Dua, J. - (1.) Only two points were argued at the bar in this appeal by special leave because if we agree with the appellant's learned counsel on these points then the appeal must succeed and the appellant must be acquitted without going into the other points relating to the appellant's guilt intended to be raised on his behalf by his counsel. The relevant facts of the case necessary for appreciating two important points relating to the legality of the appellant's conviction may briefly be stated:
(2.) On the morning of October 7, 1967 a football match was being played at the Srinagar Stadium between the Kashmir University and the Punjab University teams. The Kashmir University team (hereinafter called the home team) was the first to secure one goal against the Punjab University team (hereinafter called the visiting team) The players of the home team were naturally cheered by the spectators when they scored the first goal. After a few minutes the visiting team equaslised the score and a little later secured another goal against the home team. This in turn brought cheers and applause for the visiting team from the spectators. It appears that some of the more enthusiastic spectators rushed to the football ground and are said to have made some provocative gestures towards the players of the home team. This apparently annoyed not only the players of the home team but also their sympathisers amongst the spectators and a clash between the rival sets of sympathisers of the two teams amongst the spectators followed. As usually happens on such occasions stones were thrown at each other by the two rival groups. These rival groups are stated to be those of Kashmir's on the one side and Punjabis on the other. The headquarters of the P. A. C. (Police Armed Constabulary) are also stated to the located in the stadium and some members of that force were present at the match. The young men of the P. A. C. came to the spot and with their dandas put the people to flight. Upto this stage there seems to be no controversy. According to the prosecution case as stated by P. W. Abdul Gani Sheikh, on April 24, 1959, when the people had left the stadium the appellant, to use the words of the witness in his examination-in-chief: "..................was seen descending the bund, in the direction of the stadium cycle-shed. The accused carried a gun in the hand. He had a helmet on the head. Getting down the bund the accused got near the cycle-shed. There he did something for a minute or a half. Forthwith the he opened the door of the cycle-shed and came out. The accused was facing the Militia wall. As he turned his face that side, he fired a shot. The shot hit the Militia wall. I was at a distance of nearly 50 yards from the accused. After firing the shot, the accused came on the main road which leads to the aerodrome. A zamindar was going on it. At the sight of the accused he stopped. The accused fired a shot at him. He fell along the drain adjoining the Militia wall. Thereafter the accused turned to the right side. There, on the other side of the road, in the direction of Hazuri Bagh Maidan , a young man in suit and boots was going there. At the sight of the accused he too stopped. There was exchange of some talk between him and the accused. I did not hear what he spoke. However, I saw that man facing the accused, with folded hands. Then the accused fired a shot at him. He fell down immediately on receiving the shot. Then the accused again turned towards that Zamindar, at whom he had fired the first shot. He fired another shot at him. Thereafter, the accused turned towards a boy, aged 15 or 16 years, who was going towards Mira Kadal. He fired a shot at him. The boy did not fall down, nay he took to his heels. He ran in the direction of the tonga-stand on the side of Mira Kadal. Thereafter he fired again at the youngman in suit and boots, at whom he had already fired a shot. Thereafter he fired another shot at a Zamindar. The accused fired more shots as well after that. In the meantime, three more men appeared there. They were the accused's men. Besides, a sardar of the K. A. P. also appeared at the spot. They got hold of the accused and took him inside . They were trying to snatch the rifle from the accused. Another person held the rifle and the accused was taken inside the stadium. I made a report of this occurrence at police station Sher Ghari, which may be at a distance of 150 yards from the place of occurrence. I made an oral report. I have heard the contents of the first information report. The same are correct. The police recorded what I stated. I affixed my signatures to it. It is correct. (Note:It is marked Ext. P/1)"
(3.) The learned Session Judge, Sringar, Qazi Miraj-udin, in whose court the appellant was tried for offence under Sections 302 and 307, I. P. C. convicted him for both the offences imposing the sentence of death under Section 302 and rigorous imprisonment for five years under Section 307, I. P. C. charges under Section 302 related to the death of Ghulam Mohd. Kuchey who died in the hospital on the day of the occurrence and also to the death of Aziz Teli who died two days later on October 9, 1967 at 5.50 p. m. The charge under Section 307, I. P .C related to the injuries caused to P. W. Abdul Ghani Sheikh.;