The applicant Qurban Ali was convicted of an offence punishable under section 304-A, P.P.C. And sentenced to suffer rigorous imprisonment 'for two years and also pay fine Rs. 1,000 or suffer rigorous imprisonment for 6 months more in default, by the learned Civil Judge and F.C.M., Garhi Yasin by judgment, dated 14th December. 1980 in Criminal Case No. 82 of 1976. His appeal in the Session Court, Shikarpur was dismissed by an Additional Sessions Judge by judgment, dated 30th May, 1981 in Criminal Appeal No. 38 of 1980. He has preferred this revision application against his conviction and sentence awarded on him for an incident of homicidal death of his were Mst.
Khurshid Begum at his hands, at his house in village Bego Jakhro, Taluka Garhi Yasin, District Shikarpur on 28th September, 1976, at about 5-30 p.m.
The report of the incident was made by the appellant himself at Police Station Gaheja on the same day at about 7-00 p.m., stating that he was sitting in his house alongwith his relations, Qalandar Bux, Sharaf Din and Sadaruddin when a rabid dog suddenly entered his house and he took out a licensed gun of his father and fired a shot from it at the dog but the shot hit his were Mst. Khurshid Begum, who suddenly came out from the cattle pen. He further stated that his father-in-law Shamsuddin and other neighbourer Khuda Bux and Murad Jakhro went there and he apprised him of the incident. Police registered the crime in respect of commission of an offence punishable under section 304-A, P.P.C, and took up investigation. The victim Mst. Khurshid Begum was referred to R.B.U.T. Hospital, Shikarpur and was examined there by Medical Officer Doctor Mehboob Ali. He found on her four injuries, three of them caused by means of a fire-arm and the 4th one caused by means of a blunt weapon. She remained under treatment but could not survive and she died on 18-10-1976. Autopsy on her dead body was conducted by Doctor Shamsuddin, a Medical Officer, Chandka Medical College Hospital, Larkana. He opined that the deceased had died due to shock and bleeding caused by the injuries sustained by her. The applicant was initially challaned in the Court of Civil Judge and F.C.M., Garhi Yasin to stand trial for having committed an offence punishable under section 338, P.P.C. After the death of the victim lady, the nature of the offence stood changed to that under section 304-A, P.P.C.
2. The applicant was tried on the charge of the offence punishable under section 304-A, P.P.C. The prosecution examined the trial the eye-witnesses Kalandar Bux (Exh. 4) and Sharafuddin (Exh. 7), and the deceased's father Shamsuddin (Exh. 12). The dying declaration of the deceased recorded by a Second Class Magistrate, Larkana, Mr. Bashir Ahmed Junejo was put in evidence as Exh. 17/A.
The Magistrate was examined as a prosecution witness Exh.
17. Besides, the prosecution also examined Mashirs Allahando (Exh.5) and Ghulam Mustafa (Exh. 9), the Medical Officers Doctor Shamsuddin (Exh. 11) and Dr. Mehboob Ali (Exh. 13) and the Investigating Officer Pir Bux A.S.-I. (Exh.
10), Abdul Ghani S.H.O. (Exh.4) and Muhammad Yaqoob H.C. (Exh. 16). The applicant made in Court the same statement which he had made to the police station while reporting the incident that the deceased was shot from a gunshot he had fired at a rabid dog. The learned trial Magistrate held the applicant guilty of rash and negligent act of firing at a rabid dog and convicted him of the offence punishable under section 304-A, P.P.C. And awarded on him the aforesaid sentence. The learned Additional Sessions Judge, Shikarpur concurred with the finding of the learned trial Court and upheld the conviction and sentence recorded against the appellant.
3. There is no dispute that the deceased Mst. Khurshid Begum died as a result of fire-arm injuries she sustained from a gunshot fired by the applicant. It is also not disputed that the applicant had fired the gunshot at a rabid dog having entered his house and the shot accidentally hit the deceased. The learned Courts below also have held so. But they have adopted the view that had the applicant exercise due care and caution before firing at the rabid dog, he could have averted the incident of the shot hitting his were and, therefore, has been held guilty of causing death of his were by doing a rash are negligent act. The learned appellate Court Judge has placed reliance, in holding so; on the cases reported in PLD 1959 Lah. 855; PLD; 1952 Lah. 89; PLD 1962 Lah. 267; P. L D 1963 Dacca 655; PLD 1969 Lah. 65; PLD 1957 Dacca 181; PLD 1962 Kar. 77 and commentary of Mr. Ilyas Khan, Advocate, on rash and negligent act in his book. "Handbook of Legal Terms and Phrases" and enunciation of the term, in Radin Law Dictionary Max Radin at page 282.
The learned counsel for the applicant has contended that it was a case of pure and simple accident and there was no element of rashness or negligence and the learned appellate Court has misapplied the principle of rashness and/or negligence enunciated in the cases referred to According to him, the appellant, who is an English Teacher, was sitting in. His house alongwith his relations and a rabid dog suddenly enters his house and he just took up his father's licensed gun and shot the dog in order to avert imminent danger to the inmates of the house and the shot unfortunately hit his were, who just came suddenly from the nearby cattle pen. He has urged that the eye-witnesses to the incident and even the father of the deceased lady have confirmed their evidence that it was a case of pure accident. He has relied upon the provisions of sections 80 and 81 of the P.P.C. And to advance the argument that the incident was an accident and no offence was committed by the applicant. Section 80 of the P.P.C. Provides that nothing is an offence which is done by accident or misfortune, and without a criminal intention or knowledge, in the doing of a lawful act in a law manner by lawful means and with proper care and caution. The act the applicant in shooting of a rabid dog was not an unlawful act was it an act done in unlawful manner or by unlawful means regards proper care and caution, there is nothing on the record t indicate that the applicant was guilty of carelessness or negligence. Section 81 of the P.P.C. Provides that nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to person or property. In the instant case, a rabid dog had entered the house of the applicant and' there was imminent danger of its biting the inmates of the house and the applicant was justified in firing at such a dog as to avoid harm to the inmates of the house and it was sheer misfortune that the shot hit his were, who had made sudden appearance at the spot from a nearby cattle pen. The learned counsel for the State has conceded that incident was a pure accident and the hitting of the shot to the deceased did not involve any rashness or carelessness on the part of the applicant. He has not supported the judgments of the Courts below and he has fairly opined that the applicant deserved to have been acquitted.
4. Evidently, the evidence on the record leads to the conclusion that the deceased was accidentally hit from the fire of a gunshot fire by the applicant to hit a rabid dog having entered the house a there was no element of criminal intention or knowledge to the applicant for causing her any harm nor was there any rashness or recklessness in the act of the applicant as to hold him guilty of any criminal liability. The principle laid down in the enlightening cases relied upon by the learned appellate Court Judge, referred to above, excludes the applicant from the criminal liability of rashness and negligence enunciated therein. It, therefore, appears that there has been miscarriage of justice in convicting and sentenced the applicant, holding him guilty of rash and negligent act of causing injuries to his were in the act of making fire from a gun at a rabid dog which had entered the house suddenly. Accordingly, the criminal revision application is allowed and the conviction of the applicant for an offence punishable under section 304-A, P.P.C. And the sentence awarded on him by the learned trial Magistrate and later upheld in appeal by the learned Additional Sessions Judge are set aside and the applicant stands acquitted. His bail bond stands discharged. The judgment was announced yesterday by a short order and herein are the reasons therefor.