Z. A. CHANNA , J.-These two appeals are directed against two separate judgments delivered by a learned Additional Sessions Judge, Jacobabad. On 27-10-1977, whereby he convicted the appellant of offences under section 302, P. P. C. And 13(e) of the West Pakistan Arms Ordinance, 1565, and for the former offence sentenced him to transportation for life and also to a fine of Rs. 1,500 or in default to undergo R.
1. For 6 months, and for the latter offence to undergo R.
1. For one year and also to pay a fine of Rs. 500 or in default to undergo R.
1. For 3 months. Ws have, by our short order passed on 24-1-1978, altered the convictions and sentences of the appellant from transportation for life and a fine of Rs. 1,500 under section 302, P. P. C. To the imprisonment already undergone and a fine of Rs. 1,000, in default to undergo R. I. For 6 months, under section 304-A, P. P. C., and to the imprisonment already undergone and a fine of Rs. 1,000 for the offence under section 13(e) of the Arms Ordinance. We now proceed to give reasons for our said order.
2. The prosecution case is that on 9-10-1974, at 11 a.m., appellant Shahzado is alleged to have taken deceased Nabi Bux to the house of one Khalil Ahmed, a Tapedar, near the.Police Headquarters, at Jacobabad, and there shot him with a revolver because Nabibux had refused the demand of the appellant to develop friendship with Khalil Ahmed. The incident is said to have been witnessed by Imdad Ghanjo and Abdul Sattar. The latter informed Khuda Bux, the father of deceased Nabibua:, and also told him that he had got Nabi Bux admitted in the Civil Hospital. Kbudabux thereupon proceeded to the Civil Hospital where he found his son, Nabibux, lying in an unconscious state. He thereafter, proceeded to the City Police Station, Jacobabad, where he lodged his first imformation report at 1 p.m.
3. The investigations in this case were conducted by A. S. I. Sadiq Hussain Shah. After recording the F. I. R. Of Khudabux, he proceeded to the Civil Hospital, Jacobabad, but found that injured Nabibux was uncon--scious and was unable to make a statement. The A. S. I. Also found the appellant at the Civil Hospital and on the information furnished to him by Abdul Sattar he arrested the appellant. The appellant was found to be wearing blood-stained shirt and shalwar which was secured by the A. S. I. In the presence of Mashirs. On the same day, the A. S. I. Recorded the state-- ments of P. W. Abdul Sattar. Thereafter, the appellant is said to have led the A. S. I. And Mashirs to the place of incident, namely, the house of Khalil Ahmed, and at the pointation of the appellant the police is said t,- , have recovered a revolver, containing one empty bullet and 4 live bullets, from tile roof of the house. The A. S. 1. Then inspected the scene of offence from where he recovered blood-stained earth. On the following day, namely, 10-10-1974, the appellant was produced before the A. D. M., Jacobabad, who recorded his judicial confession. On 15-1-1975, the appellant was challaned in the two cases of murder and using a fire-arm for which he had no licence.
4. Injured Nabibux died at the Civil Hospital, Jacobabad, on the very day of the incident at 8-45 p. m. Post-mortem on him was conducted on the following day at 10 p.m. By Dr. Moolchand, Medical Officer of the Civil Hospital. On external examination he found the following injury :- "A lacerated punctured type of wound 1/4" in D. M. x skull cavity deep below right eye with right eye swollen. Blood clots present in nose and mouth. Right cheek was also swollen 2" x 2'' in diamension as a wound of entrance."
5. On internal examination the Medical Officer found that the base of skull of the deceased was fractured, his membrane was punctured, the brain was lacerated and haemorrhage was present in the anterior and middle fossa of the skull on both the sides. It was further found that the blood vessels at the site of the injury were injured and the mouth and pharynx were full of clotted blood.
In the opinion of the Medical Officer, the death of the deceased was the result of the aforesaid injury which had been caused by a discharge from a fire-arm. According to him, the time between the death and the injury was within twelve hours and the time between the death and post-- mortem was 13 hours and 45 minutes.
The appellant, in his statement under section 342, Cr. P. C., denied the prosecution allegations. As regards the judicial confession, he stated that his mother and sisters were bought by the police at the police station where he was beaten by the police to confess his guilt and under those circumstances he was forced to make the confession which was not voluntary.
7. The prosecution have sought to establish their case against the appel--lant through 3 pieces of evidence, namely :- (i)ocular evidence ; (ii)recovery of revolver at the pointation of the appellant ; and (iii)the judicial confession made by the appellant.
8. Now, as regards the ocular evidence, though the incident is stated to have been witnessed by two witnesses, namely, Nabibux and lmdad Ganjho, only Nabibux was examined. This witness, however, has not supported the prosecution case at all and on the contrary stated that while he alongwith the appellant and P. W. Imdad were coming from their hotel behind the Mukhtiarkari, they heard a blast from the side of the otak of Khalil Ahmed and on going there saw deceased Nabibux lying injured and unconscious on the cot inside the house, whereupon they all took him to the hospital. He was accordingly declared hostile witness by the learned A. P. P. Incharge of the case and was confronted with his section 164, Cr. P. C. Statement, wherein he bad incriminated the appellant. He, however, stated that section 164 statement was made by him under Police pressure and it was only when he made the statement he was let off by the police.
9. The next piece of evidence against the appellant is his judicial con--fession which was recorded by Mr. Majno Khan, who was then Additional Deputy Commissioner, Jacobabad. This confession was recorded on the very next day of the incident after due formalities and after the appellant was given time for reflection for 2J hours. The material part of the confession reads as follows :- "I was not given any threat or promise. I am prepared to make the confession of my own free-will.
Question.-What have you to say ?
Answer.-Tapedar Khalil Ahmad is my friend. Deceased Abdul Nabi Wagho was also our friend. Khalil Ahmed Tapedar had told me that I should ask Abdul Nabi, so that he may develop friendship with him. I told Abdul Nabi, who refused. Yesterday in the morning at 8 a.m. Khalil Ahmed told me at the hotel of Momin near wood-stall (saw-- machine) that I should take Abdul Nabi to his house and show him a pistol there, so that he may be afraid arid may develop friendship with him. Khalil kept the revolver and he himself went to the village. I took Abdul Nabi to the house of Khalil at 9 a.m. Or 9-30 a.m. Abdul Sattar son of Mughal and Imdad A.I Ghuno Tongawala, were also with us. We all the 4 sat in the 'otak' of Khalil. Revolver was hanging in the 'otak'. I took that revolver and did not find whether it was loaded or not. I aimed the revolver at him and thereby frightened him. All of a sudden, my finger touched the trigger, as a result of which the bullet shot hit Abdul Nabi below his right eye. Khalil Ahmed had given my key of that 'otak'. Thereafter, Abdul Nabi fell down, on receiving bullet shot. Thereafter, Imdad brought a tonga and there-- after, he went away. I and Abdul Sattar took Abdul Nabi to the hospital in tonga. I threw away the revolver at the roof.
Thereafter, I and sister's husband of Abdul Nabi went to city police station and narrated the facts there. Thereafter, police accompanied us to the Hospital. I was arrested after further investigation.
Thereafter, I went alongwith the police and produced the revolver."
10. The confession stands corroborated by the medical evidence as well as the recovery of the revolver at the instance of the appellant. The medical evidence, to which we have already ,referred, shows that the death of the deceased was the result of a shot from a fire-arm. Looking to the dimensions of the injury found on the deceased, we are satisfied that the fire-arm was of the type from which a bullet could be fired. The judicial confession is further corroborated by the recovery of a revolver. A. S. I. Sadiq Hussain has stated that on the very day of the incident, shortly after he had arrested the appellant, the latter, on being interrogated by him, led the police and the Mashirs to a quarter near the Police Headquarters and from the roof of the house produced a revolver loaded with one empty bullet (shell) and 4 live bullets. No doubt, one of the Mashirs, in whose presence the revolver was recovered. By name Lal Muhammad, has not supported the prosecution case and stated that in his presence nothing was recovered from the house near the Police Headquarters where he was taken by the police nor was any pistol recovered from the appellant and on the contrary stated that the police had recovered the pistol from an unknown person. The second Mashir was given up by the learned A. P. P. Incharge of the case on the ground that he had been won over. However, we see no reason to doubt the testimony of the A. S. I. On the point of the recovery of the revolver, specially, as the appellant himself, in his judicial confession, has admitted that he had produced the revolver before the police. This piece of evidence thus lends very strong corrobora--petition to the confession.
11. There is also evidence of the fact that the clothes of the appellant, at the time of his arrest at the Civil Hospital, soon after the lodging of the F. I. R. Were found stained with blood, which, according to the report of the Chemical Examiner, was of human origin. This piece of evidence lends further support to the confession wherein the appellant has stated that he and Abdul Sattar took the injured to the Civil Hospital after the injured was hit by the bullet.
12. 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 him 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, A 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.
13. For the reasons stated by us above, we would alter the conviction of the appellant from under section 3()2, P. P. C. To under section 304-A, P. P. C. So far as his conviction under section 13(e) of the West Pakistan Arms Ordinance, 1965, is concerned, we would maintain the same as admitted-- ly the appellant had no licence for a revolver and we are satisfied that he used the same.
14. There remains the question of sentence to which we have given careful consideration Mr. Azizullah Shaikh, the learned counsel for the appel--lant, submitted that the appellant was a student and had passed the Interme--diate Examination, in support of his contention, the learned counsel produced B before us a photostat copy of the certificate from the Board of Intermediate and Secondary Education, showing that the appellant had passed the Inter--mediate Examination.
The learned counsel also submitted that in 1973, when the offence was committed by the appellant, he was hardly 16 years of age. The appellant was admittedly a friend of the deceased and after the incident he took prompt action in attempting to save the life of his friend, by taking him to the hospital. Furthermore, the appellant has undergone the agony of along and protracted trial, lasting for over 4 years. In addition, the appellant has already undergone a part of his sentence, exceeding 5 months. Taking all these circumstances into consideration, we have considered that the ends of justice would be satisfied by sentencing the appellant to the imprisonment already undergone and a fine of Rs. 1,000 or in default R. I. For months for the offence under section 304-A, P. P. C. And the imprisonment already undergone and sentence of a fine of Rs.
1,000 or in default to undergo R. I. For 6 months for the offence under section 13 (e) of the Arms Ordinance, 1965.