' The present criminal appeal calls into question the judgment dated 8-8-1990, whereby Fakhar Hayat, Additional Sessions Judge, Gujranwala, convicted the appellant under section 304-A, P.P.C.
And sentenced him to 10 years' R.I. With a fine of Rs,10.000 or in default thereof to furthcr R.I. For two years. The appellant was further ordered to pay Rs,10,000 as compensation to the legal heirs of the deceased, Ijaz, or in default thereof to suffer further R.I. For six months. He was also given the benefit of section 382-B, Cr.P.C. By the said judgment.
' The co-accused of the appellant, namely, Zafar Ullah, Zafar and Ashraf, were acquitted by the said judgment dated 8-8-1990. The acquitted co-accused and the appellant were initially charged under section 302/34, P.P.C.
2. Briefly stated the facts of the prosecution case are that Zia Ullah son of Noor Muhammad, caste Jat Bawre, resident of Pindi Bawre, Police Station Vanike Tarar (P.W.11) reported to the police vide Exh. P.F. That his land is adjacent to Chah Basera of Kot Chian. On 17-12-1987 he alongwith his real brother Ijaz Ahmad (deceased), Altaf Hussain son of Jehan Khan caste Bawre, cousin and Altaf Hussain son of Ghulam Rasool, caste Jat Chatha, resident of Kot Pannan, Police Station Saddar Hafizabad, a guest, were present in their land on the eastern side of Chah Basera at a distance of 3/4 acres and were sprinkling fertilizer in the wheat field. At `degar-wela' Zafar son of Sajawal, acquitted co-accused, caste Phularwan, resident of Dera Basera Khuh came there and told Ijaz Ahmad deceased that his friends had arrived in the baithak of Mushtaq, appellant, and he could meet them. Ijaz Ahmad deceased suspended the work of sprinkling fertilizer and accompanied the said Zafar towards Basera Khuh.
3. And that after a short while Mushtaq son of Hayat, appellant, caste Jat Phularwan, resident of Basera Khuh within the area of Kot Chian came there and asked Altaf son of Jehan Khan, cousin of the complainant to give the licensed gun which was lying on the boundary of the field near sacks of fertilizer by stating that Ijaz Ahmad deceased wanted it for the purpose of game. Altaf Hussain forbade him from taking the gun but as the complainant and other PWs were sprinkling fertilizer in the field at some distance from the boundary, Mushtaq Ahmad accused/appellant nevertheless picked up the gun lying near the fertilizer and went away. The said PWs also followed him. The PWs had just reached at a distance of one acre from the baithak of Mushtaq Ahmad, when they saw Muhammad Ashraf and Zafar Ullah (acquitted co-accused), holding Ijaz Ahmad by his arms and Mushtaq Ahmad accused/appellant placing the said gun on the chest of Ijaz Ahmad and firing a shot. The P.Ws. Had shouted lalkara on which all the accused, leaving Ijaz Ahmad to fall down, fled away from the spot. The P.Ws. Had rushed to Ijaz Ahmad but he had expired.
4. The motive was stated to be that Mushtaq Ahmad accused/appellant had suspected Ijaz Ahmad deceased of maintaining illicit relationship with his sister.
5. P.W.11, Zia Ullah, alongwith Manzoor Ahmad, from the village was on his way to the Police Station to report when he had met Sardar Ali, A.S.I., P.W.14, at bridge of Rajbah Chhanni Hanjranwan, who had recorded Fard Bayan Exh.PF of the complainant which was read over to him. He had signed it, attesting to its correctness.
6. Sardar Ali (PW.14) after recording Fard Bayan, Exh.P.F., of the complainant had sent the same through a constable to the Police Station where formal F.I.R., Exh. P.F./1, was recorded. He had visited the spot, prepared inquest report, Exh. P.G. And injury statement, Exh. P.H., of the deceased. He had inspected the spot, collected the blood-stained earth and made into a sealed parcel vide memo Exh. PC. He had recorded statements of PWs at the spot. The dead body was despatched for post- mortem examination through Khadim Hussain F.C. (P.W.3). On 18-12-1987 the said P.W.3, after post- mortem examination of the deceased, brought back the blood-stained clothes sweater P.1, Kurta P.2 and Tehband P.3, and a sealed phial containing pellets which were taken into possession vide memo. Exh. P.D. On 20-12-1987 Arif Hussain Ayaz Draftsman P.W.2, had inspected the spot, took rough notes and prepared site plans Exh.P.B. And Exh.P.B./1. On 28-12-1987 all the four accused were produced before P.W.14 by Muhammad Afzal Tarar, Chairman, District Council, and they were arrested. On 31-12-1987 Mushtaq, appellant, while in custody made a disclosure about and led to the recovery of gun P.4 besides live cartridge P.5 and empty P.6, which were in the barrels of the gun, from within his residential house. The gun and the empty were made into separate sealed parcels and all the three items were taken into possession vide memo. Exh. P.E., which was attested by the PWs. The Investigating Officer deposited the sealed parcels and case property with the Moharrir and recorded statements of witnesses of recoveries and also prepared site plan of the place of recovery of gun which is Exh. P.E./1. He also prepared rough site plan of the place of occurrence which is Exh. P.I. He completed the investigation and the accused were challaned. In the meantime Altaf Ahmad, D.S.P. Wazirabad (P.W.13) also investigated the case, as the same was transferred to him by the orders of D.I.-G. He visited the spot, recorded the statements of accused in the lock-up and respectables from the sides also appeared before him. As per his investigation only Mushtaq Ahmad, appellant was found to be guilty whereas the remaining three accused were innocent. The local police had also placed the names of those three persons in column No,2 of the challan after finding them innocent.
7. Dr. Ghulam Sabir Sabri (P.W.1), on 18-12-1987, posted as C.M.O. Tehsil level hospital Hafizabad, had conducted post-mortem examination on the dead body of Ijaz Ahmad, aged 26 years. The dead body was identified by Zaka Ullah son of Muhammad Yar Lumberdar and Manzoor Ahmad son of Jehan Khah. It was a dead body of adult male of young average built with eyes and mouth closed, pale faced, rigor mortis present. Hypostaticalividity present well marked on the back of body.
Young strong man with 5 feet and 7/8 inches in height. Head hair well grown and black and having moustaches. The dead body was covered with following cothes.
(1) Sweater, house made, brown coloured with two holes, one at border 4-1/2 x 3 cm, 3-1/2 cm from the lower margin and the other 5 x 3-1/2 cm, 20 cm apart from each other and 14 cm from the neck angle of Sweater;
(2) Kamiz/kurta with a circular hole 4 x 4-1/2 cm on lower line of button collar light malatia coloured soaked with blood; and
(3) Chadar K.T. Suiting light slaty coloured also soaked with blood. Injury observed on the dead body was as follows:--
(1) A circular hole 4 x 4-1/2 cm in diameter 14 cm from umblicus and 16-1/2 cm from right nipple, 13- 1/2 cm from left nipple margins were blackened and scortched and tatooed (fire-arm entry wound) greater omentum protruding from hole.
8. On dissection below and above the injury upper side diaphragm was perforated. Pericardium was ruptured. Right atrium of heart was shattered. A few pellets were recovered from quadrate lobe middle part plastic pack of cartoos was recovered, liver was shattered, gall bladder was normal, metallic pieces were recovered from liver. Pleural cavity was full of blood and was punctured, layryc and tracea also punctured and clots of blood were found. Right and left lungs both smokal lungs. In the right lung "Gatta" was found in the left lobe third middle part. Left lung healthy and base full of blood. Right atrium of heart thrashed by gunshot injury and heart was empty. Blood vessels healthy except chest cage vessels ruptured and chest full of blood black coloured. Stomach contained semi-digested food peas and meat semi-digested food. Rest of the organs were found healthy and intact. Urinary bladder half full of urine.
9. In the opinion of the doctor the death had occurred due to excessive haemorrhage and shock caused by fire-arm injury No,1, which was sufficient to cause death in the ordinary course of nature.
This injury was ante-mortem and fatal and caused death immediately after its receipt and time between injury and death was soon after the injury and time between death and post-mortem within 16 hours. After post-mortem he handed over the dead body alongwith postmortem report, attested clothes, verified police phial and one sealed plastic pack alongwith "Gatta" to P.W.3, Khadim Hussain.
10. The accused were challaned under Section 302/34, P.P.C. To which they pleaded not guilty.
11. The prosecution examined P.W.2, Arif Hussain Ayaz Draftsman, P.W.3, Khadim Hussain F.C., P.W.4, Ishtiaq Ahmad F.C., P.W.5, Allah Ditta A.S.I. P.W.6 Habib Ahmed F.C., P.W.7 Zaka Ullah, P.W.8 Khizar Hayat and P.W.10 Muhammad Ilyas Moharrir to prove certain formal aspects of the case; P.W.1 Dr. Ghulam Sabir Sabri furnished medical testimony; P.W.9 Saif Ullah was produced to prove the recovery of gun P.4, cartridge P.5 and empty P.6 therefrom; P.W. 11 Zia Ullah and P.W. 12 Altaf Hussain son of Jehan Khan entered the witness box to give eye-witness account of occurrence as well as to prove the motive, whereas P.W. 13 Altaf Ahmad D.S.P. And P.W.14 Sardar Ali A.S.I. Summed up the case by giving details of investigation conducted by them. The P.Ws. Altaf Hussain son of Ghulam Rasul, Boota and Mukhtar Hussain were given up as being unnecessary. The prosecution tendered in evidence the report of Chemical Examiner Exh. PJ., that of Serologist Exh. P.K. And that of S.P.
Technical Services Exh.P.L. And had closed the case.
12. The statements of the accused under Section 342, Cr.P.C. Were recorded. Mushtaq Ahmad appellant pleaded that in fact Ijaz Ahmad deceased was on friendly terms with him and with his other family members and he used to visit their dera frequently. Since the deceased was fond of hunting with a gun, therefore, on the date and time of occurrence, he came to his dera with a gun belonging to his cousin, Altaf Hussain given up P.W. When the appellant wanted to get the gun from him, the deceased had put up mock resistance. The appellant was holding the gun from the butt side, whereas the deceased held it from its muzzle and in the struggle the gun went off accidentally and resulted in the death of Ijaz. He claimed that none of the witnesses were present there and the matter was brought to the notice of aggrieved family of Ijaz who after prolonged consultations and deliberations involved him and other co-accused (acquitted) in a false case. He denied having led to the recovery of gun P.4 from his residential house.
13. The acquitted co-accused had adopted the same plea. None of the accused, however, had opted to appear as a witness under Section 340, Cr.P.C. Or to produce evidence in defence.
14. The learned counsel for the appellant and the State were heard at length, and the record of the case perused with their assistance.
15. The learned counsel for the appellant submitted that the ocurrence stands admitted by both the parties but that it is the version of the defence which seems more plausible when put in a juxtaposition to that of the prosecution. Further submitted that it is in evidence that the deceased had suffered the fatal injury from a very close range and that the same was possible only if the occurrence had taken place in the manner stated by the defence. Further submitted that the learned trial Court had come to the definite conclusion that the prosecution version in respect of the manner, the mode, the motive and the number of accused was totally false. Further submitted that the learned trial Court, in fact, had believed that the occurrence had taken place in the manner pleaded by the appellant but, nevertheless, sentenced the appellant under section 304-A, P.P.C. Only on the ground that the appellant being a hunter, it was his duty to be more careful and vigilant while handling a fire arm, and that the said conviction and sentence is not sustainable in law under the attending facts and circumstances of the case. In this respect pointed out that the learned trial Court had further come to the conclusion that the appellant was not aware of the gun being loaded and as the deceased and the appellant had further been held to be friendly and experienced hunters, therefore, the negligence, if any, cannot be attributed to the appellant alone and entirely, and that the doubts so arising in rspect of the same should be resolved in favour of the appellant in accordance with the accepted principles of dispensation of criminal justice.
Therefore, argued that the prosecution had failed to prove its case beyond reasonable doubt against the appellant and further submitted that the prosecution case had to stand on its own legs to succeed but had miserably failed to do so.
16. On the other hand, the learned counsel for the State opposed the present appeal and submitted that although the appellant, alongwith the acquitted co-accused, was charged under section 302/34, P.P.C. Yet taking into consideration all the facts and circumstances of the case, as emphasised by the learned counsel for the appellant, the learned trial Court had come to the conclusion that the offence in question fell under section 304-A, P.P.C. And convicted and sentenced the appellant accordingly, as stated above; and that the said conviction and sentence does not call for any interference, being based on very well reasoned judgment. Further submitted that the appellant being an experienced hunter cannot be absolved of his admitted negligence in grappling for the gun. Further submitted that the admitted grappling for the gun has been held to amount to criminal negligence, resulting in the conviction and sentence of the appellant impugned herein.
17. The learned counsel for the parties have been heard at length and anxious consideration given to the submissions made by them, respectively. The appellant herein, although charged under section 302/34, P.P.C. Alongwith the acquitted co-accused, has been convicted and sentenced under section 304-A, P.P.C. As stated above. After duly taking into consideration all the facts and circumstances of the case, the Court has come to the conclusion that the appellant has been rightly held to be guilty of an offence under section 304-A, P.P.C. It is the case of the appellant himself that he was an experienced hunter and therefore, his grappling for the gun in question with the deceased does amount to criminal negligence. It has to be noted that the benefit of being taken unaware under the facts and circumstances as highlighted in the present case, cannot be extended to a person who, on his own admission, is an experienced and knowledgeable hunter and can be termed as a professional in handling of guns. It is expected of such a person to be aware of, and to abide by the rules of due care and caution in situations such as prevailed in the present case and his failure to do so had resulted in the death of an innocent person. The evidence on the record has established beyond doubt that the appellant had been rash and negligent in not observing the minimum precaution called for under the circumstances and, in fact, was rash and negligent enough to grapple for the gun. Therefore, the conviction of the appellant under the provisions of section 304-A, P.P.C. Is unexceptionable and the same is hereby maintained.
18. However, as it has been established beyond doubt that the deceased and the appellant were on very friendly terms and used to go out for hunting together and as the prosecution had failed to establish the motive alleged against the appellant, therefore, under the facts and circumstances of the case, the ends of justice shall be met if the sentence awarded to the appellant is reduced to the period already undergone by him but the fine and compensation are maintained.
19. Therefore, pursuant to the above discussion, the present criminal appeal is hereby dismissed, but the sentence awarded to the appellant is reduced to the period already undergone by him while maintaining the fine of Rs,10,000 or in default thereof further R.I. For two years; and the compensation of Rs,10,000 awarded to the legal heirs of the deceased or six months' R.I. In default thereof is also maintained.
20. In accordance with the terms stated above, the present criminal appeal is hereby dismissed.
Sentence reduced.