' GHULAM MUJADDID MIRZA, J.-- Abdul Sattar son of Muhammad Yousaf (30), Rajput Chauhan, Constable in the Rangers, resident of Village Door, District Jhelum, was tried for the murder of Abdul Hakeem, Rangers Sub-Inspector, by the Additional Sessions Judge, Lahore. The trial Judge, by judgment dated 29-10-1977, found him guilty under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,2,000; or, in default six months' R.I.
2. The convict has appealed to this Court. On 30-4-1980 when the case came ,up before Aftab Farrukh, J, (as he then was), he issued notice suo motu to the appellant for showing cause why the sentence of death be not awarded to him in case his conviction for the offence he was convicted is maintained. Hence the case became a D.B. Matter. The appeal and the suo motu case are being decided by this judgment.
3. It was at about quarter past nine at night on 19-1-1975 that Abdul Hakeem Sub-Inspector was shot at by the appellant. Initially a case under section 307, P.P.C. Was registered at Police Station, Manawan. Report (Exh.P.E.) was lodged by Muhammad Aslam, Inspector, Satluj Rangers.
4. According to the report, on 19-1-1975, Sub-Inspector Maula Bakhsh Company Commandar Rangers, J.C.P. Wahga informed Muhammad Aslam that at 21-15 night Abdul Hakeem, Sub- Inspector No, 2259 Platoon Commander Rangers, Bhano Chak Check Post returned to the post after checking. At that time Abdul Sattar Constable No, 27172 was on duty. He had a radio. That was lying on a stool outside the barracks. The radio was on. Sub-Inspector Abdul Hakeem ordered Guard Commander Bohadai her to get the radio switched off. Bahadar Sher told Abdul Satter to switch off.
Abdul Sattar did not obey the order. Instead he took the radio inside the barrack. Sub-Inspector Abdul Hakeem asked the Guard Commander Bahadar sher why it had not been stopped. He said that Abdul Satter refused to comply with the order. On this, Sub-Inspector Abdul Hakeem ordered Bahadar Sher that as Abdul Satter had failed to carry out the orders he should be brought down from the sentry post. At this Abdul Sattar started abusing the Sub-Inspector and the Guard Commander.
5. Sub-Inspector Abdul Hakeem, alongwith N.K-29835 Meharban, L/N.K No, 25366 Bahadar Sher and Constable No, 27959 Muhammad Akbar proceeded towards the stair-case in order to bring down Abdul Satter from the sentry post. Abdul Satter loaded his rifle. As Abdul Hakeem stepped on the stair-case, Abdul Satter fired. Sub-Inspector Abdul Hakeem told Abdul Sattar not to fire.
Neverthless, he fired the second shot. Sub-Inspector Abdul Hakeem was hit in the back. He fell down.
6. Muhammad Aslam Inspector alongwith Maula Bakhsh Sub-Inspector and Shaukat Hussain Constable were proceeding towards Chak Bano for patrol. They heard the shots. N.K. Meharban Khan met them on the way and told them what had happened. The party reached the Check Post and brought down Abdul Satter Constable from the sentry post. They took into possession rifle No, C-48361 alongwith 2 empties of 303. Abdul Sattar was sent to the Headquarter where he was detained. Sub-Inspector Abdul Hakeem was sent for medical aid to the hospital.
7. On 19-1-1975 at 11 p.m., Dr. Muhammad Aslam Qureshi, Casualty Medical Officer, Mayo Hospital, Lahore, medically examined Abdul Hakeem. He found one 1/8" circular fire-arm wound on the posterior chest on left aspect. The patient was in shock and gasping condition. The injury was kept under observation and the injured was sent to the South Surgical Ward for treatment.
8. About an hour after his examination, Abdul Hakeem died. Dr. Sabir Ali, Deputy Surgeon, Medico- Legal, conducted post-mortem examination on the following day at 4 p.m. He noticed a fire-arm wound of entry 4" x 3" going deep 14" interior angle of scapula on the back of left chest.
9. On opening the chest the course of the projectile was found to be as follows:- "The projectile fractured the 9th left rib posteriorly. It shattered the 9th, 10th, 11th and 12th dorsal vertebrae, punctured the lower lobe of the left lung through and through before hitting the vertebrae. It then shattered right lobe of the liver and right kidney. Four thin deformed metallic pieces were found lying over the inner curvature of right hip bone."
10. According to the opinion of the doctor the injury was inflicted by fire-arm which was sufficient to cause death in the ordinary course of nature. Injury was on the back of the deceased.
11. Prosecution examined Meharban Khan and Muhammad Akbar as eye-witnesses. The other evidence is the recovery of crime empties from the spot and the rifle which was used by the appellant for the murder of Abdul Hakeem. Reliance was also placed on the medical evidence referred to above and the oral dying declaration.
12. Meharban Khan, Constable No, 29835, deposed that on day of occurrence he was posted at Bhano Chak Post. After 9 o'clock in the night Abdul Satter accused replaced Akbar Constable at the sentry post. Besides him, Akbar Constable and Bahadar Sher L/N.K. Were also present at Bhano Chak Post. Between 9/10 p.m., Abdul Hakeem, Sub-Inspector returned from Nakabandi. A radio lying on the table was on. It was lying outside the barrack. Abdul Hakeem asked Bahadar Sher to Switch off the radio. Bahadar Sher directed Abdul Satter to stop it. Abdul Satter refused but removed the radio inside the barrack. Abdul Hakeem came out of his room and asked Bahadar Sher why the radio was still playing. The latter repeated his direction to Abdul Satter. He did not comply with. On this Abdul Hakeem asked Bahadar Sher to remove Abdul Satter from the sentry post. Abdul Sattar refused to leave the post. On the other hand he abused Abdul Hakeem. Abdul Hakeem also used hot words and asked Abdul Satter to come down from the sentry post. Abdul Hakeem tried to go up-stairs. He was threatened by Abdul Satter not to come near him. Abdul Sattar loaded his rifle.
When Abdul Hakeem reached third step, the accused fired. The shot missed. Abdul Hakeem ordered the accused not to fire but he fired the second shot.. Abdul Hakeem was hit and he collapsed on the stairs.
13. Meharban Khan, Akbar and Bahadar Sher took up positions. Abdul Hakeem was in pain. They wanted to remove him but Abdul Sattar did not allow them to do so. Hence they retreated. The witness then went to the Company Head Quarter to report the matter to the Company Commander. On his way he met Maula Bakhsh, Sub-Inspector and Shaukat Constable. Maula Bakhsh was Company Commander. He told them what had happened. They came back to Bhano Chak Post. They prevailed upon the accused to remove the injured. Abdul Satter came down from the sentry post. He was arrested. Rifle was taken from him. Abdul Hakeem was put in a jeep. Haji Parvez, D.S.P. Took him to the hospital.
14. According to this witness, the shot which ultimately proved fatal hit the deceased in the chest when Abdul Hakeem was facing the accused. The witness was sure that the deceased was not hit in the back. He insisted in saying that the deceased was hit from the front side.
15. Muhammad Akbar Constable is the next eye-witness. On the night of ocurrence he was on duty.
He was replaced by Abdul Satter from the sentry post. Akbar went to the barracks.
' As about 9-15 p.m., Abdul Hakeem Sub-Inspector came to Bhano Chak Post after finishing his duty of Naka. A radio was lying on the table. Akbar did not know to whom it belonged. When Abdul Hakeem came he objected to the playing of the radio. Abdul Satter came down and took the radio to the barracks and kept it on. On this Abdul Hakeem summoned the Guard Commander Sher Bahadar. He again objected to the playing of the radio.
' Then Abdul Hakeem directly asked Abdul Sattar as to why the radio had not been stopped. He ordered Abdul Satter to come down from the O.P. Post, He refused to comply with the order. On the other hand he said that a report be entered against him. An altercation took place between the Sub-Inspector and the Constable.
' Abdul Hakeem then himself went up-stairs. Abdul Satter fired at him. He missed the first shot.
Abdul Hakeem went a step forward and called upon the accused not to fire. Abdul Hakeem had not yet reached the top when the accused fired at him for the second time. "The bullet hit Abdul Hakeem on his back". He collapsed. Sher Bahadar ordered all the constables present there to take positions. Meharban was directed to go to the Company Commandar to lodge report. A shortwhile after that Maula Bakhsh arrived at the scene. He ordered the accused to come down alongwith the rifle. Abdul Sattar came down and surrendered his rifle. Maula Bakhsh took the rifle into possession.
16. This witness admitted that Abdul Hakeem was brought in injured condition from outside the Rangers Post Bhano Chak, by some Rangers and was put on a cot in the courtyard of the Rangers Post. In the presence of this witness, Abdul. Hakeem did not make any statement. He was lying unconscious. The witness said that he was not aware of any talk before he saw Abdul Hakeem being placed on the cot.
17. The other evidence is the oral dying declaration alleged to have been made before Haji Ahmad Parvaiz, Deputy Superintendent Rangers. The deceased on his way to the hospital blamed the appellant for shooting him.
18 The appellant when examined by the trial Court, denied all the allegations. He pleaded not guilty and said that he would produce defence evidence but later on changed his mind. In reply to question. "Why this case against you"?, he gave the following version:-- "On 19-1-1975 at about 10-30 p.m. While I was on duty at Bhanu Chak Post as sentry, Abdul Hakeem was brought from the border in injured condition by the officials of Rangers Department who had accompanied him to Indo-Pakistan Border on special Nakabandi duty. He was placed on a cot in the courtyard of Bhanu Chak Post. After about 15 minutes an official jeep arrived and Abdul Hakeem was taken away to the hospital. The cot was not placed in the jeep. Abdul Hakeem was lying unconscious on the cot. Then Wing Commander Afreedi came to Bhanu Chak Post and disarmed all the constables, and other officials on duty. The weapons were placed in the Malkhana of the post. The entire staff at Bhanu Chak Post was ordered to go to Wing Headquarter. I was also taken to that place. I remained on duty up to 11 p.m., and after completing the duty I deposited the rifle Exh.P.1 in the Malkhana. For four days I was confined to lock-up of Wing Headquarter under the orders of Wing Commander Afreedi. While in detention' I was tortured. After four days of my detention there I was handed over to Incharg P.P. Wahga. Rifle Exh. P.1 was similarly handed over to the police officer by Wing Headquarters officials. I was falsely implicated in this cae at the instance of Wing Commander Afreedi who was not happy with me because while posted at Wing Headquarter about 14 prior to the occurrence, I incurred his displeasure on account of some departmental altercation. Bahadar Sher P.W. And Khan Hassan P.W. Are related to Wing Commander Afreedi. They also got me implicated in this case. I never had any enmity with Abdul Hakeem and he was always kind to me. He also belonged to Jhelum."
19. Learned counsel appearing on behalf of the appellant argued that the ocular evidence was in conflict with the medical evidence. Therefore, no reliance could be placed on the testimony of the eye-witnesses. Learned counsel submitted that if once the ocular evidence is rejected then there is nothing left on which conviction can be based.
20. In the alternative, learned counsel contended that there is conflict between the rtestimony of the two eye-witnesses. On this ground also the evidence deserves to be rejected.
21. Last of all, it was contended that it was more probable that the deceased died the way the appellant explained in his statement.
22. We have also heard the learned counsel appearing for the State who supported the impugned judgment. According to him the case has been proved beyond doubt. There was no reason for the constables to falsely depose against the appellant.
23. There is conflict between the testimony of the two eye-witnesses. One of them (Meharban) said that the deceased was hit in the chest while the other was sure that the bullet hit the deceased in the back. According to the medical evidence the injury received by the deceased was in the back.
24. According to the recovery memo. Exh. P.S., rifle P.1 and two empties P.2/1-2 were taken into possession. It so appears that these were sent to the Forensic Science Laboratory. There is a report of the Director Forensic on the record. The report has neither been exhibited nor was tendered in evidence by the Public Prosecutor. It cannot, therefore, be pressed into service at this stage by the prosecution.
25. We are not impressed with the evidence pertaining to dying declaration. The reason being that the injury was of very serious type. The doctor who examined Abdul Hakeem said: "Patient in shock and gasping condition" In addition to this, Muhammad Akbar said that the injured did not talk in his presence.
26. Even, according to the evidence of Deputy Superintendent Rangers, the deceased himself did not disclose the name of his assailant but it was on the asking of the D.S.R. That the deceased said that he was shot at by Abdul Satter.
27. There is another important piece of evidence. Muhammad Akbar Constable admitted that he was sleeping in the barrack with Awaz Khan and Meharban Constables. Sher Bahadar was sleeping in his own separate room at that time, and that he only came out of the barrack when Sher Bahadar ordered the Constables to take positions. This shows that he and Meharban did not see the actual occurrence of shooting. He also admitted that the deceased was brought in an injured condition from outside Bhanu Chak Check Post by some rangers and he was placed on a cot in the courtyard of the said Post. He also admitted that the deceased did not make any statement in his presence as he Was unconscious and that he also did not make any statement to the police concerning anything which may have happened before he saw Abdul Hakeem, deceased, brougth from outside and being placed on a cot
28. Shabbir Hussain Sub-Inspector who investigated the case admitted that during the interrogation he did not inspect the Roznamcha of the Rangers Post Bhanu Chak.
' This not only creates doubt about Mehraban and Muhammad Akbar Constables having seen the occurrence but on the other hand lends support to the statement of the appellant.
29. Therefore, after taking all the facts into consideration, we are of the view that there is an el3ment of doubt in this case. The appellant is entitled to its benefit. He is accordingly acquitted. He shall be set at liberty forthwith, if not required in any other case.
' The suo motu notice issued for enhancement stands withdrawn.