' Appellant Siddique Ahmad was tried for the murder of Shamas-udDin and vide his judgment dated 27-2-1990 the learned Additional Sessions Judge, Rahimyar Khan had convicted and sentenced the appellant under section 302, P.P.C. To undergo imprisonment for life and a fine of Rs,20,000 in default whereof to suffer further R.I. For 2 years. The amount of fine, if realized, fifty per cent. Of it, was directed to be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was also extended to the deceased.
2. Briefly the prosecution case is that P.W. 1 Allah Wasaya, father of the deceased on 22-1-1986 at 1- 20 a.m. (night) at Nishtar Chowk, Sadiqabad made statement Exh. PA before Muhammad Siddique, S.I. (P.W.11) on the basis of which formal F.I.R. Exh. PA/1 was recorded by P.W. 4 Asghar Ali, ASI to the effect that he was residing in Basti Latki of Mauza Goath Jhora, Tehsil Sadiqabad alongwith his .Deceased son Shamas-ud-Din who for the last months, was working as a mechanic at Sanghara Oil Mills, Sadiqabad. At night the deceased used to work in the mill and during day time he was working as a tailor in Rail Bazar. On the night of occurrence, P.W. 1 was sleeping in his house, when Ghulam Sarwar P.W. (not produced) and Usman (P.W. 6) reached on a motor-cycle at about 12 o'clock (night) and told that they were informed by Muhammad Hussain (P.W. 2) that Shamas-ud- Din deceased had been killed by Siddique Ahmad appellant by firing at him with a .12 bore single barrel gun. The fire had hit on the left side of his chest. On this information, P.W. 1 Allah Wasaya alongwith Allah Jawaya and Habib Ullah (not produced) and other residents of the village reached the Oil Mills, where Liaqat Ali, Khuda Bakhsh, P.Ws. (not produced), Allah Bachaya (P.W.3) and Abdul Majid P.W. (not produced) were present and they had verified the statement of Muhammad Hussain (P.W.2) and besides them, Fazal Din Chowkidar (P.W.5) stated that he had handed over his gun to the appellant and by the fire of the said gun the deceased was murdered. It was further revealed that the said gun was owned by Abdul Majid P.W. (not produced) and was unlicensed.
Leaving behind Allah Jawaya, Habibullah P.Ws. (not produced) and others to guard the dead body.
P.W. 1 proceeded to the police station and on the way P.W. 11 Muhammad Siddique, S.I. Met him and he made his statement before the S.I. The appellant was challaned and sent up for trial. A charge under section 302, P.P.C. Was framed against the appellant, to which he denied and claimed trial.
3. The prosecution examined 13 P.Ws. In all to substantiate its case. Allah Wasaya (P.W. 1) is the complainant, father of the deceased, who narrated the facts mentioned by him in his complaint Exh. PA, on the basis of which formal F.I.R. Exh. PA/1 was recorded. P.W. 2 Muhammad Hussain, P.W. 3 Allah Bachaya and P.W. 5 Fazal Din Chowkidar are the eye-witnesses of the present occurrence, who stated that at about 10-00 p.m. They were present in the mill. The deceased was standing when the appellant arrived there armed with a gun and fired on the deceased's chest within their view. The deceased fell down and succumbed to his injuries at the spot. The owner of the mill, Abdul Majid P.W. (given up) also reached there.
4. P.W. 2 Muhammad Hussain had witnessed the recovery of empty P.1 which was secured by P.W. 11 vide memo Exh. PB attested by him and Allah Bachaya (P.W.3). P.W. 6 Muhammad Usman had witnessed the recovery of gun P. 2 which was secured by P.W. 11 Muhammad Siddique, S.I. From the accused vide memo Exh. PC. Attested by P.W. 6 and Khuda Bakhsh P.W (given up).
5. P.W. 13 Dr. Muhammad Alam had conducted autopsy on the dead body of Shamas-ud-Din deceased on 22-1-1986 and found one wound of entrance of fire-arm 2.5 c.m. x 2.5 c.m. On the right side of chest along the medial side of areola of right breast. Wound margins were lacerated, inverted and slightly burnt. Clotted blood was present in the wound. Underlying right 3rd rib on its anterior and was fractured. Wound was going backwards deep into the chest. In his opinion, the death occurred by haemorrhage and shock due to injury to the right lung caused by fire-arm, which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and caused by fire-arm. The death was instantaneous and probable time between death and post-mortem examination was 9 to 24 hours.
6. P.W. 11 Muhammad Siddique is the Investigating Officer who on 22-1-1986 at about 1-00 a.m.
(night) was present in Nishtar Chowk, Sadiqabad on patrol duty, where P.W.1, Allah Wasaya met him and made his statement Exh. PA which was reduced into writing by him and thumb-marked by P.W.1 in token of its correctness. He reached the place of occurrence. The dead body was lying at the spot. He prepared injury statement Exh.PE, inquest report Exh.PF and despatched the dead body to the mortuary. The appellant was also present there, who was produced before him alongwith the gun. He took into possession gun P.2 from the appellant which was made into a sealed parcel vide memo Exh.PC. He inspected the spot and secured blood-stained cottonseed and also secured an empty cartridge P.1, made those into sealed parcels and secured the same vide memo Exh.PB.
He recorded the statements of the P.Ws and completed the other formalities when further investigation was carried out by P.W.12 Irshad Akhtar Gulab, Inspector/S.H.O., who had partly investigated the case, recorded the statements of P.Ws. Prepared the interim challan of the case and submitted the same in the Court. The other P.Ws. Are more or less of the formal nature.
7. The appellant when examined under section 342, Cr.P.C. Made denial simpliciter. He had not produced evidence in defence.
8. I have heard the learned counsel appearing for the appellant and the State and have perused the record. It has been vehemently contended by the learned counsel for the appellant that there was no motive behind the occurrence. The appellant and the deceased were friends and had good relations. The deceased's duty was to start from 12 o'clock (night) onward whereas he had reached the mill premises at 8-00 p.m. He had meals with the appellant. Being friends they used to live in one room and also used to take meals together and on the fateful night they had been chatting, gossiping and no untoward incident had taken place. They had no altercation or quarrel whatsoever, P.W. 2 Muhammad Hussain, eye-witness during cross-examination has stated that the appellant and the deceased hand no dispute. They used to take meals together. They continued sitting together for about 2-1/2 hours on the night of occurrence. P.W.2 also stated during cross- examination that he had heard the gun report, but did not see the fire. He was on duty on the floor.
P.W.2 also stated that after 10 minutes of arrival of the deceased P.W.5 Fazal Din had also reached there with the gun P.2 and also sat near the appellant and the deceased.
9. The prosecution has not brought on record any motive behind the occurrence, enmity between the appellant and the deceased, any altercation or use of abusive language between them or immediate cause of firing by the appellant on the deceased. P.W.2 also stated during cross- examination that till the occurrence the deceased and the appellant had very cordial relations.
10. The learned counsel for the appellant also urged before me that the appellant was handed over gun P.2 by P.W.5 Fazal Din Chowkidar as it is evident from the contents of the complaint Exh. PA, on the basis of which formal F.I.R. Exh. PA/1 was recorded and the appellant had no knowledge that the gun was loaded and he just aimed at the deceased with a joke and had pressed the trigger, resulting in the fire which caused immediate death of the deceased. The appellant neither during cross-examination of the P.Ws. Nor in his statement under section 342, Cr.P.C. Had raised the plea that the fire was accidental. The appellant also had not urged the same before the trial Court during the arguments. No doubt an accused can raise as many pleas as he likes, but the Court has to see that if any plea, even not raised by the accused favourable to him, is spelt out from the evidence on record and the circumstances appearing in the case. The appellant remained present at the spot after the occurrence and P.W.11 Muhammad Siddique had arrested him therefrom and also secured gun P.2. The appellant just after his arrest at the spot had stated before P.W. 11 Muhammad Siddique, S.H.O. That he was serving in the Sanghara Oil Mills and was residing in a small room in the mill premises. The deceased had joined the service of the mill about 3/4 months earlier to the present occurrence and was working in the Mill. His duty used to start from 12 o'clock (night) to 8-00 a.m. The deceased was fast friend of the appellant and usually in the evening he used to bring meals from his house for the appellant and they used to take the same together. On the fateful night they had taken meals at about 7.00 p.m. And continued talking till 10/11.00 p.m. And the appellant thought of cutting joke with him. P.W. 5 Fazal Din Chowkidar also reached there, from whom the appellant got the gun and went on the platform, where Shamas-ud-Din deceased was at work. The appellant did not know that the gun was loaded and just to cut a joke with the deceased he pointed the gun towards him and pressed the trigger and the fire was hit on the chest of the deceased, who fell down. The appellant was apprehended at the spot by the P.Ws. And the deceased had succumbed to his injuries there and then. He had further stated that while cutting joke the fire was made and the deceased was done to death. The appellant had no enmity with the deceased.
11. It is the duty of the prosecution in a case of death caused by injuries from fire-arm, to prove that the firing was intentional or voluntary, but also that the firing was prompted by any such intention or knowledge as is mentioned in section 300, P.P.C. If either of these ingredients is not proved, the offence committed is not murder, whatever else it may be. The appellant was tempted to play a joke with the gun, held it and pressed its trigger without taking a precaution of seeing that it was empty or not and caused the death of the deceased.
12. On an examination of this case and the evidence on record I consider that the plea of accidental firing raised by the appellant before this Court may reasonably be true. In fact the facts and circumstances can only be explained on the hypothesis. He had no motive to cause the death of the deceased. The appellant was tempted to play a joke with the gun when he pressed its trigger. In doing so he did not have the intent necessary for an offender under section 302/304, P.P.C. It is probable that he did not know that it was loaded. He is, therefore, entitled to an acquittal of the charge under section 302, P.P.C.
13. The conduct of the appellant, in my view, was all the same grossly negligent in pulling the trigger of the gun without seeing that it was loaded. Before pulling the trigger, he should, as a reasonable man, have seen that the gun was empty. He should have opened it before pulling the trigger especially when he was pointing it towards the deceased. The learned counsel appearing for the appellant has frankly conceded that the act of the appellant was negligent, as even though he pulled the trigger of the gun with its face towards the deceased, he did not know that the gun was loaded. It is also argued that the appellant had belief that the gun was empty and if he fired, he could not be deemed guilty of culpable negligence. The appellant has not stated that he believed the gun to be empty, but even if he did so it was his duty as a prudent man that it was empty before pulling its trigger and pointing the same towards the deceased.
14. Pulling the trigger of a gun without taking the precaution of seeing that it was empty, was a gross and culpable negligence especially when it was pointed in the direction of the deceased.
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 person 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. He is convicted under section 304-A, P.P.C. He has been suffering the agony of trial since 1986. He has been in jail as under trial and convict for the last six years. I am of the view that the period already undergone by the appellant as under-trial and convict alongwith a fine of Rs,20,000 which if realised, whole of the same shall be paid to the legal heirs of the deceased, and in default of payment of fine, to suffer 2 years' R.I, shall meet the, ends of justice. The appellant shall deposit the fine within one month in the trial Court. .