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Criminal Appal No. 773 of 1980, decided on 16th June, 1981.
--Ss. 304 (11) & 304-A-Complainant's son killed by gunshot rashly and negligently fired by accused appellant in order to celebrate victory of a person in a cycle race-Offence, held, fell under Ss. 304-A and not 304, Part II-Conviction changed accordingly and sentence reduced.
Muhammad Abdus Salim and S. A. Rehman for Appellant.
Sahibzada Sher Ali Khan for the State.
Date of hearing : 16th June, 1981.
Tasneem Yousuf, aged 12/13 years, the son of Muhammad Yousuf complainant was killed by gunshot injury at about 6 p. m. near jhal of Chak No. 85/N. B., where people had gathered to see a cycle race and in celebration of which the appellant is said to have fired the gun after taking it from the hands of one Muhammad Aslam of Chak No. 89/N. B. Tasneem Yousuf died on reaching the hospital before any medical aid could be given to him. A case under section 302, P. P. C. was registered against the appellant, but on considering the evidence, Rao Muhammad Hayat Khan, the learned Additional Sessions Judge, Sargodha has come to the conclusion that only an offence under section 304, Part 11 is made out. He, therefore, convicted the appellant under section 304, Part II and sentenced him to R. I. for a period of ten years. The appellant was also directed to pay Rs. 5,000 as compensation to Muhammad Yousuf complainant failing which it was directed that he shall undergo further R. I. for one year. This appeal is directed against the judgment of the trial Court dated 9th June, 1980.
2. The learned counsel for the appellant has argued that even if the evidence is to be believed it is not a case under section 304, Part II but a case undo section 304-A as the death was accidental. The learned counsel for the State agrees to this proposition. Even other wise this is borne out from the record that the death was caused when the appellant fired with a gun in a rash and negligent manner in order to celebrate the victory of Sarwar Teli of Chak No. 89. This can be an offence under section 304-A and not under section 304, Part II. The learned counsel for the appellant has not argued on the other aspects of the case. I, therefore, need not go into them.
3. In view of the above considerations, the conviction of the' appellant is changed from section 304, Part 11 to section 304-A. His sentence is reduced to 3 years' R. I. under section 304-A but the B direction with regard to the compensation and the sentence in ,default of payment of such compensation is, however, maintained. The: provisions of section 382-B, Cr. P. C., have been kept in mind while amending this sentence. With these observations the appeal is disposed of.
Order accordingly.
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