1975 PLP 80 (SCMR)

CORNELIUS, J.‑The appellant Mashal Khan stands convicted under section 302, Pakistan Penal Code and sentenced to death for the murder by shooting of a police constable by name Hyder Raza committed on the 29th April 1957. The shooting took place in broad daylight in a public thoroughfare in the city of Karachi, and was preceded by certain incidents which will be dealt with presently which clearly indicate that the occurrence must have attracted a good deal of public attention. Consequently it is somewhat surprising to find that in the grounds of appeal, the appellant should persist with his original plea that the case was wholly false and fabricated. That plea was indeed abandoned in the course of hearing of the appeal before the High Court where the counsel appearing for the appellant "candidly conceded that on the evidence led by the prosecution he could not make out a case of acquittal for the appellant". Leave to appeal to this Court was granted to Mashal Khan on the basis that he fired at Hyder Raza in the course of an attempt made by number of police officers to arrest him, and the questions which arose were whether there was any legal authority under which the attempt to arrest was made, whether any right of private defence arose in favour of Mashal Khan, and if so whether he had exceeded the right. For the determination of these questions, which attracted no notice in the judgment delivered in the High Court, it is necessary for me to re‑appraise the evidence. Another reason for doing so also appears clearly from the following conclusions contained in the lengthy judgment delivered by the sessions Judge. In paragraph 24 of his judgment, the learned Judge has observed as follows :‑ "There is thus clear and direct evidence to show that the Sub‑Inspector of Police and the police party infuriated Mashal Khan who took out his gun and aimed it at them. The policemen ran helter skelter for cover." Further, in paragraph 31, the following observation occurs :‑ "There is thus clear evidence to show that as a result of the quarrel the accused took out his gun and aimed it at the police." Yet, in ascertaining the nature of the offence and the punishment appropriate to it, the Judge in the concluding paragraph of his judgment has declared as follows :‑ "The murder was cold‑blooded and brutal. There are hardly any extenuating circumstances justifying inflicting of lesser penalty. I, therefore, sentence the accused to be hanged by the neck till he be dead ." Having concluded in the earlier part of his judgment that the action of the accused was performed under provocation, it is clearly inconsistent to describe it eventually as "cold‑blooded and brutal" and to visit it with the extreme penalty of law. Somewhat earlier in his judgment, in paragraph 17, the Judge had given a resume of the incidents which preceded the occurrence. It will be of advantage to quote his words in full, since after examining the evidence we are satisfied that they represent a correct and factual statement of the background of the crime. We note, with regret, that this aspect of the case has not received the notice it deserved in the judgment of the High Court. The trial Judge observed as under :‑ "But in this case it appears that some of the police officers of that area bad by their continued misbehaviour and highhandedness alienated the sympathies of the neighbouring cabin‑holders and even the public. The cabin‑holders had united under the leadership of Mashal Khan a sturdy Pathan. They had filed suits in the civil Court and obtained injunctions. The local police resented this attitude on the part of the cabin‑holders who had previously been at their mercy. Apparently the cabin‑holders no longer cared to satisfy their demands. As stated by Mashal Khan, the police believed that Mashal Khan was responsible for this change of attitude and this is admitted by H. C. Muhammad Zaman in his deposition. S. I. P. Ghazanfar Hussain visited the place on 29th April 1958, early in the morning and finding the two cabins of Ramzani unattended ordered the head constable to remove them to the police station as unclaimed property. The S. I. P. could easily have ascertained the name of the owner by enquiring about it from the neighbouring cabin‑wallas or from their leader Mashal Khan. 1 am not prepared to believe that the police removed these cabins in their anxiety to preserve the unclaimed property or to remove any obstruction. Obviously the idea in remov ing the cabins was to set an example of their authority. It appears that Ramzani on finding his cabins missing and learning from the brother cabin‑wallas about their removal, got the legal notice served on the S. I. P. that same day. This notice Exh. 6 was not very com plementary and it contained threat of possession coming from an ordinary cabin‑holder. The notice shows that a true copy of the injunction order had been enclosed with this notice. The S. I. P. felt scandalised. The only natural course for him was to give a round of the locality and impress the cabin‑wallas with his authority to save his face." The further findings of the trial Judge are that the thanedar Ghazanfar Hussain proceeded to the spot accompanied by three constables, namely, Fazal Abbas and Ali Akbar who gave evidence of the occurrence and the deceased Hyder Raza. They looked first for Ramzani, but not finding him, they went to Mashal Khan. The thanedar asked Mashal Khan to show him the Court orders, i.e. injunction orders or to accompany the police party to the thana. The first request was not a reasonable one, since it was not to be expected that the plaintiffs to the suit could have copies of the injunc tion orders. These were issued by the Court to the Chief Officer of the Karachi Municipal Corporation and directed the Chief Officer, his employees and the police to refrain from removing the cabins of Ramzani and some eleven other persons. Copies of four injunction orders were exhibited in the' case, each in favour of three cabin‑holders, and one of those persons was the appellant Mashal Khan. Moreover, it seems to us that after receiving the notice of contempt, along with a copy of the injunction order, the thanedar had no business to ask the plaintiff's to the suit to provide for further copies, and his approach to these plaintiffs, under the guise of investigation, with so large a force as three police constables already exhibits an intention to overawe or otherwise influence the very parties who had issued a notice of contempt to him. The matter being already in Court, such conduct by the police officer might, in certain aspects, be held to amount by itself to contempt of Court. The demand for papers was unreasonable and constituted an inter ference with the functions of a Court seized of the case and the further peremptory demand to go to the police station was in our opinion entirely unjustified. In the judgment of the High Court the findings of fact are that there was an exchange of hot words when Mashal Khan was ordered to produce the injunction orders and declined to do so, and that thereafter the thanedar asked him to accompany the party to the police station whereupon he produced the gun and threatened the thanedar with it, as well as the con stables when they tried to overpower him, and then took to his heels, pursued by Hyder Raza whom he eventually shot. The question whether the police party was entitled to demand to see the injunction orders, or to require Mashal Khan to accompany them to the thana was not examined in the High Court. In our view this question was of critical importance in determining the nature of Mashal Khan's offence. The police party had no authority, and were acting in violation of the law, in more than one respects, in demanding to see the injunction, and that Mashal Khan should accompany them to the thana. Clearly, if he had gone r, with them, he would have been in a state of virtual arrest. The trial Judge was right in holding that by these actions Mashal Khan had been infuriated. Up to that point he desisted from anything except the mere show of force by aiming his gun at the police officers, and thus having kept them at distance, he attempted to escape from them. We cannot see that in running away, he was committing any offence, and consequently the attempt by the police to arrest him was wholly unjustified, and could justly have been resisted by the use of force. But that is not equivalent to saying that in order to avoid arrest, he was justified in causing the death of a pursuer. Having so effective a weapon as a gun, it was the legal duty of Mashal Khan so to use it as to stave off the danger of arrest with the minimum use of force. Mashal Khan should have shot Hyder Raza in the leg or the arm. His shooting at the face of the deceased must be regarded as deliberate. In our opinion, he exceeded the right of private defence, since he must have known that death would be the inevitable consequence. On these findings of fact, we consider that the offence of Mashal Khan properly falls under section 304, P. P. C., Part I and we allow the appeal to this extent that we set aside the conviction and sentence under section 302, P. P. C. and replace them by a conviction under section 304, P. P. C. and the sentence of five years rigorous imprisonment. Appeal partly allowed. Sentence reduced.