' SAJJAD ALI SHAH, J.-Appellant Missal Khan son of Safdar has been convicted for offence under section 302; P. P. C. And sentenced to death by learned Sessions Judge, Karachi, vide his judgment dated 6th January, 1978. Appellant has filed appeal against his conviction and sentence and at the same time there is before us a reference for confirmation of death sentence under section 374, Cr.
P. C. We propose to dispose of both the appeal and the reference by this single judgment.
' Shortly stated prosecution case is that on the day of incident, that is, 7-12-72, at about 10-15 a. m.
Constable Rasool Khan came to Barrack No, 1 in the Police Headquarters to change his uniform. He found constable Sher Ahmed lying on his cot and constable Missal Khan, who is appellant before us, sitting on another cot lying nearby with a rifle in his hands. Both Sher Ahmed and Missal Khan were having a conversation and exchanging hot words with each other. Suddenly report of gun fire attracted attention of constable Rasool Khan, who saw appellant Missal Khan standing over constable Sher Ahmed pointing his rifle at him. Constable Qayoom Khan, in the meantime, snatched rifle from constable Missal Khan, who was trying to fire a second shot. In the meantime constables Rasool Khan, Waris and Hadi Marjan caught hold of Missal Khan. Platoon Hawaldar Mian Wali Khan and Sobedar Sardar Khan arrived there who were apprised of the incident. Constable Sher Ahmed was found lying injured with bullet having entered on the left side below the rib with exit through right side of his back. Constable Qayoom Khan handed over the rifle snatched from Missal Khan to company Munshi Akhtar Jan. Constable Rasool Khan and others shifted injured She Ahmed on another cot and took him to police hospital from where Sher Ahmed was sent to Civil Hospital in the ambulance. Raja Fazlur Rehman D. S. P. Police Headquarters informed Police Station Garden on telephone that one constable had shot and injured another constable. The injured has been sent to the hospital and the assailant was being sent to the police station for necessary section.
' Fazlur Rehman S. H. O. Garden Police Station, was given a copy of station diary relating to this incident, hence he proceeded to Civil Hospital. He saw Sher Ahmed lying injured with a rifle shot.
The doctor informed him that injured was not capable of making any statement. S. H.
0. Then recorded statement of constable Rasool Khan, who narrated the facts of the incident as mentioned above. This statement was sent by S. H. O. To the Police Station which was entered into 154, Cr. P. C. Register as F. I. R. In this case. The S. H.
0. Then went to the scene of offence. He seized a matress alongwith blanket with a hole of bullet.
Both these articles were stained with blood. He also seized one empty bullet. He collected blood from the ground. There was a bucket bearing hole of bullet. He secured that also and prepared mashirnama Exh. 22 which is attested by Mashir Imran Khan and Mian Wali Khan. S. H. O. Secured from Munshi Akhtar Jan crime-rifle No, 410 with Ball No, KP/1787 and body No, 46-C-9384 and 4 live cartidges vide mashirnama Exh. 18; S. H.
0. Also secured from Company Munshi Akhtar Jan Register for issuance of Government ammunition to company establishment of P. A. R. Company Platoons Nos, 5 and 6 and marked cntry made on 7-12-72 regarding issuance of rifle with description mentioned above to constable Missal Khan vide mashirnama Exh.
19. These recoveries were made in presence of the same mashirs Imran Khan and Mran Wali Khan.
The S. H. O. Handed back the register mentioned above to Akhtar Jan vide memo Exh.
20. The S. H.
0. Prepared sketch of vardat and recorded statements of witnesses Waris, Akhtar Jan, Qayoom Khan, Sardar Ali Khan and others. In the meantime S. H.
0. Was informed that Sher Ahmad had succumbed to his injuries in the hospital. He went to the hospital and prepared inquest report Exh. 28 and sent the dead body for post-mortem examination. He seized blood-stained clothes of the deceased. Appellant already apprehended was put under arrest. Sealed parcels were sent to the Ballistic Expert and Chemical Examiner and after the completion of investigation challan was presented in the Inquiry Court from where the case was sent to Sessions vide Committal Order dated 3-8-74. Before the trial Court the proceedings commenced on 27-2-78 and difficulty was felt that most of the P. Ws. Were not being served. Ultimately on 23-4-78 process server Ghulam Kibrya, A. S. I. Garden Police Station, was examined by the trial Court as Court witness and he deposed that only 4 P. Ws. Could be served. 6 P. Ws. Namely Waris Khan, Hadi Madan, Bakhta Khan and Sardar Ali Khan had been transferred to N.-W. F. P. And their places of posting could not be ascertained. Sub-Inspector Abdul Majid had retired from service and his whereabouts were not known. Similarly P. W. Abdul Ghafoor had shifted from his last known address and his further whereabouts could not be ascertained. Consequently these summons against P. Ws. Mentioned above were returned unserved and placed on the record.
' The prosecution, therefore, examined only 7 witnesses in support of its case. From the eye- witnesses prosecution could produce only P. W. 1 Rasool Khan complainant and P. W. 2 Abdul Qayoom. The other material witness is P. W. 4 Akhtar Jan, who maintained the register of issuance of Government ammunition. P. W. 5 Imran Khan alias Imranul Islam is a mashir who has attested mashirnama of vardat. P. W. 3 Raja Fazlur Rehman D. S. P. Has deposed before the trial Court that after the incident appellant was brought before him by the constables and he was informed about the incident and he ad directed that the matter may be reported to the Police Station. P. W. 6 is Fazlur Rehman S. H.
0. Who had investigated the case as stated above. P. W. 7 Shabbirul Hassan is Record Clerk in the Civil Hospital who identified the handwritings and signatures of doctors Hamida Qureshi and Akhtar Aziz who had examined injured Sher Ahmed in the hospital and produced their notes. There is no post-mortem report and S. H.
0. Fazlur Rehman had addressed a letter. To R. M.
0. Surgical Ward No, 1 Civil Hospital, Karachi inquiring about the cause of death of Sher Ahmed and the said doctor has replied in writing on that letter that the cause of death was "a irreversible shock" as given by Doctor Akhtar. In fact an application under section 540, Cr. P. C. Was made by A.
P. P. In which request was made to call doctor Rizwan Nasir, Doctor Akhtar and D. S. P. Shabjeban Khan but none of them could be served and only this witness Shabbirul Hassan was available to testify in this case as stated above. Prosecution has also produced report of Ballistic Expert Exh. 33 which is to the effect that crime-empty was found to have been fired from the rifle recovered from the appellant. The report of the Chemical Examiner Exh. 32/2 on the record is to the effect that the clothes of the deceased and the other articles were found to be stained with human blood.
' During the trial proceedings the defence of the appellant was total denial of prosecution allegation. He has only admitted that at the time of incident he was .a police constable and posted at Police Headquarters Karachi. He has also admitted that deceased Sher Ahmed and P. Ws. Rasool Khan and Abdul Qayoom were also posted with him in the same company at that time. He has further proclaimed innocence and has not examined any witness in defence.
' We have heard the learned counsel appearing for each side and have carefully examined the record of this case. We find that in the instant case the incident took place in the,year 1972 at Police Headquarters hence most of the witnesses are from police personnel and since the case came up for trial proceedings in the year 1978, most of the witnesses were not traceable for the reasons mentioned by Court witness Ghulam Kibrya A. S. I. In his deposition as stated above. The prosecution has been able to produce P. W. 1 Rasool Khan who is an eye-witness of the incident. In his deposition before the trial Court he does not claim to have seen actually with his own eyes the shot being fired by appellant at the deceased but short of that he has described all the relevant circumstances which satisfactorily prove that the appellant had fired from his rifle at the deceased. He has testified that at the relevant time he came to Barrack No, 1 of the Police Headquarters and saw appellant sitting on a cot with rifle in his hands. While be was taking off his shirt be heard report of a shot of firearm. He saw appellant standing over Sher Ahmed who was hit with a bullet on the left side of his chest and the bullet had pierced through his back. Sher Ahmed was bleeding from his injury. He also mentions that Waris Khan, Alaf Khan, Abdur Rehman and others were present. He has also stated that he caught hold of the appellant and in the meantime Qayoom Khan came and snatched the rifle from the appellant and the appellant was handed over to Head Constable Mian Wali. During the cross-examination this witness stated that he did not bear any exchange of hot words between the appellant and deceased and also be did not see appellant actually shooting. His attention was for the first time diverted when he heard the sound of shot. He did not see the appellant firing but admitted that shot was fired by the appellant. He has further explained that the shot was fired by the appellant because the appellant was seen by him standing near the head side of the deceased and his rifle was pointed towards deceased. P. W. 2 Qayoom has deposed before the trial Court that it was 2 p. m. When he was sleeping in P. A. R.
Company barrack and the appellant was also present in the barrack. He heard a rifle sound and was awakened from his sleep and saw a person lying dead on the cot. He forgot the name of deceased and could not say how the deceased had died. He did not snatch any rifle from the appellant. It was lying on the cot. He did not see the incident at all. This witness was declared hostile and was cross-examined. He admitted having stated before the Inquiry Court that on 7-12- 72 at 10 a. m. He was present in the barrack and in the same barrack Missal Khan and Sher Ahmed were also present. This witness further asserted that he did not state before the Inquiry Court that on hearing the shot he got up and that Sher Ahmed was shot at and he snatched the riffle from Missal Khan. This witness further admitted in his evidence before the trial Court that the appellant was from tribal area and he was also from tribal area and denied a suggestion that he was favouring the appellant by making false statement in the Court. He further stated before the trial Court that he had picked up the rifle from the cot and handed it over to Munshi Akhtar Jan. The cross-examination was not carried further and no more questions were asked. The witness was also not confronted with his statement before the Inquiry Court in which he had fully supported the prosecution case and had positively stated that after hearing the gunshot he rose and saw Sher Ahmed was shot at and he snatched the rifle from Missal Khan and handed over the same to Munshi Akhtar Jan. On our inquiry as to why the statement of this witness recorded before Inquiry Court was not brought on the file of sessions under section 288, Cr. P. C. To be treated as substantive evidence as obviously the witness was holding back the evidence and was giving a different story, we were informed by the learned counsel for the appellant who had appeared before the trial Court that such request was made by A. P. P. Orally but the learned trial Court.
Declined to accept the request on the ground that after the abolition of Committal Proceedings application of section 288, Cr. P. C. Is barred. Record of the case reveals that no such application was made in writing, hence there is no order on the record. We find ourselves unable to subscribe to such view for the reason that after the abolition of the Committal Proceedings under the Law Reforms Ordinance a provision has been made for recording of 164, Cr. P. C. Statements of the prosecution witnesses, which are equated with the statement of the witnesses recorded before the Inquiry Court. Even such statement under section 164, Cr. P. C. If recorded, in presence of accused and opportunity is also given to him to cross-examine the witness, can b transferred to the record of sessions under section 265-J of Criminal Procedure Code if such witness does not supporly the prosecution case and has been declared hostile. No doubt this would apply to the cases which are being tried under the new law and definitely a provision has been made to cover cases which were being tried under the old law and were pending at the time when provisions of Law Reforms Ordinance were enforced. Law Reforms Ordinance (Amendment) Act, 1976 (XXI of 1976) amending the Law Reforms Ordinance of 1972 provides in section 5 for such contingence and saves all such cases which were pending before 21st day of December, 1975, to be proceeded with and completed as if the provisions of the schedule to this Ordinance relating to the amendments of Criminal Procedure Code had not come in force. From this it follows that the old procedure was applicable because it was a pending case and the evidence of the witness, recorded before the Inquiry Court could have been transferred to the file of sessions under section 288, Cr. P. C.
' Next we have evidence of Akhtar Jan which is very important in nature. This witness has deposed before the trial , Court that on the day of the incident he had issued 5 rifles from Mal Kbana and one of them was issued to appellant Missal Khan. He had brought the register and proved that he had issued rifle to appellant Missal Khan with butt No, 1787 and body No, 46-C-9384 and 20 cartidges on 7-12-72. The description of the gun tallies with the description given in Exh.
18. This description of the gun also tallies with the report of Ballistic Expert Exh. 33 from which the crime-empty has been found to have been fired. P. W. 4 Akhtar Jan has further deposed before the trial Court that on the morning of incident he heard report of gun fire, went inside barrack No, 1 alongwith Sub-Inspector Sardar Ali and found Sher Ahmed lying injured with a bullet and constable Qayoom had a rifle in his hand which was issued to appellant Missal Khan. Constable Qayoom handed over the rifle to this witness stating that it was snatched from the appellant. This witness has further explained that he kept the rifle and bullets in Mal Khana and then handed over the same to S. H.
0. Fazlur Rehman. We find no reason whatsoever to disbelieve this witness and he was further fully supported by S. H. O. Fazlur Rehman who has made the recoveries as already mentioned above.
' There is sufficient evidence available on the record to complete the chain and appellant Missal Khan cannot deny the fact that he was not in possession of the Government rifle issued to him on the day of incident and was recovered from him after the incident. There is documentary evidence to that effect as described above.
' So far medical evidence is concerned Doctor Hamida Qureshi who had initially examined injured Sher Ahmed in the Civil Hospital has not been examined and her medico-legal slip recorded by her has been produced as Exh.
37. Injured was also examined by Doctor Akhtar in Surgical Ward No, 1 and on the back of Exh. 37 there is an observation made by this doctor which has been produced as Exh.
38. Injured Sher Ahmed was subsequently operated upon by Surgeon Irshad Waheed with the assistance of Doctor Akhtar Aziz. Such operation note and cause of death is produced as Exh.
40. These documents have been produced by P. W. 7 Shabbirul Hassan who is Record Clerk in the Civil Hospital and he has deposed before the trial Court that he is conversant with the hand writings and signatures of the doctors who dealt with injured Sher Ahmed as stated above. He has identified the handwritings and signatures of all the doctors. Exh. 37 on the record shows that Sher Ahmed sustained gunshot injury and Exh. 38 shows that wound of entry was present in the 7th intercostal space aut. Auxiliary line. Charring of wound. Wound of exit at rt. Lumbar region posteriorly. Exh. 40 is the operation note which clearly states that operation was performed and peritonium was opened and peritonial cavity was found to be full of blood. Wound was found in the spleen which was bleeding. The mesentary was found to be torn in many places due to bullet injury and bleeding parts were ligated. Other internal damage due to bullet injury is also mentioned in detail. This clearly shows that death was due to bullet injury. This medical evidence fully supports the prosecution case as stated by eye-witnesses Rasool Khan and Abdul Qayoom that appellant fired from close range and was standing over the deceased pointing his rifle at him. Even the entry and exit of wounds is consistent with ocular testimony. It is also understandable that since the incident took place in 1972 and the evidence was being recorded in 1978, the concerned doctors.
Were not available hence a person conversant with handwritings and signatures of the doctors was examined in the Court.
' Appellant has not said anything in his 342, Cr. P. C. Statement and there appears to be no enmity between the parties. Initially the case of the prosecution was that there was exchange of hot words between appellant and deceased before the appellant fired at deceased but eye-witness Rasool Khan who has been examined in the Court has refrained from saying so. In any case both the appellant and the deceased were constables at the time of incident and were colleagues staying in the same barrack. From the circumstances of this case it appears that some thing must have happened between the two before the shot was fired. We, therefore, presume that there was an exchange of hot words after which the appellant fired at the deceased. Secondly it was only one shot fired and that also in the heat of the moment hence we think that in the instant case lesser punishment for imprisonment for life would meet the ends of justice. Consequently we maintain the conviction of the appellant under section 302, P. P. C. And reduce his sentence from capital punishment to life imprisonment and a fine of Rs, 2,000, or in default R. I. For one year.
' With this modification the appeal is dismissed.