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.
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