P L D 1959 (W (PLP)

ABDUL AZIZ KHAN, J.--‑Sube Khan was tried by the learned Sessions Judge, Lahore, under section 302 of the Pakistan Penal Code, the allegation against him being that on the 4th of May 1957, at 9‑30 p.m., he had murdered Muhammad Shafi, in the Motor Vehicle Depot Ground, situated in the Lahore Canton ment. Disagreeing with the unanimous opinion of the assessors, the learned Sessions Judge convicted him and sentenced him to death. The condemned person has appealed to this Court against his conviction and sentence. The case is also before us under section 374 of the Code of Criminal Procedure. This judgment will dispose of the appeal as well as the reference for the confirma tion of the death sentence.

2. Briefly stated the prosecution case is that on the eventful evening i.e.,, the .4th of May 1957, at 6 p.m., Babu (P, W. 7) took his cattle for grazing in the ground situate opposite the Motor Vehicle Depot. At about 9 p.m., when Sher Muhammad (P. W. 6) returned to his house in the Ganga Ice Factory, lie met Muhammad Shafi deceased coming out of Akbar's hotel. Muhammad Shafi deceased requested Sher Muhammad P. W. to take him on his cycle to the ground opposite to the Motor Vehicle Depot, where his brother Babu P. W. had taken his cattle for grazing. Accordingly, Sher Muhammad P. W. took Muhammad Shafi deceased to the ground on his cycle. When they reached a pool situate in the ground, Muhammad Shafi deceased shouted for his brother Babu. Simultaneously, a shot was fired from bungalow No. T/10‑A on Jhelum Road, which was then occupied by Major Sultan Majid. A little latter, Major Sultan Majid, the appellant and one Fateh Khan came out of the bungalow. The Major had a torch in his left hand while the appellant was carrying a D.B.B.L. gun. When they came close to Sher Muhammad and Muhammad Shafi deceased, they surrounded them. Major Sultan Majid shouted : "Haramzado you are thieves, you are badmashes, you have conspired with my enemies and have come to kill me. You should be killed." Sher Muhammad P. W. replied that they were businessmen and peace‑loving citizens. He also explained that they had come to fetch Babu P. W. who had brought his cattle for grazing. Major Sultan Majid said: "Bako mat" and ordered his com panions to take them to the bungalow. Sube Khan appellant and Fateh Khan started pushing Muhammad Shafi deceased a nd Sher Muhammad P. W. towards the bungalow of Major Majid. After they had pushed them for a distance of 10/ 12 yards, Muhammad Shafi deceased requested the Major not to take them to the bungalow. Major Sultan Majid said: "Bakwas mat karo, I am nat prepared to listen to anything you say." Sube Khan appellant again started pushing Muhammad Shafi deceased with the butt‑end of his gun. Addressing Sube Khan appellant, the deceased said that he was begging of the Major to let them go and, therefore, Sube Khan should not be harsh to them. Major Sultan Majid covered Muhammad Shafi deceased with his pistol and said something in Pushto whereupon Sube Khan stepped back and fired a shot at Muhammad Shafi, who fell and died instantaneously. Major Sultan Majid then ordered his companions to take Sher Muhammad P. W. to his bungalow. Accordingly, Sher Muhammad P. W. was taken to the bungalow along with his cycle.

3. Assistant Sub‑Inspector Muhammad Ali (P. W. 12) was on patrol duty. On hearing the reports of the gunshots, he went to the bungalow of Major Sultan Majid and found Sher Muhammad P. W. present in the verandah. He recorded Sher Muhammad's statement Exhibit P. H. Sher Muhammad stated therein, inter alia :‑ "When we were at a distance of 100 karams from Sir Huge Rose Road, Muhammad Shafi shouted to his brother Babu. We heard the report of a gunshot from a bungalow situated on Jhelum Road. Soon after three persons came from that direction. Major Sahib abused us and said `You are thieves and have come to kill me.' Thereupon, Muhammad Shafi replied that they were poor people and that their cattle were grazing in the ground. He further said that they had always been bringing their cattle to the ground for grazing. Major Sahib said that we should go to his bungalow, where we would be confined. Accordingly, both of us walked to the bungalow ahead of them. Muhammad Shafi again said : `We are poor people, why are you taking us.' The Major's orderly, whose name I later on learnt to be Sube Khan, pushed both of us and said : `Bakwas mat karo'. Sube Khan, the orderly ‑of the Major, fired a shot from a .12 bore D.B.B.L. gun at Muhammad Shafi which hit him near the ear. Muhammad Shafi reeled and fell down and began to bleed from his head. He died instantaneously. At this Major Sahib and his com panions became nervous and said that a murder had taken place. He, therefore, brought me to his bungalow along with my bicycle. Babu has also seen his brother Muhammad Shafi being murdered." The A. S. I. went to the ground, prepared the injury statement and the inquest report, and despatched the dead body to the mortuary ‑ for post‑mortem examination. He collected blood stained earth from the spot and sealed it into a parcel vide memo. Exh. P. N. Sube Khan appellant produced a .12 bore D.B.B.L. gun (Exh. P. 10) which the A. S. I. took into possession and sealed into a parcel vide memo. Exh. P. J. Sube Khan also produced a .12 bore D.B.B.L. empty cartridge (Exh. P. 11) from his pocket which the A. S. I. sealed into a parcel vide memo. Exh. P. K. The A. S. I. also recovered an empty cartridge Exh. P. 12 from the compound of Major Sultan Majid's bungalow and took it into possession vide memo. Exh. P. M. The A. S. I. also took into possession Sher Muhammad's cycle (Exh. P. 9) vide memo. Exh. P. O. The cycle was lying in the verandah of the bungalow. Major Sultan Majid produced a licence for the D.B.B.L. gun (Exh. P. 10) which the A. S. I. took into possession vide memo. Exh. P. L.

4. Doctor Abdul Hasan (P. W. 1), who conducted the post mortem examination on the 5th of May 1957, at 12‑50 p.m., observed the following injury on the dead body of Muhammad Shafi :‑

1. An ovalish wound with inverted edges, 1" x ", surrounded by a blackened scortched area, 2 " in diameter, situated just below the angle of the lower jaw, left side (gunshot entrance wound). On dissection the scalp on the right side was found to be highly ecchymosed. There was a comminuted fracture of the right parietal, right temporal and right side of occipital and right side of frontal bone also of the right sygoma in an area of 7 " x 4 ", as seen externally. Cerebral membrane on the right side was lacerated and the right side of the brain was extensively lacerated. In the base of the skull, frontal fossa in its right half, whole of the right middle fossa, right side of the occipital frossa were completely demolished with pieces of bone shattered heir, and there. There was a lacerated wound, " x 1/6", through the cartilage of right pinna, just, below the tragus. Externla auditary canal was intact. In the mouth of the wound small specules (sic) of bone were found. The doctor found 4 ozs. of digested food in the stomach of the deceased. Death, in the opinion of the doctor, was due to the injury, which was fatal in the ordinary course of nature, and which bad been caused with a firearm.

5. In the course of the investigation, Sube Khan appellant offered to make a confessional statement. Accordingly, he was produced before Begum Surayya Irshad, Magistrate 1st Class (P. W. 10) on the 5th of May 1957, at 12‑55 p.m. but the Magistrate did not take steps to have the handcuffs removed and to turn the members of the police force out of the court‑room before recording Sube Khan's confessional statement Exh. P. T.

6. Doctor Khurshid Ahmad Qureshi, in charge Foransic Science Laboratory, C. I. D. (P. W. 11) fired two test cartridges (Exhs. P. 15 and P. 16) from the '12 bore D.B.B.L. gun (Exh. P. 10) and compared the characteristics of the test cartridges with those present on the crime cartridges Exhs. P. 11 and P.

12. As a result of his examination, Mr. Qureshi came to the conclusion that one of the crime cartridges had been fired from the left barrel of the gun Exh. P. 10.

7. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He stated before the committing Magistrate :‑ "On 19th April 1957, a theft had occurred in the house of Major Sultan Majid accused. I along with two other Sepoys was deputed to keep a watch in the house. On 4th May 1957 the night was dark and cloudy. It was drizzling and a fast wind was blowing. We heard the alarm of `chor chor'. All of us fired. I cannot say with whose fire the man had died." At the trial, he made the following statement :‑ "On the night of the occurrence I was on duty at the residence of Major Sultan Majid in Lahore Cantonment. I was one of the guards. I had no rifle with me on that night. I was on duty at the residence of Major Sultan Majid with two other guards. At about 10‑45 p.m. we heard a noise. All three of us fired simultaneously with guns. The night was dark. It was blowing. There was rain at that time. We heard the noise of `thief thief' from inside the bungalow. We fired in that direction. I cannot say to whom the guns which we used belong." He examined Lt. Munawar Husain, Station Staff Officer, Lahore Cantonment, as a' d9fence witness. Lt. Munawar Husain stated that no cattle could be grazed in the Cantonment area. He further stated that thefts were common in the Cantonment and that army personnel have to patrol during the night to check unauthorised persons. 8. 1t will be seen from the above statement of facts that the prosecution case rests on :‑ (1) The evidence of Sher Muhammad (P. W. 6) and Babu (P. W. 7), the alleged eye‑witnesses of the occurrence ; (2) the confessional statement of the appellant ; and (3) the recoveries referred to above.

9. It would be convenient to consider the confessional statement Exh. P. T. before dealing with the other evidence. As already stated, the Magistrate allowed the police to remain in the court‑room and did not order the removal of the appellant's handcuffs, which is contrary to the procedure prescribed for recording confessional statements. The learned Sessions Judge rightly ruled out the confessional statement from consideration, and I see no reason to differ from him.

10. The conviction is thus based on the evidence of the two eye‑witnesses and the recoveries referred to above.

11. I now proceed to consider the evidence of the alleged eye‑witnesses of the occurrence Sher Muhammad (P. W. 6) described the occurrence in the following words :‑ "We got down near the pool. Muhammad Shafi called out to Babu. There was a gunfire from the bungalow of Major Sultan Majid. The bungalow is at a distance of 200 yards from the pool of water in the centre of the ground. Shortly afterwards three persons came towards us from the residence of Major Sultan Majid. One of them had an electric torch with him. He was Major Sultan Majid. He was holding the torch in the left hand. Ile had a pistol in his right hand. Sube Khan had a D. f

3. B.L. gun (Exh. P. 10) with him. Fateh Khan was empty‑handed. They were saying `Major Sahib', `Major Sahib' when they came near us. They surrounded us. Major Sultan Majid shouted : `Haramzada you are thieves, you are badmashes, you have conspired with my enemies and have come to kill me, you should be killed.' I replied that we were noble citizens and businessmen. I explained to Major Sultan Maita that had come there as the cattle had been grazing in the ground. Major Sultan Majid shouted : `Bako mat I am not prepared to listen to anything'. Major Sultan Majid asked his companions that they should take us to his bungalow and confine us there. Major Sultan Majid pushed me. Sube Khan and Fateh Khan started pushing Muhammad Shafi. They pushed us to a distance of ten or twelve yards when Muhammad Shaft requested Major Sultan Majid with folded hands saying that they were poor persons and should not be taken to the bungalow. He further said that they should be permitted to go back to their houses. Major Sultan Majid again repeated : 'Bakwas mat karo, I am not prepared to listen to any thing.' Sube Khan began pushing Muhammad Shaft with the butt of the D.B.B.L. gun Exh. P.

10. Muhammad Shafi said to Sube Khan that he was entreating Major Sahib and why he was unnecessarily cruel towards him. He also told the accused that he should feel sorry. Sube Khan looked towards Major Sultan Majid. The Major pointed with his pistol towards Muhammad Shaft and said something in Pushto. Sube Khan got one step back and fired with the gun at Muhammad Shafi. He got injured and fell. He expired. I asked Major Sultan Majid that my companion had been injured and for God sake he should be taken to the hospital. He did not care. The deceased bled from the gunshot injury caused to him. The Major ordered his companions to take me to his bungalow and finish me there. I was forcibly taken to the bungalow of Major Sultan Majid. My cycle was also taken along with them to the bungalow of Major Sultan Majid." Babu (P. W. 7) corroborated the above statement of Sher Muhammad P. W.

12. Relying on the fact that Sher Muhammad P. W. had tried to. implicate Major Sultan Majid at the trial, Mr. Mahmud Ali, the learned counsel for the appellant, streneously urged that Sher Muhammad was an unreliable witness. As regards Babu, the learned counsel contended that his statement too suffered from the same defect and that he being a brother of the deceased should not be relied upon. I have already given an English version of the first information report lodged by Sh‑r Muhammad, P. W. soon after the occurrence. The part which he assigned to Major Sultan Majid at the trial is committed in the first information report. It, therefore, can not be denied that he improved upon the prosecution case at the trial. Babu P. W. was duly confronted with his statement before the police in which he too had completely omitted the part assigned to Major Sultan Majid at the trial. He too has tried to improve upon the prosecution case at the trial. t

3. It is an admitted fact that A. S. I. Muhammad Ali P. W. reached the house of Major Sultan Majid at about 11‑30 p.m. on hearing reports of gunshots and found Sher Muhammad P. W. present in the bungalow. He also found Sher Muhammad's cycle laying in the verandah of the bungalow. These facts substantially support Sher Muhammad's claim that he was present at the spot at the relevant time.

14. According to the site plan, Babu P. W. was grazing his cattle at a distance of nearly 200 yards from the scene of occurrence. He stated that he advanced towards Sher Muhammad P. W. and his brother Muhammad Shafi deceased when he heard their shouts. Their is nothing on the record to show the exact spot from which he saw the occurrence. His statement, how ever, tends to show that he saw the occurrence from very close quarters. He has given all the details mentioned by Sher Muhammad P. W. I have, however, serious doubts in my mind that Babu P. W. saw the occurrence.

15. There are certain indications on the record which throw doubt on Babu's statement that he observed the occurrence or that he was even present at the spot at the material time. It seems that the A. S. I. did not find Babu P. W. in the vicinity. This is why his statement was recorded by the investigating officer on the next morning. It is also significant that Babu took no steps to go to the police station to lodge a report. On the contrary, he stated that he left for his house and reached there after two or two and a half hours. It is in evidence that his house is only two to three furlongs from the scene of occurrence. All these things taken together create a reasonable doubt regarding Babu's presence at the spot at the relevant time. 1, therefore, do not consider it safe to rely on his evidence.

16. As already stated, the presence of Sher Muhammad P. W. at the spot at the relevant time cannot be denied. His statement 'that Sube Khan appellant fired the fatal shot is supported by the recovery of the gun and of an empty cartridge from Sube Khan's person. His statement that a shot was fired from the bungalow is also supported by the recovery of an empty cartridge from the compound of the bungalow. It, however, remains to consider the circumstances under which the fatal shot was fired.

17. Mr. Mahmud Ali, the learned counsel for the appellant, urged that the fatal shot was fired under a belief that the deceased and Sher Muhammad P. W. were thieves. In support of his contention he relied on the A. S. I's. statement to the effect that a theft had taken place in the house of Major Sultan Majid during the month of April 1957.

18. In the course of the arguments, Mr. Mahmud Ali prayed that he be allowed to lead additional evidence to show that Sube Khan appellant had been detailed on guard duty on Major Sultan Matid's bungalow on the relevant night. He examined Naik Zardad Khan (C. W. 2) of the 12th F. F. R. who stated that under the orders of the Adjutant he had detailed Sube Khan appellant on guard duty at the private residence of Major Sultan Majid. Major Jan Gul Khan, Adjutant, 12th F. F. R. (C. W. 1) stated that when an officer apprehends danger to his life or property, a guard may be detailed at his residence by the Adjutant of the Regiment. He was, however, unable to cite any rule or regulation to this effect. Relying on the evidence of these witnesses, Mr. Mahmud Ali contended that since a 'theft had taken place in his house, Major Sultan Majid had asked for a guard at his private residence. Relying on the appellant's statement, Mr. Mahmud Ali argued that the appellant fired the fatal shot in the belief that Sher Muhammad P. W. and Muhammad Shafi deceased were thieves. There is, however, no satisfactory evidence on the record in support of this contention. 1, therefore, cannot accept it.

19. Relying on section 76 of the Pakistan Penal Code, Mr. Mahmud Ali next contended that his client had committed no offence. Section 76 of the Code reads :‑ "Nothing is an offence which is, done by a person who is, or who by reason of a mistake f fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it." Section 33 of the Pakistan Army Act provides: "(1) Any person subject to this Act who disobeys in such a manner as to show a wilful defiance of authority a lawful command given personally by his superior officer, knowing or having reason to believe him to be such, shall, on conviction by court martial, be punished with rigorous imprisonment for a term which may extend to fourteen years, or with such less punishment as is in this Act mentioned. (2) Any person subject to this Act who disobeys the lawful command of his superior officer, knowing or having reason to believe him to be such, shall, on conviction by court- martial, if he commits such offence on active service, be punished with rigorous imprisonment for a term which may extend to fourteen years, or with such less punishment as is in this Act mentioned; and if he commits such offence not on active service, be punished with rigorous imprisonment for a term which may extend to five years, or with such less punish ment as is in this Act mentioned." I have given my most anxious thought to this aspect of the case. I would accept, for the sake of argument, that the appellant had been properly detailed on guard duty at the residence of Major Sultan Majid who had admittedly given his private gun to the appellant. If the part attributed to Major Sultan Majid immediately before the occurrence is accepted‑and I see no reason why it should not be accepted it indicates that the appellant fired the fatal shot on being ordered by Major Sultan Majid. The question still remains to be considered whether the act of the appellant in such circumstances is covered by section 76 of the Pakistan Penal Code. There is no doubt that a sepoy is trained to obey blindly the lawful command of his superior officer. He has also to decide in a split second whether he is going to obey the command or is going to disobey and risk the consequences if the command turns out to be lawful.

20. In Niamat Khan and others v. The Empress (1883 P R 17) Rattigan, J., observed :‑ "To entitle a person to claim the benefit of section 76 it is necessary to show the existence of a state of facts which would justify the belief in good faith, interpreting the later expression with reference to section 52, * * * * * that the person to whom the order was given was bound by law to obey it. Thus in the case of a soldier, the Penal Code does not recognise the mere duty of blind obedience to the commands of a superior as sufficient to protect him from the penal conse quences of his act. Difficult as the position may appear to be, the law requires that the soldier should exercise his own judgment, and unless the actual circumstances are of such a character that he may have reasonably entertained the belief that the order was one which he was bound to obey, he will be responsible like any other sane person for his act, although he may have committed it under the erroneous supposition that his superior was by law authorised to issue the order. His mistake in short must be a mistake entertained in good faith on a question of act. Such a construction of the law may indeed subject the soldier to military penalties, and, in certain cases, place him in the serious dilemma of either refusing to obey an order which he believed to be unjustifiable in fact, thereby rendering himself liable to military law, or, by obeying it, to subject himself to the general criminal law of the land. But on a balance of considerations the Legislature has deemed it wise for the safety of the community that no special exemp tion should be allowed to a soldier who commits what would ordinarily be a penal offence from that enjoyed by any other person, who does the same act believing in good faith that he is bound by law to do it. A mistake of law in either case would afford no protection, though it might go in mitigation of punishment, and thus military discipline, while it regulates the conduct of a soldier in military matters is made subject to a higher law in favour of public safety, when the act which the military discipline attempts to enforce or to justify is one which affects the person or property of another. In such a case the civil law looks to the surrounding circumstances to see whether they are of such a character as would lead a man of ordinary intelligence to entertain a reasonable belief that he is bound by law to obey the command of his superior." Similarly, in Queen‑Empress v. Latif Khan (I L R 20 Bom. 394) it was held :‑ "Nothing .but fear of instant death is a defence for a policeman who tortures anyone by the order of a superior. The maxim respondent superior has no application in such a case. A further elucidation of the principle enunciated by Rattigan, J. is to be found in Allahrakhio and another v. The Crown (A I R 1924 Sind 33). The admitted, facts are that the appellant fired a shot on a person who had ostensibly done no legal wrong requiring such a drastic measure. The victim was not even guilty of trespass. The appellant knew that he had been detailed to perform a specific, duty of a private nature, which had nothing to do with his military duties. To be a lawful command within the meaning of" section 33 of the Pakistan Army Act, 1952, the command must relate to a military duty, that is to say disobedience to it must intend to impede, delay or prevent a military proceeding. A command given to a soldier to perform some domestic work not relating to military duty is not a lawful command.

21. After carefully considering all the circumstances on the record, I find it impossible to hold that the appellant is entitled to the benefit of section 76 of the Pakistan Penal Code. Obedience to an illegal order can be used in mitigation of punishment Niamat Khan v. The Empress. Respectfully following this view, I dismiss the appeal, but reduce the sentence from death to one of transportation for life.

22. The sentence of death imposed on the appellant is not MUNSHI, J.

‑I agree generally with my learned brother that this appeal should be dismissed and the conviction of the appellant under section 302 of the Pakistan Penal Code maintained. As for the sentence, keeping in view the peculiar circumstances in which the fatal shot was fired by the appellant, and the fact that he had no personal reason to kill the deceased, I think the sentence of transportation for life will be the appropriate sentence. A. H. Sentence reduced.