Jjaz Nisar, J.-Zafar Ahmad (35) and Satar Din (since acquitted) were tried for the murder of Maqsood Akhtar (28). By judgment dated 18.11.1986 learned Addl. Sessions Judge, Sialkot convicted Zafar Ahmad appellant under section 302 P.P.C, and sentenced him to imprisonment for life plus a fine of Rs.2,000/- or in defauIt to undergo three months R.I with benefit of Section 382-B Cr.P.C.
Satar Din accused was, however, acquitted.
Zafar Ahmad appellant has challenged his conviction and sentence by filing this appeal.
2. The prosecution case is that Zafar Ahmad who is a Post Graduate having Master Decree in history was related to Maqsood Akhtar deceased and lived in his neighbourhood. On 29.9.1985 at about 1030.P.M. Maqsood Akhtar deceased was beating his wife on the roof top of his house. The hue and cry raised by her attracted the appellant who reprimanded the deceased for his inhumane behaviour and declared that he was a beghairat. The deceased started abusing the appellant and advanced towards him who in the meantime brought out a 12 bore gun and fired at the deceased hitting him in the chest as a resuIt of which he fell down. The occurrence was witnessed by Muhammad Ashiq PW.8, Abdul Aziz PW.9, Muhammad Riaz and Mashooq Ali not produced. He was carried to the hospital but expired before any medical aid could be given to him.
Muhammad Ashiq PW.8 real brother of the deceased reported the matter to the Police vide statement Exh.PG recorded by ASI, Muhammad Iqbal PW.12. Muhammad Iqbal ASI prepared the injury statement Exh.PH and the inquest report Exh.PJ of Maqsood Akhtar deceased. He secured blood stained earth from the spot and took into possession crime empty P.2 vide memo Exh.PE. He arrested the appellant on 13.10.1986. On 17.10.1985 he got recovered his licecned gun P.3 and its licence P.4 through memo Exh.PF.
3. Dr.Moeen Ullah Qureshi PW.2, conducted post mortem examination on the dead body of Maqsood Akhtar and found the following injuries thereon.
1-A) A circular punctured wound measuring 1-1/2x2 c.m with inverted margins without charring of margins on the upper part of front of chest on right side.
1-B) MuItiple small circular punctured wounds measuring about 1/4 x 1/4 c.m. With charring of margins around.
2. Small contusion 2 cm x 1/2 cm on right side of sternum in its lower part.
3. Small circular hole in the third rib on right side interiorally as well as posteriorally which was corresponding to injury No.1-A.
4. Pleura on right side was also showing perforation in its upper part corresponding to injury No.1-A.
5. Right side of thoraix cavity was full of clotted blood i. e. Right sided hemo phorax.
6. MuItiple small punctured holes in upper lobe of right lung.
Injuries Nos 1-A and 1-B were dangerous to life and had been cuased by firearm. The rest were simple and caused by blunt weapon.
4. Zafar Ahmed appellant in his statement gave the following version.
"I am innocant. What actually happened was that the deceased gave fiIthy abuses to his wife and also gave her a severe beating. I am not only the neighbour but am also relative of the deceased. I had very good relations with him. I reprimanded him in a very gentle manner and asked him not to beat his wife and asked him not to beat his wife and what I said was that it is be-ghairati to beat the wife openly on the roof. What I learnt about it was that the wife of the deceased used to object to his taking liquor and even on the day of occurrence, he wanted to take liquor, his wife objected, on this he gave her beating. I as a relative, just asked him not to do this. Few minutes thereafter he became very, furious and started abusing me and my women-folk and children and thereatened me that he will not spare me. I noticed something in his hand, apprehending danger I took out my gun and stood outside my house. He was so violent and it appeared to me that he was going to come down by the stair-case of the roof of Abdul Ghani where he was standing and abusing me and my family. I just aimlessly fired one shot to deter him and to dissuade him from coming down but it accidentally hit him. This is what actually happened. I had absolutely no enmity with the deceased of any kind. Rather our relations were very good. I am an educated man. I have got Masters degree and have always been a law abiding and peaceful citizen. My eye-sight is very week. I had never any intention to any injury to the deceased or to kill him. This is the whole truth.
Satar Din co-accused was not even present at the time of occurrence.'
5. Relying on the ocular testimony furnished by Muhammad Ashiq PW.8 and Abdul Aziz PW.9, the trial Court convicted and sentenced the appellant as described above.
6. Kh.Sarfraz Ahmad, learned counsel for the appellant has not challenged the prosecution case or the testimony furnished by Muhammad Ashiq PW.8 and Abdul Aziz PW.9 but has questioned the legality of the conviction of the appellant under section 302 P.P.C. According to him, the occurrence was unpremeditated and committed at the spin of moment. Apprehending danger at the hands of the deceased who had become violent on being asked by the appellant to stop beating his wife and had advanced towards him that he fired one shot towards him to frighten/deter him which accidentally hit him and in these circumstances his conviction under section 302 P.P.C, was not called for. In support of his contentions he has cited Muhammad Ali Versus Ahmad Ali and another P.L.D. 1974 S.C.51) where it was observed that it is no murder merely becuase death by doing an act with the knowledge only that it so imminently dangerous that it must in all probabiIty cause death it becomes murder only if it can be positively affirmed that the reckless act was done without any execuse whatsoever. In the said case, the accused who had pulled out his revolver from the fold of his loin cloth and fired three shots on the supporters of his opposite team in the course of Volley ball game resuIting in the death of one person was convicted under section 304 Part I P.P.C, and sentenced to 7 year R.I.
In the present case there was no background of enmity between the parties and the occurrence had taken place at the spur of moment without any pre-meditation and the appellant had fired one shot from his licenced gun to deter the deceased from advancing towards him but since he had hit him in the chest, I think that the appellant was not careful or deligent enough in aiming the gun towards the deceased but at the same time his act cannot be declared to be without any excuse. In this view of the matter the ends of justice will be met if he is convicted under section 304 Part I P.P.C, instead of section 302 P.P.C. I order accordingly and sentence him to seven years R.I.
And to pay a fine of Rs.5,000/- or in defauIt to undergo one and a half years R.I. With benefit of section 382-B Cr.P.C. The fine, if realized, shall be paid to the heirs of the deceased.
With the above modification, the appeal is otherwise dismissed.