1982 P Cr (PLP)

GHULAM MUJADDID MIRZA, J. -Allah Yar son of Shehr Yar, aged 16, was charged for the murder of another teen-agar Muhammad Irshad. The Sessions Judge, who tried the accused, convicted him under section 304-A, P. P. C., sentenced him to three years' R. I. and fine of Rs. 1,000, or in default to six months' R. I. The convict has filed Criminal Appeal No. 1188 of 1976, against the judgment of the trial Court dated 13th November, 1976. Abdul Ghafoor, father of the deceased, has also challenged the aforesaid judgment by means of Criminal Appeal No. 557 of 1977. Both have been admitted to regular bearing and shall be decided by this judgment.

2. On 26th June, 1974 at 2-00 p.m. Abdul Ghafoor-lodged report Exh. P. A. at Police Station, Arifwala. The murder took place at Dopehr wala, the same day in the Chowk of Chah No. 159/EB. The first information report was recorded by Races Ahmad Khan, S. I/S. H. O. Five months before the occurrence, a dispute arose regarding some ejectment from the land. The parties were Bashir Ahmad, Nazir Ahmad first cousins of Abdul Ghafoor, Abdul Ghafoor's brothers Din Muhammad and Muhammad Siddique. They were on one side. The other party was Abdul Waheed and others. A case under section 447/148/149, P. P. C. and 115, M.L.R. was registered against Abdul Waheed and others. On 17th April, 1974, Abdul Waheed along with others, murdered Din Muhammad brother of Abdul Ghafoor. A case under section 302, P. P. C. was registered against them and was under investigation.' Abdul Ghafoor used to pursue this matter. Shehr Yar son of Muhammad Yar was helping Abdul Waheed. Two days prior to the occurrence, Abdul Ghafoor left his house. He came to the crossing. On his way he met Shehr Yar who said that he should patch up the matter with the other party. Abdul Ghafoor refused. He was warned and threatened that he shall have to face serious consequences for this. On the day of occurrence, at about 12-30 noon, the deceased went to fetch ice from Chowk Loharanwala. Abdul Ghafoor waited for some time for his son to return. As the son did not turn up, the father went out in search of him. When Abdul Ghafoor reached Chowk Loharanwala, he saw his son under a Pipal tree. Allah Yar was telling him that his father got their party involved in litigation and he would be taught a lesson for that. He then fired with a .12 bore shotgun. Arshad was hit in the chest. He dropped dead. The occurrence was seen by Abdul Ghafoor and Muhammad Ismail who happened to be there by chance. As the appellant was armed with a shotgun, nobody came near him.

3. Races Ahmad Khan S. I. after recording the statement, left for the place of occurrence. From there he took into possession blood-stained earth. Thereafter he complied with other legal formalities, for instance preparing of injury statement and inquest report of the deceased. He then sent the dead body for post-mortem. On 27th June, 1974, '12 bore shotgun P. 2 was taken into possession from the appellant vide memo. Exh. P. E. The Police Officer also took into possession a bandolier and seven live cartridges.

4. Prosecution produced Abdul Ghafoor, Abdul Jabbar and Muhammad Ismail as eye-witnesses. Reliance was also placed on the recovery of gun and the medical evidence.

5. The appellant admitted that the boy died due to his firing, but he gave his own version as to how his gun went off. We shall refer to his statement after discussing the eye-witness account. As there is counter -version of the prosecution, both the prosecution story as well as the state ment of the appellant shall have to be examined side by side.

6. Abdul Ghafoor father of the deceased boy narrated the same story before the trial Court which he had mentioned in the First Information Report. He said that he went out to look for his son. When be reached near the corner of the mosque he found his son standing near the Pipal tree. The appellant was also there. He was holding a gun and bandolier on his shoulder. Abdul Ghafoor saw the appellant firing at his son, who was killed at the spot. Abdul Jabbar's version was that he was going from his house towards the Chowk. There he saw the appellant standing near the well in the Chowk. He had a gun in his hands and the bandolier on his shoulder. Muhammad Arshad was standing on the Thara below the Pipal tree. The appellant said that his father had involved his party in many cases and he would be taught a lesson. Thereafter he fired. Muhammad Arshad was hit in the chest. He fell down and died. Identical is the statement of Muhammad Ismail who blamed the appellant for the death of the deceased.

7. The doctor who conducted the post-mortem found the following injuries :- (1) A fire-arm wound of entry 1/3 x 1/3 on the front of left chest, 1 " from the mid x sternal line and 21 ' from the left clavicle. (2) An abrasion on the right shoulder. (3) Two abrasions, x each on the front of left shoulder and 1 apart from each other. The appellant when examined by the trial Court denied all the allegations but admitted that the gun belonged to his father and was a licensed weapon. When questioned "why this case against you" he gave the following answer:-- "On the day of occurrence, my parents had come to Sahiwal due to the death of my paternal-grandmother. I came to the Pipal tree in the Chauk Loharanwala in my Chak. Some birds were sitting on the Pipal tree. Many children were sitting below the Pipal tree. They included Anwar, Waheed and Akeel. Anwar, Waheed and Akeel asked me to bring the gun so that we should have a game. I went to my house and brought the gun P. 2. 1 brought some cartridges also. When I was below the Pipal tree, I loaded the gun. Muhammad Irshad deceased also arrived. Muhammad Irshad caught hold of the barrel of the gun and said that he would fire the gun. I said that I would fire the gun. I and Muhammad Irshad started snatching away the gun from each other. The gun went off accidentally. There after I do not know what happened. I do not know whether the fire hit Muhammad Irshad or not." He produced certificate Exh. D. B. to show that he was a student of 9th class and copy of the order dated 18th March, 1974 (Exh. D C) of the Assistant Collector, Pakpattan.

9. We have heard the learned counsel appearing for the parties. When the case was being argued we told the counsel for the appellant that in case this appeal is to be dismissed, he should show cause why the sentence of fine be not enhanced. Learned counsel accepted the notice. Learned counsel for the appellant submitted that the first informant was the father of the deceased, while the other two witnesses, though not related to the deceased, were chance witnesses. They gave no explanation as to how they happened to be at the spot. In such circumstances, no reliance could be placed on their testimony. We have considered the submission of the learned counsel for the appellant. The appellant admitted the factum of firing. So the only important question to be considered is which version is to be believed. Now that matter we have compared the appellant's statement with the ocular evidence. In our view the statement of the appellant inspires confidence. There appears to be more truth in what he said ratber than what the pro secution witnesses deposed. The medical evidence also lends support to the A statement of the appellant. The statement of the appellant leaves no room for doubt that the boy died due to rash and negligent act on the part of the appellant. Therefore his conviction under section 304-A, P. P. C. is in accordance with law and even the sentence of imprisonment is adequate.

10. However, we do not think that the sentence of fine is reasonable or proper. This, amount has to be increased. The deceased was an innocence boy of eight years old. We are aware of the fact that no amount of money can compensate and console his father who has lost his son at the age of eight. Nevertheless, the amount of compensation to be awarded must be reasonable keeping in view the relevant circumstances and in this case the age of the deceased is very important. We, therefore, enhance the fine from Rs. 1,000 to Rs. 25,000 (Rupees twenty-five thousand only). This amount shall be paid to the father of the deceased. Collector concerned is directed to take immediate steps for the realiza tion of this amount. He should send a formal intimation to the Registrar of this Court after the amount has been paid to the father of the deceased. Both the appeals are disposed of accordingly. Order accordingly.