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Criminal Appeal No. 459 of 1961, decided on 10th April 1963.

Ss. 302 & 304, Part I‑Deceased killed by accused, a public servant, in an attempt to prevent imminent breach of peace‑Evidence disclosing no animus on part of accused to kill deceased‑Conviction under S. 302 altered to one under S. 304 Part I.

Shaukat Ali Khan for the State.

Syed A. N. M. Naslruddin for Respondent.

‑The appellant Matiur Rahman, a police constable, has been convicted under section 302 of the Pakistan Penal Code and sentenced there under to transportation for life. He was tried by the Sessions Judge at Sylhet with the aid of four assessors all of whom were of opinion that he was guilty under section 302 of the Code.

Prosecution case may briefly be stated thus: Khalilur Rahman (deceased) had married Manzil Khatun, a daughter of Khan Mahmud, about 17 or 18 years ago and since then he (Khalilur Rahman) had been living in his father‑in‑law's house and had been in possession of the disputed land at Kanchokar Bond. On Friday the 30th of December 1960, at about 8‑30 a.m. while Khalilur Rahman along with his relation P. W. 6, Matiur Rahman and his servant P. W. Demu, and one Ashraf Ali were transplanting paddy in the aforesaid land, accused Kubad Khan, his two Maternal uncles and three constables including appellant Matiur Rahman and two Chowkidars came to the land. The police party asked Khalilur Rahman to stop transplanting and to leave the land and in consequence all except Khalilur Rahman stopped transplantation and left the disputed land. Khalilur Rahman, however, continued transplantation whereupon appellant Matiur Rahman asked accused Kubad Khan to catch hold of Khalilur Rehman. At this Kubad Khan dealt a lathi blow on the back of the head of Khalilur Rabman. Khalilur Rahman turned round and advanced hold of accused Kubad Khan and when the former proceeded upto the eastern Ail of the disputed land, the appellant fired a shot at him from a distance of I0 or 12 cubits as a result of which Khalilur Rahman fell down dead. The dead body of Khalilur Rahman was carried by the Police to Maddhyanagar camp. In the meantime P. W. 11 Nur Jahan Bibi, mother of Khalilur Rahman got information about the death of her son from P. Ws. Sirin Khan and went to the river side and found the body of her son being loaded into a boat. She demanded the body but the police refused to hand it over. P. W. Nurjahan then boarded that boat and accompanied the dead body to Maddhyanagar camp where also she demanded the dead body but the police refused her saying that they would take it to Dharmapassa police station. Having thus been disappointed P. W. Nur Jahan returned home and on her way she met her son P. W. 1 Habibur Rahman to whom she reported that the dead body of Khalilur Rahman had not been given to her by the police. P. W. Habibur Rahman had also in the meantime got information about the occurrence from P: W. Sirin Khan at Mohanganj Bazar. Thereafter some of the complainant party including Nurjahan went to the thana and from there they went to Sunamganj by launch. At Sunamganj, too, they could not get the dead body of Khalilur Rahman, and P: W. Habibur Rahman, therefore, lodged a first information report with the Sunamganj police station which was forwarded to the Dharmapassa police station. On the 3rd of January 1961, P. W. Nurjahan Bibi made an application before the Sub‑Divisional Officer Sunamganj and obtained an order from him and thus she got the body of her son which was later buried at Sunamganj. Appellant Matiur Rahman too lodged a first information report Exh. 2 with the Dharmapassa police station on the 31st of December 1960 at 1 p.m. in which the date and time of the occurrence were put as 30th December 1960 at about 1 p.m. The dead body of Khalilur Rahman was also produced at the police station at the time of lodging of this first information report, namely Exh. 2. P. W. 7 Md. Abdul Mannan, an Assistant Sub‑Inspector of Police, recorded the first information report and held inquest on the body of Khalilur Rahman and seized the rifle Exh. II which was produced by the appellant Matiur Rahman. After usual investigation the two accused persons viz., Matiur Rahman and Kubad were put on trial before the learned Sessions Judge, Sylhet. Matiur Rahman was tried under section 302 of the Pakistan Penal Code while accused Kobad was tried under section 323 of the Code. The learned Sessions Judge convicted and sentenced the appellant Matiur Rahman as mentioned above and he also convicted and sentenced Kobad Khan under section 323 of the Pakistan Penal Code. Kobad Khan, however, has not appealed and he is, therefore, not before us at the moment.

Both the accused persons pleaded not guilty to the charges framed against them. So far as Kobad Khan is concerned, his defence is that he was in possession of the disputed land on which he transplanted paddy a few days before the date of occurrence. Khalilur Rahman and his companions were found damaging the said paddy plants and in consequence Kobad started a proceeding against them under section 145 of the Code of Criminal Procedure a few days before the date of the occurrence. Kobad's case is that he has been falsely implicated in the present case on account of the aforesaid proceeding under section 145 of the Code of Criminal Procedure. Appellant Matiur Rahman's special defence is that he along with other police officers had gone to Kamauara village on patrol duty and on receipt of certain information they came to the place of occurrence along with two Chowkidars and some members of the Union Council. The information given to them was to the following effect :‑

"My nephew and my sister had gone to their land. There they were being beaten."

They found Kubad and his mother being beaten and they asked Kbalilur Rahman and his men not to beat them whereupon the police party were attacked and Khalilur Rahman gave a dao kope on appellant Matiur Rahman which the latter adverted with his rifle. Appellant Matiur Rahman was thereafter caught hold of and when Khalilur Rahman (deceased) was about to deal another dao kope, appellant Matiur Rahman raised a cry and under the orders of Habildar fired one shot at Khalilur Rahman in self‑defence. Thereafter the dead body of Khalilur Rahman was carried to Madhyanagar camp and from there to Dharmapasha police station where on production of the dead body and other alamats appellant lodged the first information report. The defence further challenged the time and manner of the occurrence as given by the prosecution.

The prosecution has satisfactorily proved that the disputed land was in possession of the complainant party, P. Ws. 1, 2, 3, 9 and 11 are the persons that have deposed in favour of the com plainant on this point. Of particular importance is the evidence of P. W. 9 Shirin Khan, brother of Khan Mahmud, whose daughter Manjil had been married by Khalil (deceased) in consequence of which Khalil came to be in possession of the disputed land. P. W. Shirin Khan is an heir of Khan Mabmud and is a co‑sharer of his daughter Manjil, P. W. 9's wife P. W. 11 also spoke in favour of the complainant's possession of the disputed land. We find no reason to disbelieve these witnesses. It is indeed curious that none of the defence witnesses spoke about Kobad's possession in their examinations‑in‑chief although D. W. 2 alone in answer to a foolish question put by the prosecution counsel stated in his cross‑examination that Kobad possessed the disputed land. D. W. 2 stated thus:

"It is not a fact that Khalil had been in possession of the disputed land. Kobad possessed it (volunteers)."

For the reasons given below we find it difficult to place any reliance on these two defence witnesses.

The prosecution version of the occurrence rests upon the evidence of only 3 eye‑witnesses, namely, P. W. 2 Md. Abdul Hakim, P. W. 3 Matiur Rahman and P. W. 10 Md. Demu. It is true that all these prosecution witnesses are, in some way or other, connected with the deceased. But there is no doubt about their competency to speak about the occurrence. Both the prosecution witnesses 2 and 3 have been mentioned as accused persons in the first information report lodged by appellant Matiur Rahman and, therefore, their presence at the place of occurrence is an admitted fact. Likewise the presence of P. W. 10 Demu is not disputed and upon the evidence we are fully satisfied that all these three witnesses were present at the place of occurrence and they are the natural witnesses of the occurrence. There is no suggestion to any one of these witnesses that he bore any ill‑will against appellant Matiur Rahman. In fact, the occurrence so far the firing of the gun by appellant Matiur Rahman is concerned, it is an admitted fact. The defence has merely challenged the time and manner of the occurrence and, therefore, the question for consideration by us is limited to the question as to the circum stances under which the appellant fired his rifle at Khalilur Rahman and fatally injured him.

As regards the time of occurrence, the prosecution case consistently is that it took place at about 1 or 12 prohar in the morning on the 30th December 1960. The defence, however, through their witnesses D. W. 1 and D. W. 2, sought to prove that the occurrence in fact took place at about noon on this date. On a careful consideration of the evidence on this point, we accept the evidence of the prosecution witnesses. The defence witnesses who have been examined do not inspire much confidence. D. W. 1 Ketu Ram Sarkar is one of the companions of the police party. In course of his evidence he made incon sistent statements and at first said that he did not notice how many rifles the police party had. He then said that they had two rifles. It is also curious to note that although he was a member of the police party he did not notice as to who fired the rifle shot and that he merely saw Khalil attacking the police party with the dao and did not see anything else. D. W. 2 Jonab Ali Talukdar is a co‑villager of accused Kobad. His evidence also does not appear convincing. Although he could not see Khalil dealing a dao kope on the constable and the constable averting it with rifle he did not see whether any police officer had any rifle or not. He too did not see as to who fired the shot. He also appears to have seen this one fact only, namely, that Khalil was dealing a dao kope on the constable, and nothing else. It is, therefore, very difficult to rely on these two defence witnesses. Besides, if the occurrence had taken place at about noon or I p.m. on the 30th December 1960, it is difficult to understand as to why Matiur Rahman lodged a first information report on the 31st December 1960 at 1 p.m.

As regards the circumstances under which the appellant had fired at Khalilur Rahman, it appears to us that the defence version in this respect is inconsistent. The suggestions given to the prosecution witnesses are inconsistent with the case as sought to be made out in the statement of the appellant made under section 342 of the Code of Criminal Procedure, or in the case stated in the first information report lodged by him. There is no suggestion to any one of the prosecution witnesses that any one on the side of the complainant party wanted to snatch away the rifle of the appellant or that the Havildar gave any order to open fire. It is also curious to find that although according to the defence Kobad was being beaten when the police party had arrived at the place of occurrence, the definite evidence of P. W. 7, the Assistant Sub‑Inspector of Police, is that he found no injury on the person of Kobad.

Furthermore, it is difficult to believe that Khalilur Rahman attacked with a dao the police party consisting of three constables, two of whom were armed with rifles, and two Chowkidars. All the prosecution witnesses to whom the sugges tion was put that Khalil was armed with dao had been denied and the evidence of the two defence witnesses who spoke about Khalil giving the appellant a dao blow are not found acceptable by us. D. W. 1 Ketu Ram Sarkar stated that when the appellant was attacked with the dao he (the appellant) fell on bushes. There is, however, no evidence and no suggestion to any prosecution witness that the appellant in fact had received any injury on his person. The defence case is that on account of averting the dao blow of Khalilur Rahman the rifle had received a cut mark on it. The police officer who seized the rifle, however, did not mention any cut mark in the seizure list. No doubt in his cross‑examination he stated that he had seen the cut mark but on a question put to him by the Court he had to admit that he made a mistake in not noting it in his seizure list. We find it difficult in accepting this explanation furnished by the police officer.

The prosecution case is that the fatal shot was fired from a distance of 10 to 12 cubits. On the contrary, the defence case is that the appellant fired in self‑defence from a very close quarter. The evidence of P. W. 7 Md. Abdul Mannan, however, is that he did not find any scorching mark round the wounds and that no such note was made in his inquest report. The medical evidence does not throw any light on this point and does not help any party. Under these circumstances, it is difficult to believe that the appellant was, in fact, attacked with a dao by Khalil and that it was only a measure of self‑defence that the appellant had fired at Khalil. Granting that there was in fact an attack by Khalil with a dao, it is difficult to understand that the police party two of whom were armed with rifles could not defend the appellant in any manner other than shooting Khalilur Rahman. Compared with the dao the rifle was a longer instrument. Even if we can persuade ourselves to believe that the appellant was entitled to the right of private defence of person, we have no doubt whatsoever that he has exceeded this right.

There is a curious fact which should not go unnoticed. In the first information report lodged by the appellant, Khalil has been named as an accused although Khalil was dead as a result of appellant's own act.

The next question for consideration is what offence has been committed by the appellant. The evidence does not disclose that there was any animus on the part of the appellant. There appears no reason at all as to why the appellant should want to cause the death of Khalil. On a consideration of the facts and circumstances of the case, it appears to us that the police party including the appellant believed that they had a duty to process to the place of occurrence to prevent an imminent breach of the peace and to save the two persons, one of whom was a woman, from being put in danger of their lives. The evidence is that when Kobad had given a lathi blow to Khalilur Rahman the latter despite the blow chased Kobad. In such a situation. the appellant might have felt that Kobad was in imminent danger of at least grievous injury and, therefore, the former was called upon to protect Kobad. The evidence of at least one witness, namely, A . W. 10 Md. Demu is that at the time of ploughing the land Khalil had a "Haler fala" fitted with .‑ point iron. It is true that there is no evidence that at the time Khalil chased Kobad the former had the weapon in his hand. Nevertheless, the possibility that he might have had the fala in his hand at that time, cannot be eliminated. That being so, we think that the appellant is protected by Exception 3 to section 300 of the Pakistan Penal Code inasmuch as the appellant, a public servant, while acting for the advancement of public justice, exceeded the powers given to him by lave He appears to have fired the fatal shot in good faith believing it to be lawful and necessary for the due discharge of his duty as such public servant.

In the result, therefore, we alter the conviction of the appellant under section 302 of the Pakistan Penal Code to one under section 304, Part I of the Code. We, therefore, set aside the conviction and sentence under section 302 of the Pakistan Penal Code passed upon the appellant and convict him under section 304, Part I of the Code and sentence him there under to suffer rigorous imprisonment for a period of five years.

K. B. A.

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