ALI MUHAMMAD Versus STATE

1. This appeal is directed against the judgment, dated 4‑10‑1994, passed by the learned Sessions Judge, Nawabshah, whereby the appellant has been convicted under section 319, P.P.C. in Sessions Case No.58 of 1992 (State v. Ali Muhammad) under sections 304‑A, 320, P.P.C. registered at Police Station Bachalpur as Crime No.48/92 and sentenced him to undergo R.I. for one year end also to pay Rs.25,000 as Diyat to the legal heirs of the deceased and in default thereof to suffer further R.I. for one year.

2. Briefly stated the facts, which give, rise to this appeal are that on 27‑2‑1992 the complainant S.I.P. Gul Hassan Gujar lodged the F.I.R. at 4‑00 hours to the effect that on 26‑2‑1992 at 5‑20 p.m. he alongwith his subordinate staff having service weapons went for patrolling and after reaching at P. P. Aliabad he dropped P.C. Abdul Jabbar, P.C. Ali Muhammad and P.C. Shahmir Khan as their duty was in the second shift for patrolling. Thereafter, they proceeded for patrolling. After patrolling they again reached at P. P. Aliabad when complainant asked H.C. Ghulam Shabir for patrolling in the second shift. They alighted from the vehicle and P.C. Ali Muhammad boarded the same vehicle. P.C. Abdul Jabbar was standing by the side of the said vehicle. At about 0‑15 hours, G‑3 rifle of P.C. Ali Muhammad suddenly went off which hit PC Abdul Jabbar. Thereafter they took the injured to Kazi Ahmed Hospital, but he succumbed to his injuries. Then the complainant informed the above facts to S. D. P.O., Daulatpur on wireless, who arrived at the Wardat and directed the complainant for registering the case against P.C. Ali Muhammad. After usual investigation, the accused was challaned and the charge under section 320, P.P.C. was framed, to which he pleaded not guilty.

3. In support of its case, the prosecution examined P.W.1 Dr. Haji Sahibdino (Exh.5), who produced post‑mortem notes as Exh.5/A, P.W.2 P.C. Muhammad Moosa (Exh.6), P.W.3 P.C. Shahmir Khan (Exh.7), P.W.4 complainant S.I.P. Gul Hassan Gujar (Exh.l l) who produced F.I.R. Exh.l l/A, Mashirnama of Wardat Exh.II/B. Mashirnama of arrest ‑of accused Exh.II/C and inquest report Exh.ll/D, and D. W.5 P. C. Nooruddin Butt (Exh.13). The learned A.P.P. gave up P.Ws. Muhammad Hayat, Bhaledino as Exh.8 and P.C. Yar Muhammad and H.C. Ghulam Shabir as Exh.9 and closed his side vide his statement as Exh.14.

4. Accused in his statement (Exh.15) recorded under section 342, Cr.P.C. has stated that he is innocent and the P.Ws. have deposed falsely against him. He further stated that on the date of incident, he was sitting in the police vehicle in the rear portion having his service rifle on his knees. Other police staff was standing nearby the vehicle, but all of a sudden the vehicle started and his rifle fell down and shot was fired automatically which hit deceased Abdul Jabbar. He further stated that it was not due to his negligence. In support of his case, he examined himself on oath (Exh.16) and D.W. P.C. Yar Muhammad as (Exh.17).

5. That vide judgment, dated 4‑10‑1994, the learned Sessions Judge, Nawabshah, determining the following points, convicted the appellant under section 319, P.P.C. to undergo R.I. for one year and to pay a sum of Rs.25,000 as Diyat to the legal heirs of the deceased and in default thereof to suffer R.I. for one year more. Hence this appeal: ‑‑

(1) Whether deceased Abdul Jabbar died because of fire‑arm injuries?

(2) Whether due to rash and negligent act of the accused Abdul Jabbar was killed?

(3) What offence, if any, the accused has committed?

6. I have heard Mr. Shoukat Hussain Zubedi, Advocate for the appellant and Mr. Habib Ahmed for the State.

7. The death of P.C. Abdul Jabbar with fire‑arm injury is not disputed. It is also not disputed that P.C. Abdul Jabbar died from the fire from the G‑III Rifle of the Appellant P.C. Ali Muhammad. The main point which goes to the very root of the case is as to whether it was due to mistake of act or mistake of fact or a simple accidental one.

8. Mr. Shoukat Hussain Zubedi, the learned counsel for the appellant assailed the impugned judgment on the following grounds: ‑‑

(i) that no ingredients of section 318, P.P.C. are available as such there can be no conviction under section 319, P.P.C.;

(ii) that the death of P.C. Abdul Jabbar was purely and simply an accidental and falls within the provisions of section 80, P.P.C. as such no offence is committed;

(iii) that if the prosecution case and that of the defence are kept in juxtaposition, the defence case appears to be more probable, which is to be accepted.

9. The learned counsel for the appellant argued that the ingredients of section 318, P.P.C. are not available in the commission of the alleged offence as such there can be no conviction under section 319, P.P.C. He contended that there is no evidence to the effect that the appellant caused death of P.C. Abdul Jabbar, either by mistake of act or by mistake of fact, as required under section 318, P.P.C. He also contended that the G‑III Rifle of the appellant was lying on his knees, while he was sitting in the vehicle, while his other companions including the deceased P.C. Abdul Jabbar had not yet boarded and were standing near the vehicle. In the meantime, all of a sudden the driver started the vehicle and due to jerk his Rifle fell down and automatically fired which hit deceased P.C. Abdul labbar. The appellant had not pressed the trigger of the Rifle, as such there is no act attributable to the appellant in the said fire which hit the deceased. It is an admitted position that apart from the appellant, no body else including the eye‑witnesses were sitting in the vehicle, as such it is very difficult to say that the appellant pressed the trigger of his Rifle negligently or otherwise, because no body had any chance to see that act of the appellant. Admittedly there was no enmity between the appellant and the deceased as such there is neither any motive nor intention to cause death of P.C. Abdul Jabbar by the appellant with his Rifle. Lastly he contended that if the prosecution story is put in juxtaposition with the defence version, there appears a great probability in the defence version, which, as of his contentions, he relied upon (1) Chandoo alias Chand Muhammad v. The State PLD 1985 Kar. 229, (2) Muhammad v. Ghaus and 4 others 1972 SCMR 264, (3) The State v. Manzoor Ahmad PLD 1966 SC 664, (4) Mushtaq Ahmed and others v. The State 1991 SCMR 2270, (5) Qurban Ali v. The State 1986 PCr.LJ 626.

10. Mr. Habib Ahmed learned counsel for the State supported the impugned judgment and argued that the Diyat amount should be enhanced from Rs.25,000 to the value of 30,630 Gins of silver.

11. I have considered the valuable arguments of both the learned Advocates and with their assistance have gone through the entire record and after having applied my judicious mind I have reached to a conclusion that the evidence and the circumstances of the case reasonably show that the deceased was accidentally hit from the fire of the appellant's G‑III Rifles, which fell down due to jerk caused by the start of the vehicle, all of a sudden, and there was no element of criminal intention or mistake of act or mistake of fact at the part of the appellant, but it was simply an accidental one. When the prosecution story and the defence version are kept in juxtaposition, the defence plea appears to be more probable. It is settled law that when two possibilities are available the one favorable to the accused is to be adopted and acted upon.

12. Under the above circumstances, I am clear in my mind and satisfied that the death of P.C. Abdul Jabbar was an accidental one and the accused/appellant is protected under section 80, P.P.C. and the result is that the appeal is accepted and the conviction and the sentence passed by the learned Sessions Judge, Nawabshah is set aside, giving benefit of doubt to the appellant. The appellant shall be released forthwith, if not required in any other custody case.

13. N.H.Q./A‑1614/K Appeal accepted.