P L D 2000 Lahore 425 (PLP)

The necessary facts giving rise to the present appeal are that at about 6=00 p.m. on 15‑7‑1994 one Zia Ullah Naeem died at the hand of the' present appellant and his 11 co‑accused in the area of Village Bharoke Cheema, Tehsil Wazirabad, District Gujranwala when a police party was chasing him and others in connection with arrest of a proclaimed offender. F.I.R. 173 was lodged in that regard by Sana Ullah complainant, a brother of Zia Ullah Naeem ‑deceased, at 10‑00 p.m. on the same night for offence under section 302/148/149, P.P.C.

2. After completion of investigation a challan was submitted by the police against all the 12 accused persons including the present appellant. Two of the accused persons had absconded and, therefore, their case was separated by the learned trial Court and a charge under section 302/148/149, P.P.C. was framed by the learned trial Court against the present appellant and his 9 co‑accused. During the trial the prosecution produced as many as 16 witnesses in support of its case against the appellant and his co‑accused. In their statements recorded under section 342, Cr.P.C. the appellant and his co‑accused had maintained that the death of the deceased had not been caused intentionally and that the same had come about through sheer accident when a rifle carried by, the, present appellant had gone. off accidentally hitting the deceased at his head. The appellant and his co‑accused had neither made any statement on oath under section 340(2), Cr.P.C. nor had they produced any evidence in their, defence.

3. At the conclusion of the trial the appellant was convicted for an offence under section 319, P.P.C. by the learned Additional Sessions Judge, Wazirabad, District Gujranwala vide judgment dated 11‑12‑1999 and was sentenced to imprisonment for five years and to pay an amount of Rs.2,50,000 to the heirs of the deceased by way of Diyat. The remaining 9 accused persons being tried by the learned trial Court were, however, acquitted of the charge against them. Munir Ahmad appellant has challenged his conviction and sentence before this Court through the present appeal.

4. I have heard the learned counsel for the appellant as well as the learned Additional Advocate‑General appearing for the State and have gone through the record with their assistance.

5. At the outset learned counsel for the appellant has maintained that upon the findings recorded by the learned trial Court a conviction could not be recorded against the appellant for an offence under section 319, P.P.C. According to the learned counsel for the appellant the learned trial Court had come‑ to the conclusion that the deceased had met his death through an accident and, therefore, the appellant had not committed any offence at all. The learned Additional Advocate‑General has remained unable to controvert the said submissions of the learned counsel for the appellant and he has also pointed out that the State has not challenged the said findings of the learned trial Court through an appeal or other proceedings.

6. After hearing the learned counsel for the parties and going through the record it has been noticed that in paragraph No. 16 of its judgment dated 11‑12‑1999 the learned trial Court had arrived at a definite conclusion that the rifle held by Munir Ahmad appellant, who was a police constable actively engaged in chasing some persons for the purposes of apprehending a fugitive, had gone off accidentally and such an accidental shot fired from his rifle had hit the head of the deceased resulting in the latter's death. The learned trial Court had also categorically concluded that the appellant had not intentionally committed the murder of the deceased. Such findings of the learned trial Court have not been assailed by the State through any appeal or any other proceedings before any Court or forum. Thus, the only question calling for detertnination before this Court is whether the law had correctly been applied by the learned trial Court to the said findings and conclusions arrived at by it.

7. A bare reading of the provisions of section 318, P.P.C. shows that an offence of Qatl‑e‑Khata is committed when a person causes the death of a person without any intention to cause his death or to cause harm to him either by mistake of act or by mistake of fact. Two illustrations mentioned in the provisions of section 318, P.P.C. show that in order' to attract the said provisions there has to be a deliberate act on the part of the accused person to do one thing but because of a mistake of act or of fact the end result of such an act is different from that intended by the accused person. As against that the provisions of section 80, P. P.C. clearly provide that nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in doing a lawful act in a lawful manner by lawful means and with proper care and caution. The facts of the present case as found by the learned trial Court show that the appellant had not used his rifle and had not fired any shot therefrom by design or with an intention to do so. According to the learned trial Court itself the rifle of the appellant had gone off accidentally. Thus,, in the peculiar circumstances of this case the learned trial Court was not justified in invoking the provisions of section 319, P.P.C. against the appellant when the case against the appellant was fully covered by the provisions of section 80, P.P.C. as already mentioned above, an act committed by accident or misfortune does not constitute any offence at all. There is nothing available on the present record to show that the appellant had not used proper care and caution in that regard.

8. For what has been discussed above the present appeal is allowed, the impugned judgment passed by the learned Additional Sessions Judge, Wazirabad on 11‑12‑1999 is set aside, the conviction and sentence recorded against the appellant by the learned trial Court is also set aside and the appellant is acquitted of 'the charge against him. The appellant shall be released from the jail forthwith if not required in another case. Q.M.H./M.A.K./M‑101/L Appeal allowed.