delay the burden heavily lay on shoulders of Police officials
and not against complainant of case. There was specific allegation against
petition of causing fire-arm injuries. Bail after arrest refused. 2006 P.Cr.R.
213. Sessions Court had released the accused on bail only on the grounds that
the trial Court had not concluded the trial within the period specified by it.
Record had revealed that both the parties had contributed in delay in disposal
of the case. Bail under S. 497, Cr.P.C. could only be granted to accused by the
Court after recording a definite finding that of reasonable grounds existed to
believe his involvement in the case and that further inquiry was needed
therein. Accused was nominated in the F.I.R. with a specific role of firing and
causing eight fire-arm injuries to the victim. Offence under S. 324, P.P.C. was
hit by the prohibitory clause of S. 497(1), Cr.P.C. Order granting bail to
accused, thus, was illegal and without jurisdiction the same was recalled
accordingly. 2004 PCr.LJ (Lah) 1166 (b).
5. Appreciation of evidence. Close relationship
has been admitted by witnesses and independent evidence is lacking which is a
must in view of enmity over matrimonial issue. Firing has taken place but no
empty has been recovered from place of wardat, there is no recovery of gun even
there is no mashirnama of recovery. Statements under Section 161 Cr.P.C. of
witnesses have been recorded after 7 days which goes unexplained by
prosecution. There is a violation of Section 265(J) Cr.P.C. as notice has not
been served upon appellants before recording statements of witnesses under
Section 164 Cr.P.C. Self-defence can be gauged from record and material
available on record. Injured has sustained only one injury as per medical
certificate although there were four accused who were duly armed and they could
have killed injured but only injured sustained one injury and in these
circumstances benefit of doubt goes to appellants. Evidence of prosecution is
contradictory and no property has been produced in Court nor shown to injured
nor exhibited. Prosecution has miserably failed to prove its case beyond
reasonable doubt against appellants. PLJ 2001 Cr.C. (Karachi) 819.
Evidence
of Doctor has not supported statement of injured/Complainant and another
injured with regard to injuries sustained by them. Investigating Officer has
become party himself in matter who is dishonest police officer. Neither blood
stained earth has been secured from place of wardat nor other articles as being
claimed by prosecution. Injured have gone on foot to Police Station and there
was trail of blood right from place of wardat to Police Station but nothing is
mentioned in mashirnama of wardat; nor Investigating Officer has deposed in
this regard. Evidence of injured witness is not inspiring confidence; and his
evidence has not been considered by learned trial Court which leads to
inference that incident has taken place at different place and evidence of
witness is full of material contradictions. No independent witness has been
examined by police. Even after incident, so many witnesses have attracted and
came at place of wardat but investigating Officer has failed to examine them on
factum of incident, who could have narrated before trial Court that incident
had taken place at place being claimed by prosecution but in instant case no
efforts have been taken by police for an independent witness on factum of
incident. Prosecution miserably failed to make out its case beyond reasonable
doubt. PLJ 2001 Cr.C. (Karachi) 774.
FIR
was lodged very promptly. Role attributed to respondent as well as presence of
PWs, who apprehended respondent at spot, is mentioned therein. Site plan
prepared by police also supports case of prosecution, because police secured
blood from place of occurrence. PWs had also given cogent reasons for their
presence at place of occurrence. They are quite independent and natural
witnesses. Counsel for respondent has totally failed to prove on record any
bias, grudge or enmity on part of complainant as well as PWs., and their
evidence was not shaken. Appeal accepted and respondent convicted. PLJ 2002 SC
586 = 2002 SCMR 492.
Prosecution
version was cent per cent corroborated of arms and ammunitions from their
possession. Recovery witnesses fully supported recoveries. Police party did not
have slightest reason to rope appellants falsely. Non-production of any public
witness in a case of this nature cannot be considered fatal to prosecution
case. Prosecution witnesses established charges against appellants in their
entirety. Defence witnesses' statements were absurd, vague and meaningless.
Appeals dismissed with modifications, one appellant was acquitted as nothing
was recovered from him nor he played any role on the firing on police party.
PLJ 2002 Cr.C. (Lahore) 486.
Appellant
with co-accused refused to stop car. He was chased and after firing was
apprehended. He was attributed only ineffective firing. Complainant/SHO has not
stated any thing about crime empties although other recovery witness has stated
that three crime empties were recovered from the spot. There is conflict
between statement of complainant and PWs. Trial Court acquitted appellant u/S.
13/20/65 of Pakistan Arms Ordinance, 1965. There are so many doubts; benefit
goes to accused as a right. Appeal allowed. PLJ 2002 Cr.C. (Lahore) 1106.
There
is no question of substitution or false implication of respondent. Two real
brothers complainant injured PW and other real brother have been produced but
they cannot be termed as interested witnesses because definition of interested
witness is that he is not only related to complainant or deceased but he should
also be inimical towards accused person which fact is not present. There was
not an iota of evidence on record that present appellant had any ill-will or
hostility against respondent/accused. Recovery of weapon was also effected but
no crime empty was recovered from the spot. According to report of Fire-arm
Expert which is on judicial record, weapon got recovered from respondent was in
working condition. Ocular account is fully corroborated with medical evidence.
Prosecution has proved its case against respondent to its hilt and beyond any
shadow of doubt. PLJ 2003 Cr.C. (Lahore) 164.
Recovery
of detenu by bailiff by conducting raid in company of police. Resistance by
inmates of house. Launching of attack by appellants and their co-accused.
Conviction and sentence. Application of S. 7(h) of Anti-Terrorism Act. It is
correct that occurrence took place at spur of moment when resistance was shown
by inmates of house at time of recovery of detenu. She has also not supported
version of prosecution to the extent that she was recovered by bailiff from
inside house. Appellants alongwith their co-accused launched attack at Police
party and bailiff who was representative of Court. There was no intention to
commit murder. Recovery of detenue was to be effected from house of her
parents, therefore, possibility of resentment or resistance cannot be ruled
out. No scheduled offence was committed by accused. Prosecution case has been
proved against all appellants beyond any shadow of doubt. Conviction maintained
and sentence reduced. PLJ 2003 Cr.C. (Lahore) 580.
Solitary
statement of complainant in absence of corroborative evidence has rightly been
discarded and excluded out of consideration by trial Court. Judgement of
acquittal is balanced and well-reasoned. After acquittal, accused enjoys double
presumptions of being innocent as first presumption is awarded to him by law of
the land while second presumption is created by impugned judgment of acquittal.
Judgement of acquittal was thus, maintained. PLJ 2005 Cr.C. (Peshawar) 988.
Statement
of complainant was supported by other eye witness whose evidence was confidence
inspiring and his slight contradiction with complainant that some of accused
were making aerial firing would not be taken so serious as to discard his whole
statement. Direct charge against appellants, reliable eye-witnesses account,
recovery of blood stained earth from spot, blood stained clothes of deceased
and injured, site-plan, motive behind occurrence, would prove without any
shadow of doubt that prosecution has successfully proved its case against
appellants. Quantum of sentence awarded to appellants was however, reduced as
also the fine. PLJ 2005 Cr.C. (Peshawar) 438.
Aggrieved
by the granting of post arrest bail to respondent/accused, petitioner had
recourses to criminal petition for leave to appeal in Supreme Court. Held: Bail
had been granted inter alia being a cross-version case. It was for the trial
Court to determine as to which side was aggressor. Leave to appeal declined.
2005 PSC (Crl.) 109.
Complainant
had admitted that he was fired at from behind and had not seen appellant firing
at him. Such aspect of case escaped notice of trial Court. Prosecution version
suffers from taint of exaggeration. Delay in lodging F.I.R. remained
un-explained. Possibility of consultation and deliberation cannot be excluded
in circumstances of case. Occurrence had taken place at broad day light in
thickly populated area but no independent and disinterested witness from
locality has been produced in support of prosecution story. Cousin of
complainant having joined complainant party at crucial time was not produced
nor he was cited as witness. Best piece of evidence being available to
prosecution withholding of the same would raise presumption that had he been
examined in case, he would not have supported prosecution case. Injuries on
person of appellant were not explained which fact would indicate that version
of defence that in exchange of fire between complainant and his estranged
brother, he suffered injuries. Motive is also too weak and flimsy. Case of
prosecution highly doubtful. Appellant was thus acquitted of the charge against
him. PLJ 2005 Cr.C. (Peshawar) 1074.
Ocular
account is cooborated by medical evidence. Distinguishable law. Evidence of
witnesses if it was supported by the medical evidence then that is sufficient
to base conviction. High Court is of the considered view that the prosecution
has proved its case against accused to the hilt and First Appellate Court has
wrongly acquitted accused after having based his judgment on surmises and
conjectures. PLJ 2008 Cr.C. (Lahore) 255.
Criminal
appeal in High Court against impugned conviction and sentence of death in the
said case of murder. Validity. Statedly deceased was not a Masoom-ud-Dam and
was involved in several criminal cases. Impugned death sentence reduced to
life. 2006 P.Cr.R. 225.
Criminal
petition for leave to appeal in Supreme Court against impugned order whereby
order of trial Court was set aside with abduction to proceed with the complaint
proceedings against petitioner. Validity. Question of guilt or innocence of
petitioner could not be determined by Supreme Court which could only be decided
on basis of the evidence which was yet to be recorded by trial Court. A prima
facie case, however, was made out on the basis of inquiry report. Question of
genuineness of alleged counter could not be determined in the instant petition.
Leave to appeal declined. 2006 PSC Crl. (SC Pak) 36.
Ocular
testimony was corroborated by the evidence of recovery of the robbed property
from the possession of accused. Post-mortem examination of both the deceased
having not been conducted, it could not be proved that the injuries sustained
by them during the occurrence had ultimately caused their death, but it was
certain that injuries caused by the accused to the deceased persons and to the
eye-witnesses were grievous in nature. 2006 PCr.LJ 329(a).
Incriminating
statements of prosecution witnesses and positive report of Fire-Arms Expert was
enough to connect accused with commission of crime. Defence could not prove as
to why police would involve accused falsely, specially when none of police
party had any enmity against him. Prosecution witnesses, who were police officials,
had made statements on material points and accused had failed to point out any
discrepancy in their statements. 2006 P.Cr.R.L.J. 53.
6.
Violation of S. 103, Cr.P.C. Place of occurrence surrounded by inhabitants, but
no one from private persons was associated to witness the arrest of accused or
the recovery of crime weapon. Neither any encounter proved nor there was any
evidence to show that an attempt was made on the police party to commit murder.
Conviction not sustainable merely on the basis of surmises. 2005 MLD 345.
7.
S. 324/34. Offence under S. 324/34 falls under prohibitory clause of S. 497(1)
where the accused had taken active part in occurrence. NLR 1998 SD 32. Bail
cannot be claimed on account that injury was caused on ankle being not a vital
part. NLR 1999 Cr. Lah. 9. Number of accused persons being four, each accused
liable to payment, of one fourth of half of diyat amount as arsh-to
victim/complainant. 2003 PCr.LJ 1695.
8.
Revision against acquittal. Order passed by Special Court not amenable to
revisional jurisdiction of High Court. Provision of. S. 561-A can be invoked in
the interest of justice. 2000 PCr.LJ 216. Right of appeal given u/S. 417(2-A),
Cr.P.C. cannot be extended to private person in cases decided by the Special
Court regarding a scheduled offence. 2000 PCr.LJ 216.
Accused
was not nominated in the FIR despite the fact that parties were known to each
other. Prosecution case doubtful. Accused acquitted. PLD 2006 SC 288.
Due
to a number of discrepancies appearing in the prosecution evidence, accused
were acquitted. 2006 PCr.LJ 1185.
Prosecution
failed to prove fact of causing injury to injured witness. Appeal allowed by
giving benefit of doubt to accused. 2006 YLR 3194.
9.
Judicial notice. Trial Court should also have convicted the accused u/S. 324 of
PPC because it was an attempt to qatl-e-amd on the part of the accused and S.
324 of PPC is a mandatory provision of law. If charge was not framed in the
case u/S. 324 of PPC but facts and circumstances of the case transpire that the
provision of law was fully attracted, so, judicial notice was being taken in
such regard. PLJ 2008 Cr.C. (Lahore) 274.
10.
Appreciation of evidence. Injured PW who was allegedly fired upon by the
accused, was not produced by the prosecution in the witness-box. Accused was
given benefit of doubt and acquitted of the charge in circumstances. PLJ 2007
Cr.C. (Lahore) 819.
11.
Malafide. Co-accused was distinguishable to be equipped with fire-arm and
caused injury on the leg of complainant supported by medical evidence, hence
his involvement in case for time being could not be considered as one tainted
with malafide. Co-accused was not entitled to concession of pre-arrest bail.
PLJ 2007 Cr.C. (Lahore) 100.
12.
Concept of punishment. Sending accused on probation. Medical Officer had fully
supported prosecution case and corroborated evidence of witnesses under which
accused had been assigned various specific roles of causing injuries to the
witnesses. Counsel for accused could not point out any discrepancy in the oral
evidence. Parties who were related to each other were residing within same
compound and incident had taken place on a very minor affair and in a heat of
passion and temper. No reason existed that prosecution witnesses had falsely
involved accused in the case. Ocular testimony was confidence inspiring. Steps
in circumstances, were to be taken towards the reformation of accused. One of
the concepts of punishment was also reformation and in view of said basic
principle of punishment, Probation of Offenders Ordinance, 1960 had been
promulgated by which benefit of probation could be extended to the offenders.
Key note of Probation of Offenders Ordinance, 1960 was reformation and
rehabilitation. Offences in the present case, for which accused had been
convicted did not come within the debaring provisions of S. 5 of Probation of
Offenders Ordinance, 1960. In view of present conditions of jail where
offenders instead of reforming themselves, come out as hardened criminals. Accused,
could be sent on probation so that they could reform themselves while remaining
within the society; it was thus expedient in the interest of justice that while
maintaining conviction and sentence, instead of sending accused at once to jail
a probation order be passed. PLJ 2007 Cr.C. (Karachi) 286.
In
compoundable offences, the compromise can be effected with the victims/heirs of
the deceased at any stage with the permission of the Court. Trial Court seems
to have disallowed compromise while considering that it was a police encounter
case. Offence u/S. 324 PPC with which the petitioners were convicted and
sentenced has been made compoundable by the legislature and the injured PWs
were very much competent to compound the same. Charge of assaulting upon the
police force to deter them from discharge of their duties, the petitioners were
separately convicted and sentenced u/S. 353 PPC. PLJ 2007 Lahore 513 (DB).
PW
having a bad character and involved in many criminal cases. Evidence furnished
by a person of such like character, cannot be accepted in case of capital punishment. Prosecution had
failed to prove its case against the appellants beyond any shadow of doubts and
on the basis of such a shaky evidence. Conviction and sentence awarded to
accused could not be maintained because the same had not come through an
unimpeachable sources, was untrustworthy, unreliable and could not stand the
test of judicial scrutiny. PLJ 2007 Cr.C. (Lahore) 1116.
