P L D 96 (W (PLP)

Dates of hearing 25th, 26th and 30th August 1960. MUNSHI, J.‑In agreement with the unanimous opinion of the assessors, the first Additional Sessions Judge of Nawabshah Mr. G. Hussain Ansari has convicted the appellant Imam Bux and one Muhammad Bux alias Muhin of tile offence punishable under section 392/397, P. P. C., and sentenced each of them to suffer R.1. for 7 years. In addition, the learned Judge in disagreement with the unanimous opinion of the assessors, has convicted the appellant Imam Bux of the offence punishable under section 302, P. P. C. and sentenced him to death. His appeal and the reference' for the confirmation of the sentence of death are before us. Muhammad Bux has not appealed. Mirza who is the first informant in this case and witness Kadirbux, his son deceased Jhangi and witness Majid had, on 3rd January 1958, gone to Deb Akro with 10 camels to cut wood in the jungle for the purpose of selling it. They cut wood for the whole day and passed the night in the jungle. On the following day, after loading the camels with the wood, they set out for their village. Kadirbux, Majid and One Arnirbux were going ahead, while Mirza and deceased Jhangi were following them, the distance between them being 2 miles. Mirza and Jhangi had 4 camels in their charge. After they covered some distance, Mirza and Jhangi met two men one of whom was armed with a gun and the other with a pistol and a hatchet. One was wearing Khaki clothes. One claimed to be kamdar of one Mir Ellahibux and the other said he was a sepoy. They told them that the jungle from which they had cut the wood, belonged to Mir Ellahibux and since they had cut it without his permission, they should accompany them to Mir Ellahibux. They went with them, and on the way they stopped at a place near a grave‑yard and there the culprits asked them to unload the camels. Mirza was the , sent to bring something to eat, while the deceased was sent out to bring water. After sometime, Jhangi returned with water. While Mirza was returning after purchasing some articles, he met Kadirbkx, who noticing that his son and Mirza were not foil )wing them, returned in order, to find out the cause. On reaching the grave‑yard, Kadirbux saw the two culprits and also his son Jhangi and the four camels. The two culprits then started taking away the four camels. Jhangi ran and held the reins of the camels, but the appellant who was armed with a gun, shot him in the stomach and he fell dead. Kadirbux and Mirza due to fear did not go near the assailants who took away the four camels. Leaving Kadirbux at the scene, Mirza went to the village where he informed Khalil and Urs of the incident. Khalil referred him to police and accordingly Mirza went to Nawabshah where his report was recorded at 12 noon by A.S.I.P. Pit Bux. The S. I. P. after recording the report, repaired to the scene of offence where he found Jhangr lying dead. He also found an empty cartridge and a sleeve of a shirt. He secured these articles and recorded the statements of the witnesses. On 5th, witness Lashkari found two camels at 68th bridge and produced them before the police. They were identified by Mirza and others. On the same day, at mid‑night, Muhammad Essa, Head Constable of Bhirla outpost, saw the accused riding on camels in suspicious circumstances. He detained them, and on search of their persons, he found a belt of cartridges. containing 30 live cartridges hanging from the neck of the appellant, He also found a gun in three pieces tied with a rope on one of the camels. He searched the person of Muhammad Bux and recovered a dagger and several cartridges: After interrogation, he arrested them and produced them along with the articles recovered and also the two camels, before Jamadar Nasrnllah Khan of Bhtria outpost. On 8th January 1958, S. I. P. Pirbux received a telegram informing him of the arrest of the two men. The policemen brought them to the police station of Nawabshah on 9th January. On 10th in the identifica tion test, both the appellant and Muhammad Bux were picked out by h1irza and Kadirbux. Thereafter, in the foot‑prints test, the tracker Haji Essa picked out their foot‑prints. Subsequently, the two camels secured by H. C. Essa were received. They were identified by Mirza and Kadirbux Then the two appellants were sent to the Mukhtiarkar and 1st class Magistrate Nawabshah, where their confession was recorded. The empty cartridge secured from the scene and the gun recovered from appellant Imambux were sent to the ballistic expert for his opinion. On 20th January the Police challaned the two men with the above result. In their statements, the appellant and Muhammad bux dented the allegations. They denied having committed the robbery. Imam bux also denied having shot dead Jhangi Imambux stated that he had been arrested in a cinema while Muhammadbux stated that he had been arrested in a hotel. There is no doubt that Jhang: died of a gun‑shot injury. There is also no doubt that robbery of 4 camels was committed. On the question of robbery there is the evidence of Mirza, Kadirbux, Lashkari and H. C. Essa. In addition, there is the judicial confession of the appellant recorded by the Mukhtiarkar and 1st Class Magistrate. Indeed, the learned counsel for the appellant conceded that the robbery was committed by the appellant and Muhammad bux. What he did not concede is the charge that the appellant shot Jhangi as a result of which he died. His contention is that while the appellant and his companion were taking away the camels, Jhangi caught hold of the reins of one of the camels. Then there was grappling between him and the appellant, who was at that time holding a loaded gun, and it was in the course of the struggle that the gun went off and the shots penetrated the stomach of Jhangi as a result of which he died. For this he relies upon the confession of the appellant. He also relies upon the fact that a sleeve of shirt was recovered at the scene, and the circumstance that when Imambux was caught by H. C. Essa, he was found wearing a shirt without a sleeve. This, in our opinion, supports the contention of the learned counsel for the appellant that there was a struggle between the deceased and the appellant. Mirza and Kadirbux have no doubt denied this allegation of struggle and this denial is under standable otherwise it would contradict their version that the deceased was deliberately shot dead by the appellant. There is no explanation how the shirt of the appellant came to be torn. The learned counsel for the appellant therefore argues that Imambux cannot be held guilty of the offence punishable under section 302, P.P.C. On the other hand the learned counsel for the State argued that even if the gun went off during struggle between the deceased and the appellant, the latter can be held guilty of the offence punishable under section 392, P P. C., as according to him clause 4 of section 300, P. P. C., applies. We have examine .I this argument of the learned counsel for the State and we do not agree with hina, that clause 4 of section 300 would apply to the facts of the case. Clause 4 of section 300 provides as under: "If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." It cannot possibly be said that in trying to wrest the gun from the possession of the deceased, the appellant was committing an act knowing that it was so imminently dangerous that i must in all probability cause death, or such bodily injury as was likely to cause death. He was not using the gun but was merely trying to wrest it from the hands of the deceased. It cannot be said that there was no possibility of an accidental shot. We are, therefore, satisfied that the act of the appellant does not fall under clause (4) of section 300, P. P. C. and consequently section 302, P. P. C. will not apply. In the result we maintain the conviction of the appellant of the offence punishable under section 392/397, P. P. C. and also the sentence imposed upon him under that section and w set aside the conviction of the appellant for the offence punishable under section 312, P. P. C. and also the sentence of death impose upon him With this modification in the judgment we dismiss the appeal. A. H. Appeal dismissed with modification.