MIAN BURHANUDDIN KHAN, J:-Muhammad A.I, Khani Zaman, Gul Rauf, Kundal. Khan and Mir Abbas were tried under sections 302/307, 148/149 for causing the murder of N. K. Lai Hussain (Army Naik) by firing at him with a rifle on 2-12-1976 at 1430 hours in Felix Cinema, Kohat Cantt. During the Second Show and during the same incident Talib Hussain of 23rd Punjab Regt. Kohat Cantt.
Sustained gunshot injuries and Kundal Khan, accused, posted as Foot Constable to Police Station Kohat Cantt. Was also seriously wounded by a fire-shot. The learned Sessions Judge Mardan, Camp. Kohat, vide his judgment, dated 5-4-1977 convicted Kundal Khan under section 307, P. P. C.
For the attempted murder of Talib Hussain P. W. By effectively firing at him, and sentenced him to imprisonment for life and to pay a fine of Rs. 5000 under section 544-A, Cr. P. C. Or in default, to undergo two years further R. I. Amount of fine, if recovered, was ordered to be paid to Talib Hussain acquitted Muhammad A.I and Mir Abbas of all the charges ; con--victed Gul Rauf and Khani Zaman appellant for having caused the murder of N. K. Lai Hussain and sentenced them to death under section 302 read with section 34 and a fine of Rs. 5,00) each under section 544-A, Cr. P. C.
And in default, to undergo R. I. For two years each. The fine, if recovered, was ordered to be paid to the heirs of deceased N. K. Lai Hussain.
2. Convicts filed an appeal against their conviction and sentence before the Peshawar High Court while the State also filed appeal in the High Court against the acquittal of Mir Abbas and Muhammad A.I. Murder Reference for confirmation of death sentence was also placed before the learned Judges who, vide their judgment dated 30-4-1978, acquitted Gul Rauf accused but dismissed the appeal of Khani Zaman accused/appellant, confirmed his death sentence and also dismissed the State's appeal against the order of acquittal of two accused.
3. Khani Zaman filed petition for leave to appeal and leave was granted by this Court vide order dated 11-6-1979 to consider the sufficiency of evidence to sustain the death sentence awarded to the appellant and to exclude the statement of Mir Abbas do-accused as inadmissible piece of evidence against the appellant on which both the Courts below had placed implicit reliance and the same piece of evidence has been made the sole basis of the, conviction of the appellant.
4. According to the one version the prosecution case is that on the fateful day which was Eid-ul- Azha. Muhammad A.I, A. S. I. Posted to P. S. Kohat Cantt. Alongwith Khani Zaman, H. C. Appellant, and Kundal Khan and Gul Rauf, F. Cs. Acquitted/accused, were on duty at the Felix Cinema, Kohat to maintain law and order. At about 14-30 hours a quarrel started between the Army personnel and the police in which it is alleged that N. K. Lal Hussain fired at Kundal Khan, Foot Constable and injured him on his leg. Muhammad A.I, A. S. I. Acquitted/accused saw a pistol in the hand of N: K. Lai Hussain and in order to defend himself and his police party, opened fire on him resulting in the death of N. K. Lai Hussain. A .32 bore pistol containing one bullet and two empties were taken into possession by the same officer and a case was registered under section 307/332/353/332 and under section 13 of the Arms Ordinance. This version of the . Occurrence was narrated by Muhammad A.I, A. S. I. Accused in his Murasla Exh. Z. 27 on the basis of which a case was registered vide F. I. R. No. 446 at 16-00 hours in P. S. Kohat Cantt.
5. While in the second version given by an Army Officers it is stated that some of the. Army personnel, in civilian dress, went to Felix Cinema, Kohat Cantt. To see the Second Show and due to heavy rush on account of Eid the police personnel were there including Muhammad A.I, A. S. I., Khani 2aman, Head Constable accused/appellant and Kundal Khan, Gul Rauf and Mir Abbas F. Cs.
To-control the public. Muhammad A.I, A. S. I, was armed with a reuolver while the other aroused were having rifles and a sten-gun. The O. Rs. Of the Army including Ashiq Hussain, P. W. 20, Muhammad Ilyas, P. W. 21, Talib Hussain, P. W. 24 and N. K. Lal Hussain deceased were standing in a queen front of the Military Booking Office. In the mean--time Muhammad Ramzan, P. W. 23 belonging to 117 Brig. Kohat tried to pass on his pay Book-to another Sepoy for purchasing a ticket for him. All the first four accused got out of the Manager's office; Muhammad A.I caught hold of Muhammad Ramzan, P. W. Gave him a slap saying that he was dis--turbing the formation of the queue. . Another F. C. Who was carrying a baton, hit Muhammad Ramzan on his head. Muhammad A.I accused then started beating him with- his belt. Upon this N. K. Lal Hussain protested saying that he (Muhammad A.I) had already wounded one of the O. Rs. And that he had again started beating the other O. Rs. Without any rhyme and reason. Kundal Khan accused caught hold of N. K. Lal Hussain while the other accused started beating him with the butts of their step-guns, in conse-- quence of which a state of panic prevailed and the cinema-Boers including Talib Hussain, P. W. 24 and others started running away. He was still in the Verandah of the cinema house when he was fired at by Kundal Khan accused and was hit on his leg. N. K. Lal Hussain was caught hold, by Muhammad A.I, A. S. I. And the other F. Cs: dragged him into the office of the Manager of the cinema where he was shot dead by firing at him with one of the rifles of the F. Cs. Another report was recorded as Exh. P. A./8 in the P. S. Kohat Cantt. On the same day i.e. 2-12-1976 at 19-10 hours on the written report of Lt.-Col. Ch. Inamul Haq in the following words: "I am Commanding Officer 28 Medium Regt. Arty. No. 1265776 N. K. Lal Hussain of my Unit had gone to see a film in Felix Cinema Kohat on 2nd December, 1976 alongwith few more O. R. Of my unit. He has been killed. By-police firing. It is reported to me that the police resorted to unprovoked firing at the O. R. In which he has been killed. The police party was headed by an A. S. I. The police personnel who are reported to be responsible for this killing consisted of the A. S. I., one Head Constable and two more constables ---------.Command--ing Officer Lt.-Col. Inamul Haq."
Still another report Exh. P. L. Was lodged by Major Irshad Hussain A/Commanding Officer stating: ---I am A/Commanding Officer 23 Pb. Regt. No. 2283474. Sepoy Talib Hussain - of my Unit had gone to see a film in Felix Cinema, Kohat on 02 December, 1976 alongwith a few more O. Rs. Of my Unit. He has been injured by police firing. It is reported to me that police resorted to unprovoked firing at the O. Rs. In which he was injured. The police party was headed by an A. S. I. The police personnel who are reported to be responsible for this action, consisted of the A. S. I., one head constable and two more constables.
Irshad Hussain., Major A/Commanding Officer."
6. P. W. 2 Capt. Doctor Farooq Yousaf Khan A. M. C. Performed the post-mortem examination on the dead body of N. K. Lal Hussain and found
(a) An exit wound on the back on the level of 4th inter costal space near the medial margin of right scapula 1---x 2 -----.
(b) One entrance wound on the back to the right of the first lumbar vertebrae. 1/4" dia, circular.
(c) One entrance wound on the right arm and exit of the same is the triceps muscle of the right upper arm.
(d) An entrance wound ----- with inverted edges along the anterior border of the left deltoid muscle.
(e) Exit wound at the level of the 6th and 7th inter costal space, 7th rib fractured.
7. P. W. 5 Dr. Kausar A.I Shah examined Kundal Khan and found the following wounds on his person:
(a) One entrance wound 1/3' x 1/3' in dia in the hypogastrium 1/4' above the public phasis.
(b) One exit wound on the back of right buttock 1/2' x 1/2' in diameter.
8. Prosecution examined Abdul Ghaffar, P. W. 17 Assistant Manager, Felix Cinema. He was present at the time of occurrence. . He stated that at about 2-30 p.m. He heard some row from outside the Booking Office followed by report of fire shots. He came out of the office of Booking Clerk and saw about 3/4 police personnel having caught hold of a person. They were dragging him towards the Manager's Office where they confined him; that Muhammad A.I A. S. I. Had directed the police constables to take the person to the Manager's Office and he had uttered the following words in Pushto :- "Take this dalla, confine this dalla and beat him."
Thereafter Muhammad A.I enquired from him about the telephone and he took him to the Proprietor's room wherefrom Muhammad A.I rang up the police station and asked for police force ; that A. S. I. Was still busy in talking to the police station when he heard the report of fire shots from the Manager's Office whereupon Muhammad A.I left the telephone and rushed towards the Manager's Office accompanied by him. When Muhammad A.I opened the Manager Office's door he saw that the person, who was taken inside the Manager's Office, was lying on the floor. He also saw Kundal Khan accused reclining against the wall, injured on his leg near the window of the Booking Office. Muhammad A.I after seeing the Army Jawan lying in the Manager's room, closed the door again, came out and placed Kundal Khan in a car and sent him away. Later on Malko Khan S. H. O.
Alongwith some other police personnel came to the cinema. He had brought a suzuki van in which the body of Army Jawan, lying in the office of the Manager, was removed and the Suzuki drove to the police station. While leaving, Muhammad A.I accused directed him to clean the Manager's Office.
9. Nazir Khan, P. W. 18 Booking Clerk of the Cinema was present at the time of occurrence. He also heard the row outside followed by fire shots. He came out of the Booking Office and saw 4/5 police personnel having caught hold of a person and, they were dragging him towards the Manager's Office. He also saw Kundal Khan in injured condition resting against a wall in the Verandah of the cinema. Later on, he heard the report of two MOTC shots. He went out to the Manager's room and saw a Fauji lying murdered on the floor of the office. He was the same person who was earlier dragged by the police to the Manager's room. Later on he saw the dead body of the Fauji being taken in a Suzuki by the police while Kundal Khan was taken in a car. After some time Major Mahmood came and took the key of the Manager's room from the Chowkidar of the Cinema and opened the room. He took the witness alongwith him and showed him various articles lying inside the room and outside it; then he locked the room. Next day, in his presence, Major Mahmood took into possession articles mentioned in Memo. Exh. P. B. And he signed the Memo. As attesting witness.
10: Ashok Kumar, P. W. 19 was a Sweeper of the Cinema. He was present in the Cinema when at about 2 p.m. He saw a Fauji in injured condition and some other Faujis coming from the side of Booking Window. Later on, he heard some fire shots near the Booking Window and ran towards the main hail of the cinema and made an exit through the other gate, and then heard few more shots.
He was later on asked by Abdul Ghaffar, P. W., to clean the Manager's Office where the blood was lying on the floor. He sprinkled water and dried-up the room with saw dust.
11. Ashiq Hussain, P. W. 20 gave ocular account of the occurrence. He was present with the deceased and was standing in the queue and witnessed the occurrence right from the inception to the end when N. K. Lai Hussain was shot in the Manager's room.
12. Ashraf, P. W. 22 a "Chholas" vendor was also examined by the prosecution. He knew Kundal Khan accused and Muhammad A.I A.S.I. Before the occurrence. He saw Kundal Khan firing at a civilian person who was hit and fell in the middle door of the verandah. Another Fauji who was stand--ing in the queue, caught hold of the sten-gun of Kundal Khan and the A. S. I. Who was armed with a 'tamancha' told Kundal Khan to take care of himself as -he was going to shoot the man who had held Kundal Khan's sten-gun. The A: S. 1. Fired, hit Kundal Khan instead of the Fauji who was holding his gun. Some other constables who were present, ran after the Fauji and caught hold of him and dragged him towards the Manager's office. After about 4/5 minutes he heard two fire shots.
12-A. Muhammad Ramzan, P. W. 23 was present at the Cinema at the crucial time and had asked another sepoy to purchase a ticket for him by handing over his Pay Book. . He saw A.I Muhammad armed with a pistol and two constables armed with sten-guns. The A. S. I. Caught hold of his shirt - and gave him two slaps for disturbing the formation of queue. He retreated but the police constable hit him with baton. He was injured and started bleeding. He was advised by his other companions to leave the place and go for dressing his wound.
13. Talib Hussain, P. W. 24 was also examined. He had gone to the Cinema where he found the A. S. I.
And some foot constables armed with various weapons. A. S. I. Was beating the people standing in the queue with his cross-belt and others were using their batons which resulted in injuries to Sepoy Muhammad Ramzan, P: W. 23 ; that a pandemonium prevalied and he heard N. K. Lai Hussain protesting against the maltreatment of the persons in the queue by the police. In reply, the police started being N. K. Lai Hussain and he saw the Police constable, armed with a sten-gun a short stature person with moustaches, aiming his gun and firing at him which hit him on his left thigh. He staggered and fell outside the Cinema precinct and later on be was taken to the hospital for medical aid:
14. Nasirul Mulk, S. 1. P. W. 26 was S. H. O. Police Station Kohat Cantt. He had requisitioned police force for patrol duty as 2-12-1976 was Eid day. Khani Zaman H. C: and 15 F. Cs. Including Gul Rauf and Mir Abbas reported to him for Gasht duty. The Head Constable was armed with a sten--gun while the F. Cs. Were armed with .303 bore rifles. He deputed A. S. 1. Muhammad A.I and others for patrol duty in the city. He was in his quarter at about 3-30 p.m. When he learnt about the occurrence and received the murasla Exh. Z. 27 from A. S. I. Muhammad A.I. He informed the S. P. Of the District and registered a case vide F. I. R. No. 446 dated 2-12-1976. He alongwith some policemen went to the spot in a car. He found the dead body of N. K. Lai Hussain lying half inside the room of the Manager and half in the Verandah of the Cinema ; and sent the same in a Suzuki van to the police station and also sent Kundal Khan to the hospital for medical attendance. He took into possession the pistol, produced by A. S. I. Muhammad A.I allegedly recovered from one of the Sepoys. Later on Lt: Col Inamul Haq came to the police station and asked for the body of N. K. Lai Hussain. Thereafter, he arrested Muhammad A.I A. S. 1. And Khani Zaman and two other acquitted accused Gul Rauf and Kundal Khan, F. Cs. He checked the arms and ammunition issued to the police personnel on that day. And found Mir Abbas bad two cartridges less than total issued to him but he. Produced two empties Exh. Z. 2 and which he took into possession along--with his rifle Exh. Z. 1 vide Memo. Exh. P. X. ; and also took into possession revolver Exh. Z. 9, rifle of other accused Gul Rauf Exh. Z. 8 and sten- gun of Khani Zaman Exh. Z. 7.
15. Ashraf, P. W. Was also examined as C. W. 1 as conviction under section 4 of the Prohibition Act was proved against him in his examination. .
16. Mian Nasimul Haq, Lawyer Magistrate was examined as G. W.
2. He had recorded the statements of the accused as witnesses in F. I. R. 446 and had produced copies of statements Exhs. Z. 15 to Exh.
Z. 24 respectively of Muhammad A.I, Khani Zaman, Gul Rauf, Kundal Khan and Mir Abbas. .
17. Khani Zaman appellant was examined under section 342, Cr. P. C. By the learned trial Judge and he admitted being on duty alongwith his co---accused in Felix Cinema on 2-12-1276 and also that he was armed with a sten-gun Exh. Z.
7. Rest of the allegations regarding the occurrence and killing of N. K. Lai Hussain were denied by him. As regards his statement, recorded by the Enquiry Magistrate on 12-12-1976 he stated that be was illiterate and was not examined by the Enquiry Magistrate. Regarding the main incident he stated: "The Army wad annoyed over this. Incident though one of my co-accused, namely, Kundal Khan, had been seriously injured. The Army had brought great pressure on the local Administration so much so that without any valid reason the investigation by the police was stopped and the P. Ws.
Were either procured from the Army who had been tutored or the civilians namely Abdul Ghaffar, Nazir Khan who are respectively the co-proprietor and employee of the Cinema which ties in the Cantt. Area and constructed on the land leased out by the M: E. O. To the proprietary. The Licensing Authority of the said Cinema is also the Army so they had been compelled to depose against the innocent accused. Besides, they had also been threatened with dire consequences of taking over the Cinema from them and the cancel--lation of the lease as also the license. Then these two witnesses had also been confined by the Army authorities in the Billiard Room of the Cinema until they had been obliged to make a statement to the Enquiry Magistrate favourable to the Army authorities. Ashraf P. W. Is not only a previous convict and not worthy of credit but also had been dug out from somewhere to depose against the accused. Even the Enquiry Officer had partisan attitude through out this enquiry. He was quite co-operative with the Army authorities against the interest of the accused. Reference be made to the fact that his leave was cancelled and was summoned from the village to continue with the enquiry."
18. The learned trial Judge while convicting the accused based his judg--ment on the testimony of Mir Abbas in the following words (paragraph 33 of judgment dated 5-4-1977) :- "Undoubtedly the evidence of Mir Abbas P. W. Cannot be transferred. To this Session file but in the background of the case his statement recorded by a competent Magistrate can be considered for the purposes of corroboration."
"According to the statement Exb. Z. 19 of Mir Abbas the full account of which has been furnished elsewhere in this judgment, goes a long way to show that four constables, including Gul Rauf and Khani Zaman joined hands to drag the unfortunate N. K. Lal Hussain into the Mana--ger's Office where Khani Zaman accused H. C. Snatched the rifle of Mir Abbas and fired two shots with it, killing the deceased there and then. This is further reinforced by the evidence of S. I. Nasirul Mulk P. W. 26 to whom the two empties and the rifle was produced by Mir Abbas and who had taken the same into possession vide Memo. Exh. P. X. It is in turn fortified by the report Exh. P. Y./1 of the Director, Forensic Science Laboratory, Peshawar that these two bullets have been fired from rifle No, K. 3603 given to the S. H. O. By Mir Abbas P. W"
"There is overwhelming evidence against Gul Rauf and Khani Zaman accused for having shut up the deceased in the Manager's Office and after rendering him completely helpless they had murdered him. It is indeed a cold-blooded murder by those who are responsible for enduring peace and safety for the law abiding citizens. It is indeed horrifying to find custodians of law to take the law into their own hands and take his life mercilessly whom they were under the duty to protect. The two accused had not merely committed a penal offence of culp9ble homicide amounting to murder but had brought slur on the force to which they belonged and also debased the uniform they were wearing at the relevant time as the insignia of their authority. Consequently I find Khani Zaman and Gul Rauf guilty under section 302/34, P. P. C: for the murder of N. K. Lal Hussain and finding no extenuating circumstances I sentence Khani Zaman and Gul Rauf accused to death subject to the confirmation by the High Court . . . . .---
19. Learned counsel for the appellant strenuously contended that the statement of Mir Abbas which is made anchor sheet of the prosecution case, is neither admissible nor enough to sustain the conviction on a capital charge against Khani Zaman appellant ; that the statement of Mir Abbas as recorded by the Committing Magistrate would show that he had assigned the major role of killing N. K. Lal Hussain to the appellant Khani Zaman and has completely exonerated himself; that even for the sake of argument if it is believed that this statement was owned by Mir Abbas at the trial, it would not be a statement of a co-accused affecting himself and some other of such accused persons who are being jointly tried for the same offence as he has not incriminated himself to the extent as he had incriminated Khani Zaman appellant, and, where more persons than one are being tried jointly for offences, one of which is a major offence and the other is minor offence and those offences are interconnected, if the person who makes the confession, does not incriminate himself so far as the major offence is concerned it cannot be said that the confession or statement or admission "affects" him as well -as the others. Reference to the statement of Mir Abbas may be, made here in order to elaborate the point raised by the learned counsel for the appellant. In his statement Mir Abbas stated:- "I was on duty at the Second Class Booking Booth, Felix Cinema, Kohat Cantt. On 2-12-1976 when I heard an uproar from side in the verandah of the cinema followed by report of fire shot. I went towards the verandah and saw Kundal Khan Constable lying wounded on the ground; then I saw Gul Rauf, Constable, Nawab Khan Constable and Gul Muzaffar, Constable and Khani Zaman Head Constable having caught hold of a person in civilian dress, and they were dragging him forcibly towards the Manager's room. Near the door of the Manager's room Kbani Zaman snatched my rifle and fired with it on the person, in the civilian dress who was held by the aforesaid Constables, two shots. The man was hit and fell to the ground in the Manager's room and died them' and- there.
Muhammad A.I, A. S. 1., who bad gone to make a telephone call, came, wrote a murasla and sent it to the Police Station through Khani Zaman Head Constable. The man who was killed in the Manager's room was empty handed at the time of occurrence. I had not seen any weapon with that person that after a short while a Suzuki van came there alongwith a white colour car and S. H.
O. Nasirul Mulk in a police lorry alongwtth other police personnel ; and took the dead body and the injured in the two vehicles i.e. White car and the Suzuki van ; that the S. H. O. Nasirul Mulk took two empties of '303 bore from me which had been fired from my rifle."
20. A perusal of this statement would show that it cannot be used under the provisions of Evidence Act, either under section 30 or any other relevant provision of the said Act because section 30 applies to confessions and not to statements which do not admit the guilt of the confessing party.
The word 'confession' as used in the Act cannot be construed as meaning a statement by an.
Accused `suggesting the inference that he committed' the crime. It must either admit in terms the offence or at any rate substantially) all the facts which constitute the offence. It has, however, been remarked in some cases that a statement is not inadmissible against a co-accused' merely because it is not a complete or detailed confession up to the hilt and that though the ordinary case contemplated by section 30 is where the confessing person directly implicates another as well as himself, there is no reason for holding that the section is limited to such cases where a confession indirectly affects a co-accused or minimises the guilt of the maker and exaggerates the guilt .Of the co-accused ; but all these cases were decided before the decision by Privy Council in Narayana Swami's case AIR 1939 P C 47 and their correctness is open to question. But here this proposition would not be open to debate because the statement used by the trial Judge neither falls under the category of `confession' nor in any way, would be admissible against the co- accused. The statement of one accused cannot be taken as evidence against another accused under section 30 of the Act, unless the parties are admittedly pari delicto, that is, unless the confessing accused implicates himself to the full or as much as his co-accused whom he criminates. It follows, therefore, that exculpatory or explanatory statements are inadmissible under the section, as they cannot be said to. `affect' their marker. The learned Judges of the High Court also, when considering this evidence, could not form any definite opinion about the admissibility of the statement (Exh. Z. 19) of Mir Abbas nor have they, in their judgment, treated this piece of evidence as sufficient to sustain the conviction of Khani Zaman appellant (in para. 10) and have not made any mention of the evidentiary value of this statement to base conviction thereon ; nor have they made any attempt to show that this piece of evidence is admissible under any of the provisions of the Evidence Act.
21. Next section which may be considered in connection with the said statement is section 80 of the Evidence Act. This section merely gives sanction to the maxim: omnia praesumuntur rite esse acta with regard to documents taken in the course of a judicial proceeding. It does not render admissible any particular kind of evidence but only dispenses with the necessity of formal proof in the case of certain documents taken in accordance,-- with law. The section only applies to two classes of documents (1) a document purporting to be the record of evidence of a witness given is judicial ,proceedings and (2) a document purporting to be the record of the statement or confession of prisoner or an accused person. Thus, this provision of law would also not help the prosecution. .
22. The result of the above discussion is that the statement of Mir Abbas, if taken out of consideration, will leave the prosecution with no evidence to connect Khani Zaman appellant with the murder of N. K. Lai Hussain as the evidence of other witnesses has already been briefly discussed in the foregoing paragraphs. It is evident that none of them had actually D seen the firing inside the Manager's room resulting in the death of the deceased though all of them are unanimous in their assertion that the police officers including the appellant dragged the deceased to the Manager's room under the orders of Muhammad A.I A. S: I. The learned High Court Judges also considered this aspect of the case and acquitted Gul Rauf holding that: "In our view the application of section 34 is not justified in this case. The murder was brought about by the personal volition of Khani Zaman and he alone is responsible for firing twice at the deceased without being assisted or aided by Gul Rauf whose mere presence in the room has already been shown as part of his duty.'."
Thus, this appeal is accepted. The conviction and sentence of Khani Zaman appellant is set aside.
He shall be released forthwith, if not required in any other case.