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Criminal Revision No. 231 of 1984, decided on 12th May, 1985.

‑‑‑S. 304‑A‑‑Criminal Procedure Code (V of 1898), S. 439‑‑Conviction‑ Revision against‑‑Accused handing over his loaded rifle to co‑accused from whom rifle went off causing death of deceased‑‑Only evidence against accused being that he handed over his loaded rifle to co‑accused‑‑Trial Court convicting accused for his act of handing over of rifle‑‑Such act of accused, held, would not attract provisions of S.304‑A, P.P.C.‑‑Accused acquitted but as he handed over loaded rifle to a boy of tender age which was highly unreliable, his rifle was ordered to be confiscated.

‑‑‑S. 304‑A‑‑Accused handing over his loaded rifle to co‑accused who was a boy of tender age‑‑Rifle went off from co‑accused and caused death of deceased‑‑Accused acquitted but co‑accused convicted‑‑Suo motu show‑cause notice issued to accused against his order of acquittal‑ Evidence on record showing that rifle was already loaded but accused had no knowledge for that‑‑Rifle went off accidentally and even in F.I.R., said act was stated to be an act of God‑‑Suo motu notice discharged in circumstances.

Mehr Ghulam Ali Mubashir for Petitioner.

Bashir Baig for the State.

Date of hearing: 22nd April, 1985.

Nazir Ahmad and Fida Hussain Shah accused were tried under section 304‑A, P.P.C., by Mr. Muhammad Ahsan, Magistrate First Class, Bhalwal, who by his judgment, dated 10th November, 1983, acquitted Fida Hussain Shah of the charge but convicted Nazir Ahmad alias Nazira accused "for his act of handing over his loaded gun to Fida Hussain Shah" and sentenced him to a fine of Rs.500 or in default in the payment thereof to undergo simple imprisonment for two months. Nazir Ahmad alias Nazira accused challenged his conviction and sentence in the Sessions Court, Sargodha. The learned Sessions Judge maintained his conviction, but reduced the fine to Rs.300 or in default to undergo simple imprisonment for one month. Nazira accused filed this revision petition to question the correctness and propriety of the aforesaid orders. After hearing his counsel on 13th June, 1984, I issued a suo motu notice to Fida Hussain Shah accused to show cause why his acquittal should not be set aside. Both these matters are being disposed of by this judgment.

2. The prosecution version was that Muhammad Azam complainant was on visiting terms with Nur Shah of village Kot Moman. On 20th February, 1982 he went to his house. His brother Muhammad Arshad and his cousin Muhammad Jamshed, who were studying in Government High School, Kot Moman, also came there. At about 3‑30 p.m., some body knocked at the door of Nur Shah, upon which Fida Hussain Shah respondent went out. Nazir Ahmad alias Nazira petitioner was present outside. He handed over his rifle to him and told him that he will get the same on returning from bazar. Fida Hussain brought the rifle in the courtyard. It was already loaded. It went off causing injury on the head of Jamshed who was immediately taken to the hospital but he expired on reaching there.

3. At the trial Muhammad Raza (P.W. 1), Muhammad Azam (P.W. 2) and Muhammad Arshad (P.W. 4) supported the prosecution version of the occurrence.

4. Fida Hussain accused admitted having received the rifle from co‑accused Nazira but he stated that it went off accidentally and there was no negligence or carelessness on his part. Nazir Ahmad alias Nazira accused firstly stated that rifle Exh. P.1 was not his nor he had come to the house of Fida Hussain Shah. In reply to the just next question, he stated that rifle Exh. P.1 belonged to him and he had kept it with Fida Hussain Shah on 19th February, 1982 and taken away on the same that he had been falsely implicated as the Superintendent Police was annoyed with him. He examined four witnesses in defence who stated his gun was not used in the occurrence.

5. The learned counsel for Nazir Ahmad alias Nazira petitioner contends that mere handing over of the rifle by the aforesaid petitioner to Fida Hussain Shah does not fall within the ambit of section 304‑A, P.P.C. The learned counsel for Fida Hussain Shah submits that rifle was already loaded when it was handed over to Fida Hussain Shah who was a child studying in 7th Class, he had no knowledge that it was loaded and the gun went off accidentally, therefore, section 80 of the Pakistan Penal Code is attracted.

6. I have carefully gone through the entire evidence The only allegation against Nazir Ahmad alias Nazira petitioner is that the handed over his rifle to Fida Hussain Shah respondent. The trial Magistrate convicted him for "handing over his loaded gun to Fida Hussain Shah". This act does not attract the provisions of section 304‑A, P.P.C. His petition is, therefore, allowed and he is acquitted of the charge. The fine, if already recovered, shall be refunded to him.

7. So far as Fida Hussain Shah accused is concerned the evidence on the record shows that the rifle was already loaded but he had no knowledge of this fact. The rifle went off accidentally and even in the F.I.R. it is stated that it was Act of God. The notice issued to him is, therefore, discharged.

Nazir alias Nazira petitioner handed over loaded rifle Exh. P.1 to Fida Hussain Shah respondent, a boy of tender age which was highly undesirable. Rifle Exh. P.1 shall be confiscated to the State.

H.A.K. Revision allowed and sou motu notice discharged.

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