MUHAMMAD AMIR MALIK, J.~ Muhammad Yar alias Mohammad alias Mohammad Khan alias Mamman appellant was convicted under Section 304-11 PPC by Additional Sessions Judge, Faisalabad vide judgment dated 6.5.1980 and sentenced to three years R.I. And a fine of Rs.5,000/- or in default thereof one year's R.I. He has appealed.
2. The occurrence took place at 3.00 a.m. On 17.10.77 and the matter was reported to the police by Muhammad complainant (P.W.8) on the same day at 7.00 a.m.
3. The version given was that on the fateful night the complainant, Dost Muhammad and Ghulam (PWs 8, 9 and 10) and Aslam deceased reached the Dhari of Noora situate in Killa No.11/1 Square No.82 of their Chak to enjoy Huaquero after having a round of the maize crop of Dost Muhammad.
Aslam deceased was sitting on a cot and in the meantime Rafiq (given up P.W) with l2 bore gun and Zafar (also given up P.W.), of their village also reached after a round of the maize crop of Noora. Rafiq made his gun to hang along a peg in the Deori and himself went to sit on the cot. In the meantime Muhammad Yar alias Muhammad appellant also reached. A lamp was on in the Deori. The appellant picked up the gun though he was told by Rafiq that it was loaded. Telling the deceased that he was not desisting, fired at him hitting him in the right chest and he fell down while the appellant ran away alongwith the gun. The matter was reported to Bahadar Lambardar who reached the spot and was told about the occurrence by Aslam deceased. The deceased was being taken to the hospital but he expired on the way. The motive given was that the appellant was suspected of illicit connection with Msf. Sabu daughter of Sardar and was asked by the deceased to desist from it.
4. The appellant, at the close of the trial, in his statement, pleaded innocence and asserted that the deceased was his friend and used to work in their fields. On the night of occurrence his (appellants's) father was not at the Dhari and so he and the deceased went there to sleep. Rafiq and Zafar, P.Ws, also reached there. Rafiq placed his gun on the cot with barrel towards the deceased. Rafiq told that the gun was loaded. On it he (the appellant) told that he was going to unload the gun but it went off and the shot hit the deceased who died later on. He claimed to have thrown the gun at the spot and ran away.
5. At the trial Muhammad Complainant, Dost Muhammad and Ghulam (P.Ws. 8,9 & 10) were examined to prove the charge against the appellant. Muhammad stated that the appellant took the gun from the peg, pointed it at Zafar P.W. Who told him that it was loaded whereafter he pointed it towards the deceased who asked him not to do so but the appellant pressed the trigger and it went off hitting the deceased. He could not say why the appellant had pressed the trigger.
He further told that actually the trigger of the gun was pressed by the appellant accidentally and he had no intention to kill. He was declared hostile and cross-examined by the Prosecutor. He admitted to the cross-examination by the defence that Dosa (Dost Muhammad P.W.) was inimical to the appellant and a murder case was also pending between them. Dost Muhammad himself admitted in cross-examination that the appellant was their old enemy, he did not fire at him, rather the accused fired accidentally on the night of occurrence. Ghulam (P.W.10) stated that the appellant pointed the gun at Zafar and then at Aslam deceased. He could not say why the appellant pressed the trigger and fired at the deceased. In cross-examination he admitted that the deceased was his grand-son and he (Ghulam P.W.) was personal servant of Dosa (P.W) who had long standing enmity with the appellant. He also admitted that Dosa P.W. Had persuaded him to make the statement in Court. Thus from the statements of the witnesses it is clear that the gun while being handled by the appellant was accidentally fired. There was no intention to commit the murder.
6. So the contention raised by the learned counsel for the appellant is correct that the conviction of the appellant under Section 304-11 PPC could not have been recorded. The case clearly fell under Section 304-A PPC. The appeal is, therefore, partly allowed. The conviction of the appellant under Section 304-II PPC is set aside and he stands convicted under Section 304-A PPC. He has been behind the bars before and after the trial for 14 months. Thus the sentence already undergone and a fine of Rs.5000/- or in default thereof one year's R.I. Would meet the ends of justice. I . The fine would be deposited in the learned trial Court within one month from today otherwise he would be taken into custody and sent to jail to serve out the sentence. The fine, if deposited, shall be paid to the legal heirs of the deceased as compensation.