P L D 1963 Dacca 47 (PLP)

(1) One abrasion 1" x " just above the left elbow joint. (2) One bruise size 3" x 1" below the left scapula. Age of the wound within 24 hours caused by blunt weapon. Cross‑examination: The injury on the person of Jahiruddin can be caused by a friendly hand. The injuries on the person of constable Maniruddin can also be caused by friendly hand." This statement of the injury being likely to have been caused by friendly hand, seems to lend support to the prosecution story, as stated by P. Ws. 8 and 9 and also P. W. 1 that the police party left with a dao after damaging the butt of the gun and the sweater of Jahir Mia.

11. D. W. 2 is the Officer‑in‑charge of Maulvi Bazar Police Station. He has stated that on 16‑11‑57, the local Surponch Serajul Islam and Abdul Hamid, father of the deceased; and Abdul Maquith with others approached him with a petition against Ghatu mongering and gambling in the locality. Basid Ali and others were complained against. He investigated into the case, started on the F.I.R. recorded at 1‑30 p.m. of 8‑1‑58, on the statement of Ismail Howaldar. He submitted charge -sheet in that case against Basid Ali and Abdul Hamid and several others. He stated in cross‑examination that there was no direction for arrest of anybody in the search warrant and he also stated that he did not examine Bijoy. He settled that he examined Jahir Mia but he did not examine Wasid Ali, the father of the boy, who was a charge‑sheet witness in the Police assault case.

12. D. W. Kala Mia is really the witness who has given the whole defence case. He stated that Basid Ali threw sulfi etc. at the police party at the time of the search of his premises and that not only Basid Ali was arrested for obstruction but also Jahir Ali and another Ghatu boy by the name of Bejoy were recovered from the hut. This witness further stated that there was a riotous mob of nearly 100 people who snatched away the arrested persons and took aggressive attitude attacking the police party. Pointing to the appellant Jahir Mia, he stated that he fired three shots in succession. This witness stated further: "The jamadar gave dohai but the; people snatched away the arrested persons from the constables. They were striking with dao, which were arrested by one of the constables which was injured in places. Then I heard a gunshot. The people when said that there was no rule for firing and saying so they attacked forcibly. Then again a constable fired a shot. The constables then ran away with whom we ran too. We came to our village and then went to the thana." Further, Police fired three shots one after the other in quick succession. "About 15/20 persons took part in the actual assault with dao and sulpi from a distance of 2/3 cubits from the police personnel."

13. We have discussed the evidence as above for the purpose of getting an overall picture of the whole case, and having regard to the fact that Mr. Salam Khan appearing for the appellants started his argument by challenging the whole prosecu tion story, holding that the firing by the Police was actuated by the instinct of self‑defence from a riotous mob armed with deadly weapons. The defence not having denied that Rashid Ahmed was killed by gunshot between 7 or 8 a.m. of 8‑1‑58, at Paikraj by appellant Jahir Mia on the orders of appellant Md. Ismail Howladar. It falls to us to consider how far the story of a riotous mob rescuing the arrested persons and attacking the police party with deadly weapons can be accepted.

14. The evidence of D. W. 2, as above, shows that Abdul Hamid, the father of the boy killed, along with several others approached the O. C. Kotwali towards the latter part of November 1957, complaining against Ghatu mongering. D. W. 2 having admitted the same and Exh. 2 the search warrant for the recovery of Jahir Mia having been issued at the instance of Wasid Ali, it does not seem reasonable to accept the story that the very party who invited the police intervention would go for the police party. D. W. 3 Kala Mia is the only solitary witness of the defence story of the riotious mob snatching away the arrested persons and of the mob attacking the police party with deadly weapons. If the mob swelled to 100 and if they were armed with deadly weapons, we fail to see how the police party could get off' with the minor kind of injuries as found by the defence witness No. 2, the injuries being mostly bruises and abrasion and only one skin deep incised wound. Further, as stated, this witness also did state that the injuries might also have been inflicted by friendly hands.

15. The evidence of the doctor of the prosecution side, namely, P. W. 2 discloses that there was no blackening mark at the wound of entry of the bullet thus indicating that the shot was not fired at close range. The prosecution story of the shot being fired from 80 to 90 cubits does not seem impossible. Even if it is a distance of 16 or 17 feet only and not more, it cannot be said that Rashid Ahmed was fired upon when he along with the riotous mob was actually upon the police party. D. W. 3's evidence is that the snatching of the arrested persons was already a fait accompli before the firing and before the mob started attacking the police party. We fail to see why the fire would be opened after the snatching was over and not at the time of snatching. We also fail to see why the crowd should attack the police party after they had realised their object. In the natural course the police party would have opened fire at the snatching itself, as there could be no snatching without assault. Further, if it is correct, as stated by D. W. 3, that the crowd was within 2/3 cubits from the police personnel, we see no reason why there was no blackening mark on the person shot as found by P. W. 2 Further, what is stated at the back of the search warrant relating to the arrest of Basid Ali and the recovery of Jahir Ali and Bejoy, seems to us to be an absurd postscript at the bottom after the signature of Abdul Hamid and others were obtained on the top of the opposite blank page of the search warrant. The search warrant being for the recovery of Jahir Ali only, entire statements seem to be embellishments with the purpose of raising the defence case. Moreover the story as disclosed by the appellant Ismail in the Command certificate is at variance with that disclosed on the back of the search warrant which clearly seems to indicate that the defence version is a false concoction. It also seems strange to us that D. W. 2 who investigated the case started on the F.I.R. of the police, did not examine Bejoy, nor even the charge‑sheet witness Wasid Ali. Having regard to the features, as above, we cannot accept the defence story.

16. Mr. Salam Khan cited the decision in Abdus Sattar Khan and others v. The Crown ((1953) 5 D L R 148) in which it was held as under: "Protection might be claimed by a police constable under section 76 of the Pakistan Penal Code for opening a fire, under the orders of a superior officer and killing a man thereby, if he could reasonably think that the officer had good reasons for ordering to fire into a disorderly crowd but no such protection could be sought if there was no riot in progress nor was there any evidence to show that the police party was in danger from the crowd." Mr. Salam Khan has sought the protection of section 76 of the Pakistan Penal Code on the authority of that decision. The facts of that case show that when the shot was fired from 20 cubits away and when the mob were on the run, the protection of section 76 of the Pakistan Penal Code could not be available to the defence by reason of their being want of good faith in such a case. The facts of the present case, as stated, show no existence of a riotous mob and also show that Rashid Ahmed was shot when he was running away.

17. Mr. Salam Khan has next referred to the decision in Queen‑Empress v. Subn Maol and others of which the facts and the decision are as under: "A caused crops to be sown on land, as to the enjoyment of which there was dispute between her and B. Persons having proceeded to reap the crops on behalf of B, the servants of A went to the place with the station house officer and some constables who were armed. The station house officer ordered the reapers to leave of reaping and to disperse, but they did not do; he then told one of the constables to fire, and he fired into the air. Some of the reapers remained and assumed a defiant attitude. The station‑house officer, without attempting to make any arrests and without warning the reapers that, if they did not desist from reaping, they would be fired at, gave orders to shoot, and one of the constables fired and mortally wounded one of the reapers. It was found that neither the station‑house officer nor the last mentioned constable believed that it was necessary for the public security to disperse the reapers by firing on them Held, that the station‑house officer and the constable were not acting in good faith and that the order to shoot was illegal and did not justify the constable and that both he and the station‑house officer were guilty of murder." This decision shows that mere defiant attitude would not justify the firing and the liability in case of firing in such a situation would be under section 302 of the Code. Our finding being that no riotous mob attacked the police party, this decision seems to go against Mr. Salam Khan inasmuch as he has asked us to consider the question of bringing the offence down to section 304 of the Pakistan Penal Code. In this decision cited the Sessions Judge held the accused guilty only under section 304 and gave a very lenient sentence. On revision for enhancement of sentence the High Court was of the opinion that there should have been an appeal by Government for conviction under section 302 of the Code. As the Government had not appealed, the High Court, in the circumstances of the case, enhanced the sentence to 10 years under section 304.

18. Mr. Salam Khan has argued that at any rate what appellant Ismail Howladar ordered, was to shoot and not shoot to kill and the other appellant Jahir Mia having acted in obedience to the orders of his superior, could not be held guilty for murder. The evidence on this particular point is as follows: P. W. 1. "I accompanied the Police party. When we arrived at the north‑west of the graveyard, at a distance of fifty cubits there from I saw Rashid Ahmed going towards the west by the pathway towards Idli Haor. Wasid then said "Halo Zamadar Saheb, there goes another of my accused. "Manir uddin constable (identified) called aloud asking my son to stop. At this he began to walk more quickly by that pathway. The A.S.I. then said that if he advanced further he would be shot at. Rashid Ahmed then began to run. Then the A.S.I. (identified) by pointing accused Muhammad Ismail (Howladar) ordered Jahir Mia to fire and constable Jahir Mia (id) fired two rounds simultaneously." We have already stated the evidence of the doctor as to the nature of the injuries. P. W. 3 stated: "Constable Maniruddin then asked him to stop. He did not stop. The A. S. I. then asked him to stop or he would be shot at. He did not stop and walked on. The A. S. I. then asked constable Jahir Mia to open fire. He then fired two rounds at Rashid Ahmed. Rashid Ahmed fell down on the ground. The police party then left me and ran away." There were two shots, though the defence witness No. 3 stated that there were three shots, perhaps, to intensify the alarming situation created by the riotous mob as suggested by the defence. The shots went one after another and both aimed at Rashid Ahmed. The evidence shows also that the shots were fired when the deceased was running. The story of riotous mob attacking the appellants with deadly weapons being not acceptable and the police party being not on the spot for the arrest or seizure of Rashid Ahmed, the shooting seems to be clearly unjustified. The order being to fire specifically at Rashid Ahmed, the liability is for the whole consequence. The shot; as pointed out by Mr. Subhan, learned counsel appearing for the State, was by rifle and by ball cartridges and in the region of the head. There is no evidence of previous blank fire. Under those circumstances it cannot but be held that the appellants knew that the shot was so imminently dangerous that it might in all probability cause death or such bodily injury as was likely to cause death.

19. The person ordering the shooting, namely appellant Ismail Howladar, as also the person shooting, namely appellant Jahir Mia, both knew what the consequence would be of such a shooting.

20. The plea of obedience to the order of the superior is of no avail to the appellant Jahir Mia. It might be a defence in the army, but under the civil law no such defence is available C to a person who knew that the order was clearly illegal and not justified by the circumstances. Under these circumstances, we find no ground for invoking section 304 of the Pakistan Penal Code.

21. Mr. Abdus Salam Khan also commented on the delay in filing the petition of complaint by Abdul Hamid. The first information report of the police case having been filed earlier on the same day as the date of occurrence, namely, 8‑1‑58, and the petition of complaint by Abdul Hamid not having been filed till 13‑1‑58, Mr. Salam has argued that the earlier information is true and the complaint is the result of concoction. This delay, in our opinion, throws no doubt on the prosecution case. There is evidence that the police party were in the village by 9‑1‑58, and committing depredations there and Abdul Hamid was made an accused in the F. I. R. Exh. B. There is further the evidence of P. W . 1 that he told P. W. 15 the Doraga, who held the inquest about the occurrence.

22. It is true that this witness has denied that P. W. 1 complained to him of murder, but then this witness P. W. 15 having drawn up the F. I. R. of the police case, it is not unlikely that he would refrain from taking steps on the statement of P‑. W. 1 made later at the inquest and also give a denial of the complainant's statement. Under these circumstances the delay in filing the petition of complaint does not affect the prosecution story.

23. So far as the conviction of appellant Ismail Howladar under section 342 of the Code goes, the learned Advocate has not made any arguments on the point. We have, however, examined the case against him under section 342 of the Pakistan Penal Code also and we are of the opinion that Basid Ali was illegally arrested and wrongfully confined by this appellant. So, there is no justification for any interference with this conviction also.

24. In the result, the appeal is dismissed and the conviction and sentences of the appellants are upheld. A. J. KHAN, J.‑

I agree. S. B./A. H. Appeal dismissed.