' SH. RIAZ AHMED, J.---The appellant Muhammad Zakaria was tried by the Sessions Judge, Kasur on charge under section 302, P.P.C. For having committed the murder of Sabir Ali, Sub-Inspector Police.
He was also tried on another charge under section 353, P.P.C. On having been found guilty of both the charges, the learned Sessions Judge convicted the appellant under section 302, P.P.C. And sentenced him to death and to pay a fine of Rs,5,000 or in default thereof to suffer R.I. For a term of 2 years. He was also directed to pay compensation amounting to Rs,25,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to suffer S.I. For a term of 6 months. On the charge under section 353, P.P.C., the appellant was sentenced to undergo R.I. For term of 2 years.
2. The case was then referred to the Lahore High Court under section 374, Cr.P.C. And the appellant assailed his conviction through an appeal. A revision petition was also filed by the widow of the deceased seeking enhancement of compensation. Vide judgment impugned, the appeal and the revision were dismissed and the reference was answered in affirmative and death sentence awarded to the appellant was confirmed. Aggrieved by the impugned judgment, the appellant sought leave to appeal from this Court and vide orders, dated 5-4-1995 leave to appeal was granted to consider whether the ratio decidendi of Mashal Khan's case reported as 1975 SCM R 80 was applicable to the facts and circumstances of this case and whether the High Court was justified in confirming the death sentence awarded to the appellant. Before proceedings further, it is essential to make a reference to the facts of this case.
3. The occurrence in this case had taken place on 6-2-1989 at about 1.30 p.m. Near Adda Talwandi at a distance of 14 miles from Police Station Kanganpur in District Kasur. The occurrence was reported to Ghulam Rasool, S.H.O., Police Station Chunian at 2-25 p.m. By Muhammad Ashraf, Head Constable in the police and who was posted at the Police Lines, Kasur while he lived in Veeran Chak No,4 within the jurisdiction of the Police Station Chunian in District Kasur. On the fateful day, the first informant after having received information about the sudden ailment of his wife boarded a bus at about 12 noon for proceeding to his village while the deceased Sabir Ali, Sub-Inspector in the Police accompanied by Ahmad Din, Foot Constable in police uniforms also boarded the same bus as they wanted to reach the Police Post Theeng. According to the first informant, at about 1-15 p.m. The bus reached Ada Talwandi when they saw the appellant standing at the Adda armed with a .12 bore double-barrel gun. On the sight of the appellant, Sabir Ali, S.I. Deceased remarked that the appellant was a criminal and, therefore, must be checked. The deceased handing over the files with him to the complainant, alighted from the bus alongwith Ahmad Din, F.C. At the sight of the deceased in police uniform, the appellant started running towards south. Meanwhile, the complainant also alighted from the bus and, thus, all the three Police Officers started chasing the appellant and the deceased commanded the appellant to stop. The appellant instead of stopping, turned back and fired a shot with the double-barrel gun, hitting the abdoment of the deceased. On the receipt of this shot, Sabir Ali fell down and the appellant managed to run away. The complainant and Ahmad Din, F.C. Continued the chase and the appellant then fired a second shot at them, which did not cause any damage and, thus, the appellant managed to slip away.
Deceased Sabir Ali was taken to Chunian Hospital in a truck by the complainant and Ahmad Din and they informed the higher police officers telephonically about the occurrence. The deceased succumbed to the injuries before reaching the hospital.
4. The service cap, service badge and the service revolver of the deceased were produced before the Investigating Officer who then started to search the appellant but he was not available and thus his warrants of arrests were obtained, but despite that the appellant could not be arrested and, consequently, a proclamation was issued and the appellant was declared as proclaimed offender. It was after about a year and one a half months that the appellant was arrested on 18-3- 1990 by Liaqat Ali, S.H.O., Police Station Khuddian. At the time of the arrest, the appellant was armed with a gun.
5. Now it is necessary to refer to the facts and circumstances is Mashal Khan's case (supra). The background in which the crime was committed by Mashal Khan was that he had been elected as leader of certain Cabinwalas. The continued misbehaviour and highhandedness of certain police officials alienated the syumpathies of cabin holders and even the public. The cabin holders had united under the leadership of Mashal Khan, a sturdy Pathan. The cabin holders also filed a civil suit and obtained injunction against the efforts of the police for eviction of the cabins. The local police resented the attitude of the cabin holders, who previously were at their mercy and after the issuance of the said order, the cabin holders no longer cared to satisfy the demands of the police.
According to Mashal Khan, the police believed that Mashal Khan was responsible for this change of attitude and this fact was admitted by the Police Officer in his deposition. Sub-Inspector Police Ghazanfar Hussain visited the site of cabins early in the morning and finding two cabins of Ramzani unattended, ordered the head constable to remove them to the police station as unclaimed property. The Sub-Inspector did not make any effort to ascertain the names of the owners by inquiring from the neighbouring cabinwallas or from their leader Mashal Khan. According to this Court, the police had not removed these cabins in their anxiety to preserve the unclaimed property or to remove any obstruction. The idea behind removing the cabin was to set an example of authority. Ramzani finding that his cabins were missing and learning from the neighbouring cabinwallas about the removal of the cabins got a legal notice served on the Sub-Inspector on the same day. The notice was not very complimentary and it contained threat of possession coming from an ordinary cabin holder. The notice further revealed that true copy of the injunction order had been enclosed with the notice. According to this Court, the Sub-Inspector felt scandalized and only course natural for him was to give a round of the locality and impress the cabin holders with his authority to save his face. The Sub-Inspector in this case had proceeded to the spot accompanied by 3 constables and they first looked for Ramzani, but not finding him, they went to Mashal Khan. The Sub-Inspector then asked them to show him Court orders or to accompany the police party to the Thana. Obviously, it could not be expected that the plaintiffs to the suit would have copies of the injunction order because the same were issued to the Chief Officer of the Karachi Municipal Corporation directing the Chief Officer, his employees and the police to refrain from removing the cabins of Ramzani and 11 other persons. The copies of 4 injunction orders had been exhibited each in favour of 3 cabin holders and one of those persons was appellant Mashal Khan. After receiving the notice of contempt alongwith copy of the injunction order, the Sub- Inspector had no business to ask the plaintiffs to the suit to provide for further copies and his approach to the plaintiffs under the guise of investigation with the police force exhibited an intention to overawe or otherwise influence the cabin holders, who had invoked the jurisdiction of the Court. This Court also remarked that in these circumstances the conduct of the police officer in certain respects by itself amounted to contempt of Court. According to this Couri, the demand for papers was unreasonable and constituted an interference with the functions of a Court seized of the case and further pre-emptory demand to go to the police station was unjustified. According to the judgment of the High Court in Mashal Khan's case, it reached the finding of fact that exchange of hot words had taken place when Mashal Khan was ordered to produce the injunction order and when Mashal Khan declined to do so, the S.H.O. .Asked him to accompany the police party to the police station whereupon Mashal Khan brought out the gun and threatened the Thanedar with it was well as the constables when they tried to overpower him. Then Mashal Khan took to his heals and was pursued by Haider Raza constable whom he eventually shot. This Court had concluded that the police party had no authority and they were acting in violation of law in more than one respect in demanding to see the injunction and that Mashal Khan should accompany them to the police station. According to this Court, if Mashal Khan would have gone with them, he would have been in a virtual state of arrest. This Court endorsed the finding of the trial Judge in holding that by these actions, Mashal Khan had been infuriated up to the point he desisted from anything except the mere show of force by aiming his gun at the Police Officer and thus having kept them at a distance, he attempted to escape from them. According to this Court, Mashal Khan by running was not committing an offence and, consequently, the attempt by the police to arrest him was wholly unjustified and could have been resisted by the use of force. This Court further observed that in order to avoid arrest, Mashal Khan was not justified in causing death of the pursuer. Having so effective a weapon as a gun, it was the legal duty of Mashal Khan to so use it as to stave off the danger of arrest with minimum use of force. According to this Court, Mashal Khan should have shot Haider Raza in the legs or arms, but having shot Haider Raza at his face, was a deliberate act and he had exceeded the right of private defence because he must have known that death would be inevitable consequence.
6. In the light of the abovementioned facts and circumstances and for the reasons referred to above, this Court came to the conclusion that Mashal Khan was guilty under section 304, Part I, P.P.C. And not under section 302, P.P.C. And was, thus, awarded a sentence of 5 years' R.I.
7. On the basis of the ratio in Mashal Khan's case, the counsel for the appellant vehemently argued that facts and circumstances of Mashal Khan's case are similar and the appellant having shot Sabir Ali deceased had at the most committed an offence under section 304, Part I, P.P.C., and therefore, the award of capital punishment was illegal. After considering the facts and circumstances of this case and those of Mashal Khan's case and having heard the learned counsel at length, we'regret, we are unable to agree with the learned counsel for the appellant. Ahmad Din, F.C., who appeared in Court, stated that the appellant had been previously involved in theft cases and he had been producing him in various Courts. In our considered opinion, on the sight of the appellant armed with a .12 bore gun, standing at Adda Talwandi, the deceased Sabir Ali, a Sub- Inspector of the Police, was justified to check him. It was laudable on the part of the Sub-Inspector to check show of arms and particularly with those persons who did not enjoy good previous record.
The next question is that after having seen the Sub-Inspector, the appellant started running away and when the Sub-Inspector commanded him to stop, instead of stopping. The appellant turned back and in the callous way, fired a shot killing the Sub-Inspector at the spot. It is further pertinent to mention that Sabir Ali deceased was himself armed with a service revolver, but he did not touch the same while chasing the appellant. In Mashal Khan's case, the police had no authority in view of the injunctions having been issued to demand copies of the injunction orders or to take Mashal Khan forcibly to the police station. The circumstances of the precedent case are distinguishable inasmuch as there is a background of some hostility between the police and Mashal Khan who had been elected as leader by the cabin holders. This hostility became aggravated when after the issuance of the injunction, the cabin holders refused to meet the demands of the police. That is why, this Court had come to the conclusion that the police party had no business to arrest Mashal Khan and, thus, Mashal Khan was justified in running away and till that time he had not committed any offence, but when he shot a fire, he exceeded the right of self-defence. In the circumstances of the case with which we are dealing, the motivating factor for the deceased was to check the appellant, who was standing with a double-barrel gun at the thus stop, a public place and to check the appellant and to ascertain the circumstances in which he was standing. The deceased was doing nothing but was performing his legal duty and was, thus, justified to have intended to check the appellant unlike the police party demands in Mashal Khan's case. In this view of the matter, we find no similarity between the facts of the present case and those in the precedent case. The performance of a lawful duty by a public officer is not an act of aggression so as to justify use of force. No right of private defence in the circumstances of the present case would be said to have commenced or in other words was available to the appellant. In our view, this was a brutal act on the part of the appellant and the prosecution has proved its case beyond any shadow of doubt and the same also stands corroborated by the abscondence of the appellant for a year and one a half months. Such abscondence is a clear pointer towards his guilt. We are fortified in this view by judgments of this Court reported as Gul Hasan v. The State (PLD 1969 SC 89), Muhammad Bashir v. The State (1970 SCM R 351), Muhammad Rafiq v. The State (PLD 1974 SC 65).
8. The matter does not end here and it would be pertinent to refer to the provisions of section 54, Cr.P.C. This section lays down 9 conditions under which a police officer can arrest a person without warrant. Clause (1) of the said section provides that the person sought to be arrested must have been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. The 4th clause of the said section reads as under.--- "any person in whose possession. Anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with .Reference to such thing;"
' Perusal of these provisions would clearly show that the appellant who had been involved in theft cases was seen with a double-barrel gun at Adda Talwandi. The deceased, a Sub-Inspector Police could have been reasonably suspected that the involvement of the appellant in some offence and, therefore, on this score as well the deceased was justified to check the appellant. The question similar to the one in hand also arose in the case reported as Nazir Ahmad v. The State (1970 SCM R 7). In that case, Nazir Ahmad (petitioner) was convicted under section 302, P.P.C. And was sentenced to death for the murder of Muhammad Sarwar, a foot constable. The facts were that the petitioner was involved in two criminal cases at the time of the occurrence. Warrants of his arrest were received in the Police Station Bhagbanpura to which the deceased constable was attached and were returned to the Court concerned after futile efforts to find out his whereabouts. It so happened that the deceased accompanied by Chanan Din, a fellow constable, was on duty to keep check on the bad characters of the area. While partolling Ram Bazar in plain clothes, they saw the petitioner in the company of another person and they directed him to accompany them to the police station. On the way, the petitioner whipped out a knife and caused repeated injuries with it to the deceased, who fell on the street and died at the spot. The assault in that case took place in full public view as in the present case. It was laid down by this Court that in the facts and circumstances of the case, it was within the authority of the deceased to arrest the petitioner although he did not possess any warrant of arrest. The contention raised to the effect that the petitioner had the right to free himself from the wrongful custody was repelled and it was held that it had no substance in law. In our view, although in the precedent case the deceased constable had the information about the issuance of warrants of arrest against the petitioner, but he did not possess the same, but in the circumstances of the present case, the deceased Sub-Inspector could reasonably suspect that the appellant was concerned in some nefarious activity having a past record of theft cases against him armed with a double-barrel gun standing on an Adda, therefore, the deceased Sub-Inspector was justified to check the appellant. Section 54, Cr.P.C. Was interpreted by this Court in the judgment reported as Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore (1993 PCr.LJ 91) and it was held that section 54, Cr.P.C. Confers a wide power and, therefore,. Such power has to be construed, interpreted and defined strictly. It was further held that a general definition of what constitutes reasonableness in a complaint or suspicion and credibility of the information cannot be given, but must depend upon the existence of a tangible legal evidence within the cognizance of the Police Officer and he must judge whether it is sufficient to establish the reasonableness and credibility of the charge, information or suspicion. Judged on the touchstone of this criteria, we are of the view that the deceased Sub-Inspector could have reasonably suspected about involvement of the appellant in view of the previous record and having been armed with a gun.
9. The upshot of the above discussion is that we do not find any merit in this appeal and the same is hereby dismissed.