1. HAMOODUR RAHMAN, C. J.--The first respondent herein was tried for having intentionally caused the murder of one Zafar A.I by firing at him on the 18th of February 1967, at about 3 p.m. In the playground of the Primary School of village Khakhi Paunta, Police Station Jalalpur Pirwala, District Multan.
2. The incident resulting in the death of Zafar A.I took place in the course of a volley ball game between Sher Club `B' of Mauza Beli and Saleh Club B' of Mauza Qadirpur Salch. During the course of the play, the Qadirpur Saleh team served a ball which fell upon the side of the Beli team near the court-line. The Beli team maintained that the ball had fallen outside while the opposing team insisted that it was within the court--line. This led to a controversy which interrupted the match.
3. The supporters of the respective teams joined in the controversy and started abusing and throwing brickbats at each other. The respondent who was a supporter of the Qadirpur team, it is said, was hit by one of the brick-bats. At this he pulled out his revolver from the left fold of his loin-cloth and fired three shots on the supporters of the Beli team. The first two shots fortunately did not hit any one, but the third shot hit Zafar A.I in the neck, pierced through his trachea and lodged in his spinal cord. He fell to the ground and on seeing this the respondent took to his heels. He was chased by two supporters of the Beli team. The pursuers themselves were, however, caught hold of by other supporters of the Qadirpur team and this enabled the respondent to make good his escape.
4. The injured Zafar A.I was carried in the tonga of the local Union Council Chairman to the police station by the Lambardar and Chowkidar. There he himself lodged the first information report which was recorded by the S. H. O. At 6-30 p.m. The injured was then sent to the Civil Dispensary. He was examined at the dispensary by the Medical Officer-In--charge at 7 p.m. The latter found him to be "quite in sense" although he was spitting blood and his condition appeared to be dangerous.
5. He was also said to be in a "shock condition".
6. The external injury found on his person was a circular lacerated wound Y x r x I' (trachea deep) on the thyroid cartilage on the front of he neck Seeing that the condition of the patient was deteriorating the doctor wrote a ruqqa on the next day to the Police to remove the petitioner to the Nishtar Hospital. The time at which the ruqqa was written is unfortunately not recorded on it, but it appears that the deceased remained admitted in the dispensary up to 10 a.m. Of the 19th of February 1967, when he was presumably taken to the Nishtar Hospital. He, however, expired at the gate of the hospital before any medical assistance could be rendered.
7. The post-mortem examination was conducted on the 20th February 1967. The injury described earlier was confirmed but on dissection it was found that the projectile had lacerated the left lung in its upper part to the extent of J" X J' and the chest contained 30 ounces of blood. The pellet was also found embedded in the spinal cord in the upper part of the chest. The injury, which was caused by a fire-arm, was ante--mortem and was sufficient in the ordinary course of nature to cause death.
8. The doctor was further of the opinion that "in case of such an injury to the trachea as suffered by the deceased speech would be very difficult since air would tend to escape through the hole in the trachea".
9. After investigation the respondent was arrested at Mouza Beli on the 23rd of February 1967. He produced from his person his licensed revolver (Exb. P. 5) with three live cartridges (Exh. P. 6/ 1-3).
10. All these were taken into possession as also his licence (Exh. PN/1). The clothes in his wearing which appeared to be blood-stained were also seized; but these recoveries are not of any importance because neither the weapon has been matched with any empty nor the blood stains on the clothes, though found to be of human origin, were from the person of the deceased. The fact that the respondent himself had received an injury in the course of the incident could equally well explain the presence of blood on his clothes.
11. The trial Court convicted the said respondent relying mainly on the ocular testimony furnished by Muhammad Hussain (P. W. 9), Bashir Ahmad (P. W. 10), Allah Bakhsh (P. W. 11), Allah Wasaya (P. W.
12. 12) and Muhammad A.I (P. W. 13) who were present at the scene of the incident and claimed to have seen the shot being fired. In fact, Bashir Ahmad and Allah Bakhsh claimed that they had tried to apprehend the respondent after be had fired at the deceased but were themselves caught hold of by the other supporters of the Qadirpur team and man handled. They received injuries as a result thereof. The trial Court also treated the F. I. R. As a dying declaration but did not rely upon it because of the opinion of the doctor who carried out the post-mortem examination that with an injury of such a nature the deceased would not have been in a position to speak. The evidence of the eye-witnesses was, however, relied upon even though all except one of them were related to the deceased. The relationship was found to be only remote and since no enmity with the respondent had been alleged, the Court found no reason to discard the evidence of such witnesses.
13. The possibility of the respondent having received a brick-bat injury in the course of the incident was also taken into account but it was held that this did not give him the right of self-defence or the right to fire recklessly on a crowd of people. In the result the said respondent was convicted but he was given the lesser sentence of transportation.
14. From this order, both the respondent and the present appellant went up to the High Court; one against his conviction and the other for the enhancement of the sentence. Both these matters were heard together by the High Court which accepted the appeal and set the respondent free holding that no case had been made out against him. According to the High Court, the dying declaration was rightly not relied upon by the trial Court and the recoveries were of no help. So far as the oral testimony was concerned, it was opined that there was no clear evidence to the effect that the respondent had fired at the deceased directly,, particularly, since the shot which was allegedly fired from a distance of 5 yards, had not pierced through the spinal column. The fact that the spent bullet recovered was found to be completely flat, although it had not touched any bone in the body, was held to indicate that it could not become so flattened unless it hit some hard substance. - Therefore, it was more likely that the respondent fired shots in the air, one of which hit one of the brick-bats flying about, then ricocheting from it hit the deceased Zafar A.I. Had this not been so, then it is difficult to appreciate why the, first two shots hit no one else.
15. Leave was granted in this case to consider as to whether, even in the circumstances assumed by the High Court, this was a fit case in which the respondent should have escaped liability altogether.
16. So far as the dying declaration is concerned, learned counsel appearing in support of this appeal has drawn our attention to the evidence of the S. H. O. Who recorded the same. He clearly pointed out in the course of the cross-examination that at the time he recorded the dying statement he did not observe that the informant was suffering from any shock, difficulty in breathing or any shortness of breath. In fact, he could "speak clearly and coherently like a normal person". Not only this after it was recorded, it was read over to the informant and he admitting it to be correct affixed not his thumb-impression but his signature to the document. In these circumstances, it is difficult to appreciate that the deceased could be said to be absolutely incapable of speech at the time.
17. Even the Medical evidence does not say this. All that the doctor has said is that speech would be difficult as wind would escape through the aperture in the trachea. In any event, the direct evidence of the S. H. O. Could not have been rejected purely on the basis of the hypothetical opinion of the doctor.
18. Next, with regard to the finding of the High Court that it had not been established that the respondent fired at the deceased, the dying, declaration clearly stated that the third shot was aimed at him. The oral evidence of the other witnesses is also to the effect that "Ahmad A.I fired the third shot at Zafar A.I". There was no suggestion made to any witness in cross-examination that Ahmad A.I had actually fired the shots in the air. Even in his examination under section 342, Cr. P. C.
19. The respondent maintained that he had been falsely implicated due to enmity merely because the complainant party knew that he held a licence for a revolver. His own story was that as soon as he received a brick-bat injury he ran away from the place.
20. There can be no manner of doubt that the fatal shot was fired by the respondent in the course of this incident. The High Court has also accepted this. The High Court's theory that there was no evidence to show that it was deliberately aimed at the deceased is incorrect, for, the evidence was there-whether it was believable or not was a different. Question. We see no reason to disbelieve it, particularly, since the theory propounded by the High Court was not suggested to any witness at all and its based purely upon surmise and speculation.
21. The possibility of the bullet entering into the trachea passing through the lung, through the vertebral column and then stopping at the spinal cord after ricocheting from a flying projectile, has not been examined by any Court in any detail. No expert was examined on this point; nor was the doctor asked if this was possible. If the bullet spent its force after hitting the projectile, then it is difficult to accept that it could even then have retained sufficient momentum to pierce the trachea. Tile trachea is not an entirely soft tissue. It is a cartilage-a fairly hard' substance-and it cannot have been pierced unless the bullet was travelling: at high speed. The bullet could not also have got to the spinal cord unless it had penetrated through the vertebral column. We are not in a position, therefore, to say that the theory propounded and acted upon by the High Court was either plausible or founded on any correct apprecia--petition of the facts and circumstances of the case.
22. Even assuming that the High Court's theory is correct, the question still arises as to whether any person can in the circumstances be entitle to open fire so recklessly without regard to its consequences. If one uses such an imminently dangerous weapon as a revolver in such a reckless manner, one must accept the natural and inevitable consequences of his acts. One of the natural and inevitable consequences of such a reckless act of firing with a deadly weapon at milling crowd throwing --brick-bats at each other would be the likelihood of some one being hit _ and being grievously or even mortally wounded. The respondent must have or ought to have known that one of the likely results of his reckless act might be the causing of bodily injury to another person which is likely to cause death.
23. It has often been said that the offence of culpable homicide will amount to murder if the injury caused is sufficient in the ordinary course of nature to cause death. But it is equally well settled that it is not murder merely to cause death by doing an act with the knowledge only that it is so imminently dangerous that it must in all probability cause death. It becomes murder only if it can be positively affirmed that the reckless act was done without any excuse whatsoever.
24. The fourth clause of section 300, P. P. C. Also clearly contemplates that if a person committing the act resulting in the death knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, then offence committed will be murder if the act is done without any excuse. Illustration under this section would seem to support the view that the firing of a revolver from close range at a group of persons would come within the same category and would certainly amount to culpable homicide within Part I of section 304 of the Penal Code. In the circumstances, we are unable to agree with the High Court that this was a fit case in which the respondent should have been acquitted and set at liberty. He clearly was guilty of at least committing an act which was imminently dangerous, recklessly and without regard to the consequences that might result there-- from. He was, in our view, guilty at any rate under section 304, Part 1,1 P. P. C.
25. Learned counsel for the State too supports this appeal and submits that --the respondent should have at least been convicted under section 304, Part I--- P. P. C.
26. We, accordingly, allow this appeal, set aside the acquittal, convict him ,cinder section 304, Part I, P.
27. P. C. And sentence him to seven years' rigorous imprisonment. He should now surrender to his bail bond and serve out ,the remainder of his sentence. Any period of imprisonment already suffered will be taken into account in calculating this period of seven years.