Police Station Hujra Shah Muqim, District Okara, sent Muhammad Rafique son of Muhammad Din aged 35 years, to face trial for an offence under section 302, P.P.C. Sessions Judge, Okara, vide his judgment dated 24-9-1990 convicted and sentenced Muhammad Rafique under section 304, Part II, P.P.C. To ten years' R.I. With a fine of Rs.10,000 or in default of payment of fine, one year's R.I. It was further directed that the fine, if recovered, the whole of it shall be paid to the legal heirs of the deceased. The convict has appealed. This judgment shall dispose of the same.
2. The prosecution story, in brief, as disclosed in F.I.R. Exh. P.D. Lodged by Muhammad Siddique, was that on 4-3-1988 the first informant with his brother Barkat Ali and son Muhammad Hussain had participated in the marriage ceremony of one Muhammad Yaqoob. Muhammad Rafique was firing in the air with his pistol. First informant's son Haji Muhammad Hussain ,forbade him from doing so.
Both of them exchanged hot words. Thereafter, Muhammad Rafique, appellant, sat in a car and went away but came back after a few minutes. The moment he came back, he took out his pistol and fired at Muhammad, Hussain hitting on his chest, whereupon he fell down and died.
Muhammad Rafique ran away from the spot alongwith his pistol. The occurrence was witnessed by people present there.
3. The occurrence in the instant case had taken place on 4-3-1988 at 9 a.m. In village Rajowal, 12 k.m from Police Station Hujra Shah Muqim, District Okara, F.I.R. Exh. P.D. Was lodged by Muhammad Siddique P.W.4 on the same day at 9-30 a.m. It was recorded by Nasrullah Khan Niazi,, S.I. P.W.6.
Nasarullah Khan Niazi, S.I. After registration of F.I.R. Exh. P.D., came to the spot and prepared inquest report Exh. P.H. And injury statement Exh. P.I. And then sent the dead body for autopsy. Blood- stained earth was secured from the spot vide memo. Exh. P.F. On the same day at 12 noon, Muhammad Rafique, accused, appeared before him and produced pistol P.7 with three live cartridges P.7/1-3 which was secured vide memo. Exh. P.G. He recorded the statements of the witnesses and after necessary investigation challaned the appellant.
4. Dr. Muhammad Mahmood Afzal, P.W.1, conducted the post-mortem examination on the dead body of Haji Muhammad Hussain on 4-3-1988 at 2 p.m. And observed the following injuries:--
(1) A circular lacerated wound 1,/2 x 1/2 c.m. With margins lacerated around the hole in area of 1-1/2 x 1-1/2 c.m. Depth could not be measured. Margins of the wound blackened slightly just in a rim shape. Margins of the wound were ingoing (entrance wound). This was 8 c.m. Above and inwards from right side nipple, on the front and right side of chest, 2 c.m. Away from middle line between second and third rib and was 8 c.m. Below the upper end sternum.
(2) A lacerated wound, irregular 1-1/2 x 1-1/2 c.m., depth could not be probed, with lacerated tails on both sides of 1-1/2 c.m. Each. It was on the back of chest on the right side just close to middle line, 11 c.m. From the base of neck and 19 c.m. From right axils. Margins were averted, no black staining and blood was still coming out from the wound. That was the exit wound.
5. The prosecution in support of its case produced 7 witnesses in all. Muhammad Ishaque, Draftsman, P.W.2 had prepared site plans Exh. P.B. And Exh P.B./l The ocular account was furnished by Muhammad Siddique and Barkat Ali, P.Ws. 4 and 5, respectively. The case was investigated by Nasarullah Khan Niazi, S.I., P.W.6. The rest of the witnesses are formal.
At the conclusion of the prosecution evidence, the appellant was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence. In answer to a question, he further stated that the deceased was his friend. On. The day of incident he had his licensed pistol with him.
He stated that Muharnwad Hussain, deceased, wanted his pistol to fire in the air in jubilation. He refused to give the same, whereupon the deceased caught hold of the barrel of the pistol and tried to snatch it, whereupon the weapon went of accidentally resulting in death of Muhammad Hussain.
He further stated that he had no motive or ill-will against the deceased. He had also produced a witness in his defence.
Muhammad Ayyub, D.W.1 stated that the deceased Muhammad Hussain and appellant Muhammad Rafique were his friends. He had invited both of them to attend his marriage party. He stated that Muhammad Siddique and Barkat Ali, eye-witnesses of the occurrence, were neither invited nor were present in the marriage party. He stated that the deceased asked Muhammad Rafique appellant for his licensed pistol, which he refused. The deceased tried to pull the pistol from the hands of the appellant, which went of accidentally resulting in the death of Muhammad Hussain. He further stated that after the incident he sent a message to Muhammad Siddique, father of the deceased, who came subsequently.
It was contended by learned counsel for the appellant that the prosecution had failed to establish its case against him. Submitted that even if the entire prosecution. The allegation is accepted, it would only indicate that it was an accident. Submitted that both the eye-witnesses had made improvements to an extent that no reliance on their statements could be placed. Lastly, it was contended that the sentence awarded to the appellant was too severe. In the absence of any motive and both of them being close friends, the sentence already undergone would adequately meet the ends of justice. The contentions,, were resisted by learned counsel for the State.
6. I have heard the learned counsel and gone through the evidence with his assistance. The ocular account was furnished by Muhammad Siddique and Barkat Ali, father and uncle of the deceased, respectively. In the F.I.R. Both of them had not stated any motive for the commission of the offence but at trial stage they came up with the story that the appellant suspected the deceased of having illicit connection with one Mst. Nemat Bibi, a close relation of the appellant. The witness was duly confronted with the statement made under section 154, Cr.P.C. Wherein he had not alleged the motive. The witness had made number of improvements with which he was duly confronted and could not explain the contradictions. Barkat Ali had also made number of improvements with which he was duly confronted. On the other hand, the appellant produced D.W.1 whose marriage had taken place on the fateful day. He stated that the occurrence had taken place because of an accident in which the deceased tried to snatch the pistol from the hands of the appellant. The learned trial Court had also held that the occurrence took place without any motive and was an accident, that is why he was convicted under section 304, Part II, P.P.C. The occurrence has also been admitted by the appellant but in a different manner. In these circumstances, I feel, the contention of the learned counsel for the appellant that if the occurrence had taken place as an accident, without any motive, the sentence is too severe, is correct. Therefore, while dismissing the appeal I reduce the sentence of imprisonment to three years' R.I. The sentence of fine is, however, maintained. The appellant shall also be given the benefit of section 382-B, Cr.P.C. The appeal is dismissed.