' Appellant Shafqat Ali alias Furqan was tried by Mr. Abdul Hameed Abro, 1st Additional Sessions Judge (Central) Karachi,. For the offence under section 304, P.P.C., who found him guilty for the offence under section 304-A, P.P.C. And vide judgment, dated 10-8-1988, sentenced him, to suffer R.I. For five years. The benefit of section 382-B, Cr.P.C. Was also extended to appellant, while computing the sentence awarded to him. By this appeal filed under section 410, Cr.P.C., the appellant has challenged his conviction and sentence.
2. Deceased. Zahid Khan, appellant Shafqat Ali alias Furqan, P.Ws. Zahid Raza, Hasan Raza and Muhammad Javaid were close friends. On 11-11-1986 they had assembled in Fiat No,2/38, Zeenat Square, Liaquatabad, Karachi, as on that day P.Ws. Zahid Raza and Muhammad Javaid were leaving for Bharat. At about 8-30 a.m., appellant was playing with a loaded revolver of deceased Zahid Khan, when his hand touched its trigger, thereby causing fatal injury to deceased Zahid Khan.
The appellant also sustained injury on his hand in that process. Zahid Raza and others carried deceased Zahid Khan to Baquai Hospital in a taxi car. They were, however, advised to carry deceased Zahid Khan to Abbasi Shaheed Hospital, where he was found dead. The police was informed on telephone. On the same day Mannan Khan, father of deceased Zahid Khan who was on duty was apprised of the incident. He rushed to Abbasi Shaheed Hospital and saw the dead body of his son Zahid Khan lying in mortuary. Ali Yar Khan S.I.P. Of Liaquatabad Police Station who was already present in the hospital recorded 154, Cr.P.C. _statement of Mannan Khan, which was subsequently incorporated in 154, -Cr.P.C. Book. On 15-11-1986, the present appellant was arrested.
His right hand was found bandaged and consequently he was referred for medical examination.
After usual investigation the appellant was sent up.
3. At the trial the appellant pleaded not guilty to the charge .Framed under section 304, P.P.C. And claimed a trial.
4. The prosecution has examined Mimnan Khan (P.W.1), Shahid Khan (P.W.2), Zahid Raza (P.W.3), Hasan Raza (P.W.4), Dr. Nasim Ismail (P.W.5), Ali Yar Khan S.I.P. (P.W.6), and Abdul Ghafoor A.C.M.
(P.W.7). P.W. Muhammad Javaid was not traceable, hence his statement recorded under section 164, Cr.P.C. Was brought on record under Article 47 of the Qanun-e-Shahadat, 1984.
5. In his statement recorded under section 342, Cr.P.C., the appellant admitted his presence at the place of occurrence at the relevant time. It is, however, his case that deceased Zahid Khan was himself playing with the loaded revolver, which went off accidentally hitting deceased Zahid Khan, who died on the spot. The appellant has tried to explain the injuries sustained by him in the following words:-- "On 8-11-1986, 1 and Jawaid were coming back after getting our seats booked for Lahore front Railway City Station. We were coming back by motor-cycle which was driven by me. In the meanwhile I slipped on the road and we fell from it, with the result that my hand fell on the stone lying by the road side, on account of which I sustained injuries on my hand."
6. The appellant has examined himself on oath (D.W.1). He also examined Muhammad Anwar (D.W.2) and Muhammad Nadir Khan (D.W.3).
7. On the assessm ent of evidence available on record, the learned Additional Sessions Judge convicted the appellant for the offence under section 304-A, P.P.C. And sentenced him accordingly.
8. I haVe heard Mr. Umar Farooque Khan, learned counsel for the appellant and Mr. Laeeque Ahmad Jafri, learned counsel for the State. The latter has supported the conviction and sentence awarded to appellant. - 9. The fact that deceased Zahid Khan died an unnatural death is not open to any controversy.
Besides the evidence of Zahid Raza (P.W.3) and Hasan Raza (P.W.4), there is evidence of Dr. Nasim Ismail (P.W.5), who had conducted the autopsy on the dead bOdy of Zahid Khan and found the following external injury on his person:-- "A punctured wound on the right side of the chest 2" lateral to the nipple of the right side of chest, a thin ring of blackening surrounding the wound 1/2" x 1/2" and was deep to the cavity."
' In the opinion of Dr. Nasim Ismail (P.W.5) the injury was caused by discharge from fire-arm, like revolver. The appellant has also not questioned this aspect of the case.
10. The case of the prosecution rests upon the following items of evidence:--
(i) Direct testimony consisting of Zahid Raza (P.W.3) and Hasan Raza (P.W.4).
(ii) Presence of injuries caused by a revolver on the hand of appellant.
(iii) Conduct of the appellant.
11. Zahid Raza (P.W.3) and Hasan Raza (P.W.4) are friends of appellant both deceased Zahid Khan and appellant Shafqat Ali alias Furqan were close Shafqat Ali alias Furqan. They were also friends of deceased Zahid Khan. In fact friends. Zahid Raza (P.W.3) implicates the appellant in the following manner:- "That pistol was picked up by accused Furqan who started playing with it. Furqan demanded one bullet from deceased Zahid. He gave him one bullet in the pistol. In the meanwhile we started packing up for departure and restrain Furqan from firing because accused desired to lire from the pistol. We insisted upon the accused not to fire due to curfew. At that time I was sitting by the side of deceased. I was talking to deceased Zahid Khan when all of a sudden I heard fire shot. I felt as if I was hit by the bullet I was perturbed when t saw the revolver lying on the ground. After a short while was that the bullet had hit Zahid Khan on right side chest."
12. Hasan Raza (P.W.4) also implicates the appellant in specific words. He further states that appellant had also sustained injury on his hand and he was bleeding.
13. The account of occurrence given by both these witnesses is consistent and the learned counsel for the appellant was not able to pick holes in their testimony. In cross-examination nothing has been elicited to detract the value of the testimony of these witnesses. The only fact that all the friends of deceased Zahid. Khan were taken into custody at the initial stage of investigation in no way cast doubt about the integrity of these witnesses, who had obviously no reason to implicate the appellant falsely.
14. The presence of injuries on the hand of appellant is a clear pointer of his involvement in this case. Dr. Nasim Ismail (P.W.5) who had examined the appellant on 17-11-1986, found the following injuries on his person:--
(i) A punctured wound very small in size at the ulnar border of the palmer aspect of the right hand alongwith 5th metacarpal region 1/6" x 1/6" x through and through, skin surrounding in the area of about 1 m.m. It was wound of entry.
(ii) A punctured wound along with ulnar .Border at the junction of the palmer and dorsal aspect of the right hand 1/8" x 1/8". It was wound of exit of injury No,1.
' Dr. Nasim Ismail (P.W.5) has opined that the injuries appeared to have been caused by discharge from lire-arm, like a revolver.
15. The appellant admits the presence of injuries but claims that they were caused by fall from a motor-cycle. No such question was, however, put to Dr. Nasim Ismail (P.W.5). It is quite coneeiveable that the eye of the expert can see a good deal more in matters of this kind than an untrained eye.
16. Lastly the absence of appellant till 15-11-1986 when he was taken into custody is another circumstance which lends support to the version of Zahid Raza (P.W.3) and Hasan Raza (P.W.4) when they state that he was the person who was instrumental in causing the death of Zahid Khan, although negligently. He had a D guilty conscience and was, therefore, concealing himself for four days. The defence witnesses again appear to be set up.
17. A rash act is primarily an overhasty act, and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do.
(See the Penal Law of India by Sir Harisingh Gour).
18. In Motiram v. Emperor reported in AIR 1930 Lah. 462, the accused knowingly that the pistol was loaded was trying to unload it and while doing so acted so negligently that the pistol went off hitting a boy and it was held that the act was negligent and it fell withiir the purview of section 304- A, I.P.C. (P.P.C.).
19. The case of Sadhu Singh Harnam Singh v. The State of Pepsu reported in AIR 1954 SC 271, is also relevant on this point. At page 276, it was observed:-- "We are, therefore, of the opinion that the High Court was clearly in error in holding that the accused was guilty of the offence Of murder under section 302, I.P.C. On the materials placed on the record it could not be held proved that he had any intention of firing at the Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication in order to see that by the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and negligent act on his part or at the worst was an act which would amount to manslaughter. It could not be held to constitute an offence of murder. No intention of causing death or an intention Of causing such bodily injury as being sufficient in the ordinary course of nature to cause death could be ascribed to the accused or readily inferred in the circumstances of this case."
20. In somewhat similar circumstances S.A. Mahmood, J. (as he then was) observed in Swab Gul v.
The State reported in PLD 1959 Lah. 655, as under:-- "Pulling the trigger of a revolver without taking the precaution of seeing that it was empty was gross and culpable negligence especially when it was pointing in the direction of an open door, where the deceased stood. Culpable negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. It is a gross and culpable negligence to fail to exercise that reasonable and proper care and caution which a person should have taken to guard against injury to the persons present nearby. It is the failure of the care and precaution which the petitioner should have adopted in the circumstances of the case which makes him guilty under section 304-A, P.P.C."
21. A Division Bench of our own High Court examined such conduct of accused in Shahzado v. The State reported in PLD 1978 Kar. 664, and observed as follows:-- "Since the case against the appellant rests entirely on his judicial confession, it has to be considered in its entirety, as there is no evidence to contradict the exculpatory parts thereof. In his confession, the relevant portion whereof we have reproduced, the appellant has stated that he was not aware, when he picked up the revolver, that it was loaded and he had aimed the revolver at the deceased merely to frighten hitt.' and not to kill him, but accidentally his finger touched the trigger, in consequence of which the bullet shot hit the deceased. The confession thus clearly indicates that the firing of the shot at the deceased was accidental and not intentional. As such the appellant cannot be burdened with the intention of killing the deceased or causing an injury which would result in his death. His case, in our opinion, would thus fall under section 304-A, P.P.C., for the act of the appellant in aiming a revolver at a person, without caring to know whether it was loaded or not, was both criminally negligent as well as culpably rash. The appellant, who is said to be a student of the Intermediate class should have known that such an act could possibly result in grave consequences if the revolver happened to be loaded."
22. The cases reported as Allahyar v. The State 1982 P Cr. L J 357, and Muhammad Ismail v. The State 1982 P Cr. L J 528 are also relevant in a situation like this.
23. The persons handling dangerous weapons have, therefore, to be especially careful. The revolver is not a toy to be played with, especially when it is loaded. The law requires a man to know at his peril the teachings of common experience, and he is deemed to foresee that which a reasonable man would foresee.
24.
24. For all the above reasons the appeal fails and is dismissed. The appellant who is on bail shall serve out the remaining sentence. The trial Court shall take necessary steps for remanding the appellant to custody.