P L D 1959 (W (PLP)

Ijaz Ali, O. S. D. for A. G. for Respondent. Swab Gul, a foot constable in the border police, has been sentenced to five years' rigorous imprisonment under section

304. P. P. C., for causing the death of foot constable Taj Ali of the border police by firing at him with a revolver on 21st December 1957, at 12‑20 p.m., in the Kurar Border Police Post. He has

2. The prosecution case is that on 21st December 1957, at 5‑45 a.m., Da Khan (P. W. 2), Taj Ali deceased, Hayat Muhammad (P. W. 3) and Swab Gul appellant went out on patrol with arms and ammunition issued to them. In their absence from the post, Malik Sultan Alain S. I. (P. W. 10) rime back from duty at 9‑15 a.m. and placed his revolver Exh. P. 1, which was a part 'of his equipment, in the armoury. At about 12‑20 p.m. Swab Gul appellant, Taj Ali deceased, Da Khan (P. W. 2) and Hayat Muhammad (P. W. 3) came back to the Kurar Border Police Post. Sultan Alam, who was the platoon commander, entrusted the key of the armoury to Da Khan (P. W. 2) and asked him to check the arms and ammunition of the persons who had gone out on patrol with him and to put them in the armoury and return the key. Taj Ali placed his rifle in the armoury, came out of the door and stood there. Da Khan was standing outside the armoury on one side of the door. Swab Gul was inside the armoury. He took out the Sub‑Inspector's revolver, which was in a case, of which the button was not duly fastened. He pulled its trigger. It went off and the bullet hit Taj Ali deceased in the head. The latter fell down at a distance of three or four paces from the door of the armoury. Da Khan (P. W. 2) and Hayat Muhammad (P. W. 3) rushed to the armoury and saw the appellant holding the revolver. On enquiry, he stated that the revolver had gone off accidentally. He opened the chamber of the revolver and the cartridges fell from his hand. One of them was empty and the remaining three were live. The appellant put the revolver in the case, placed' it on a box lying in the armoury, and came out. Malik Sultan Alam, S. I. (P. W. 10), who was the platoon commander, also came up. The deceased was placed on a cot and carried towards the hospital. On the pucca road near Sahalia Station the deceased died. His body was detained there and a message was sent to Sultan Alam P. W. that Taj Ali had died. The latter came and the body was carried back to the border police post. Snab Shah Inspector Incharge (P. W. 1) reached the border police post and started enquiries into the incident. He recorded the report Exh. P A., and sent it to Police Post Suchet Garh where it reached at 7‑30 p.m. The case was formally registered at Police Station Sadar, Sialkot at 9 p.m., vide Exh. P. A. 1.

3. Sheikh Abdur Rashid A. S. I. (P. W. 4) met the border police party carrying the dead body near village Sabalia, prepared the injury statement Exh. P. E., and the inquest report Exh. P. D., and sent it to the mortuary for post mortem. The post inortem on the dead body was performed by Dr. G. M. Rizvi (P. W. 9), at 12 noon on 22nd December 1957, who found the following injuries on his person :‑

1. A circular wound 3/8" with inverted margins directed from back to front side leading into skull cavity through a hole in the bone, i.e., that a bullet wound with evidence of bleeding from it. This was the wound of inlet. No wound of exit was seen. No other mark of injury was noted on the body. On everting the scalp from the skull there appeared an irregular hole in the occiput bone of his head opposite the inlet wound in the skull. It was half an inch in diameter through which some blood and brain matter was seen to have come out from the skull cavity. Two irregular cracks in the bone were seen extending from the hole for about a length of ". On opening the skull the membranes of the brain were seen full of blood and the brain was seen bathed in blood. The membranes of the brain were seen ruptured against the inlet wound. A bullet was seen located in between the two hemispheroes of the brain by having passed through the right preduncle of brain and lacerating the medulla on right side. There were signs of semen discharge from urethra on the scrotum. Death in his opinion was the result of shock and bleeding due to the bullet injury in his skull and brain by a firearm. The bullet which was removed from the skull cavity was placed in a phial, sealed and handed over to the police. There was no burning or blackening of the scalp at or around the inlet wound which showed that the bullet was fired beyond six inches distance. The nature of injury was fatal. The probable time that elapsed between injury and death was about few hours and that between death and post mortem was about 24 hours. Exh. P. W. 9/A is the correct carbon copy of his medico‑legal report and is correct.

4. The appellant denied the charge but admitted that he was employed as a constable and posted at the Border Police Post Kurar, that he went out on patrol duty on that day, that he placed his rifle in the armoury, that he removed the revolver Exh. P. 1 of Sultan Alam (P. W. 10) from the holster and fired a shot which hit Tai Ali. He gave the following account of the occurrence :‑ "The button of the holster was not fastened. With a view to fasten it, I took out the revolver Exh. P. 2 and accidentally my finger worked at the trigger which was in a position of fire. The hammer went off by my accidentally pulling the trigger and the revolver was fired. I was looking towards the ceilling when I smelt of a gun fire. I then looked towards Taj Ali and found him dead. I was so much perplexed that I opened the revolver, threw down the three live cartridges and an empty and threw it on the box. I wanted to close it but I became so much out of senses that I did not even close it. I went to ' Taj Ali and enquired from him as to what had happened to him. I was so much shocked myself that I laid myself on my charpie for fifteen minutes, not knowing what had happened." He has thus raised the plea of accident. Five witnesses have been produced in defence. Snab Shah (P. W. 1) was called as D. W.

1. He admits that he was not present at the spot and yet has given details of the occurrence. He states that the appellant has not had any training in revolver firing and there was no enmity between him and the deceased. Aurangzeb (D. W. 2), a constable in the border police, states that the rifles are placed in the magazine after unloading them. Allah Dad (D. W: 3) deposes that there was no enmity between the appellant and the deceased. Mir Akbar (D. W. 4) states that the revolver went off accidentally and was not fired intentionally. Hayat Muhammad (D. W. 5) says that there was no enmity between the deceased and the appellant and that the firing was accidental.

5. The appellant in this case has raised the plea of accident. There is nothing in the prosecution evidence which may rebut that plea. It is established that there was no enmity between the appellant and the deceased, that the appellant happened to handle the revolver and pulled its trigger, as a result of which the deceased was hit in the head and died. He appears to have been surprised and shocked by the report of the shot, as the bullets dropped from his hand when he opened the chamber of the revolver. These circumstances support his version of accidental firing. For a conviction of the appellant under section 304, P. P. C., it is necessary for the prosecution to prove that he fired with the intention of causing death or bodily injury as was likely to cause death or with the knowledge that it was likely to cause death but without the intention to cause death or such bodily injury as is likely to cause death. The required intention and knowledge, is entirely missing. Muhammad Siddiq v. The Crown (P L D 1949 Lah. 70) was a similar case in which the deceased received a fatal injury as a result of a discharge from a pistol held by the appellant and the question was whether the appellant had fired intentionally or it had gone off accidentally. Though the appellant had neither raised nor proved the plea of accident, it was found that the appellant had no motive to kill or injure the deceased, as they were friends and when the appellant was merely trying to demonstrate to the deceased bow to rob people, it went off. The appellant was acquitted of the charge under section 302, P. P. C., but was convicted under, section 304‑A, P. P. C., for being grossly negligent and rash in using a loaded pistol in the manner in which he did. It was held that "in the language of section 300 of the Indian Penal Code, the prosecution must prove that the act by which death is caused was done with a certain intention or knowledge. As long as the prosecution does not prove such intention or knowledge the accused is entitled to acquittal and there is no onus on him to take or prove any special plea of accident or necessity. Where, as in the offence of murder, intent or knowledge is an ingredient of a crime, there is no onus on the accused to prove that the act was accidental. And where death is caused by injuries from a firearm the prosecution has to show not only 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 of the Indian Penal Code (sic). If either of, these ingredients is not proved, the offence committed is not murder whatever else it may be. * * * * " * * * * * * * * * * In such a case it is wholly incorrect to say that the burden of proof that the firing was accidental is, by reason of section 105 of the Evidence Act or on some general principle, on the accused, and that the accused must take a special plea to that effect and prove it in the same manner as the prosecution is required to prove a fact." In Sultan Muhammad v. The Crown (P L D 1954 F C 29), Pir Bakhshi deceased and Sultan Muhammad were both a police guard posted in a house at Dad Leghari in Sukkur District. A report of a gun was heard and the witnesses saw Sultan Muhammad pending over Pir Bakhsh who was crying and struggling on the ground hit by the pellet. No motive for killing Pir Bakhsh was found. The evidence and the circumstances analysed showed, in the opinion of the Court, that factors favouring the possibility of intentional killing were not entirely absent but there were many circumstances which went to support the specific plea of accident which was set up at a very early stage by the accused (as in this case). It was held that even if an act by the accused resulting in death is admitted, there can be no presumption that the act was voluntary and intentional and these elements must be established by the prosecution like any other element of the offence charged and it is not‑correct to say that the accused must be found guilty if he fails to show the circumstances necessary to establish the accident pleaded by him and that even if the plea of accident be held as not having been affirmatively established, there was still left, on an examination of the whole case, a reasonable doubt whether the act of the accused might not have been devoid of intention, that' is to say a pure accident. The accused was, therefore, acquitted.

6. On an examination of this case and the evidence on the record I consider that the plea of accidental firing raised by the appellant may reasonably be true. In fact the facts and circum stances can only be explained on that hypothesis. He had no motive to cause the death of the deceased, The appellant was tempted to play with the revolver seeing it lying there, when he pressed its trigger. In doing so he did not have the intent necessary for an offence under section 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 304, P. P. C.

7. The conduct of the appellant, in my view, was all the same grossly negligent in pulling the trigger of the revolver, without opening the chamber and seeing that it was unloaded. He had been a member of the border police who was trained in the use of firearms (though may be he did not have any training in using the revolver) and knew the danger attending upon the pulling of a trigger without taking the precaution of verifying that it was not loaded. Before he pulled the trigger, he should, as a prudent or a reasonable man, have seen that the revolver was empty. He evidently knew how to open the chamber, for immediately after the firing, he did open it, when the bullets dropped to the ground. He should have opened it before pulling the trigger especially when he was pointing it in the direction of the door‑way, where the deceased was standing. The case is similar to Muhammad Siddiq v. The Crown. The learned counsel for the appellant argues that the act of the appellant is not negligent, as even though he pulled the trigger he did not know that the revolver was loaded. This argument is not sound, because if he had known that the revolver was loaded and had pressed the trigger pointing it in the direction of the deceased he would at least have been guilty, without a doubt, under section 304, P. P. C., Aurangzeb (D. W. 2) has stated that rifles when put in the magazine (by which I suppose he means the armoury) are emptied. It is, therefore, argued that the appellant had the belief that the revolver was empty and if he fired he cannot be deemed guilty of culpable negligence. The appellant has not said that he believed the revolver to be empty, but even if he did so believe, it was his duty as a prudent man to ensure that it was empty before pulling its trigger when pointing the weapon towards the deceased. In Motan Ram v. Emperor (A I R 1930 Lah. 462) the accused knowing that the pistol was loaded was trying to unload‑it and while doing so acted so negligently that the pistol went off killing a boy and it was held that the act was negligent and it fell within the purview of section 304‑A, P. P. C.

8. Pulling the trigger of a revolver without taking the precaution of seeing that it was empty was gross and culpable) negligence especially when it was pointing in the direction of an' open door, where the deceased stood. Culpable negligence is they 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 persons 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., and is, in view of all the circumstances of the case, sentenced to one year's rigorous imprisonment. K. B. A. Conviction altered.