Per Mohd. Yaqoob Mir, J.

1. By medium of this appeal, judgment dated 29.12.2000 rendered by Writ Court is assailed. Against the dismissal order, as passed against the appellant by General Court martial, writ petition filed by appellant, has been dismissed vide the impugned judgment.

2. Precise factual matrix shall be advantageous to be noticed. The appellant had received a postcard on 7th April 1990, containing information that his father-in-law had died, he requested the officiating CHM for any type of twenty days’ leave. In connection thereof he met Subedar Jeet Ram at his residence and was promised that his leave application would be put before the Commandant and was accordingly told to appear before the Commanding Officer on 9th April 1990. However, according to the appellant when on 8th April 1990, he was performing night guard Santiri duty at Company’s main gate in Badami Bagh Cantonment, during patrolling he found someone moving in the area, who, on being called upon did not stop, which prompted the appellant to use his fire arm. The person as was fired upon was found to be Subedar Jeet Ram. The appellant as a result thereof was arrested.

3. According to the appellant, the person fired upon was moving in suspicious circumstances, which prompted him to open fire. The authorities concerned fell suspicious about opening of the fire as result thereof enquiry was instituted. Court of Enquiry consisted of IC-1829W Lt. Col. E.M. DANIELS, (PO) with IC-29620Y Major S. C. Bhola Member and SS 32648K Capt. A. K. Kohli. On conclusion of the enquiry opinion was recorded as under:

"1. The Court is of the opinion that number 14235632 L/NK Satbir of 31 Sub Area Sig Coy is found guilty for the firing of JC-125468N Sub(OSL) Jeet Ram of the same Unit on 08 Apr 1990. He is to be solely blamed for the act.

2. The injury sustained by JC-125468N Sub (Jeet Ram) is attributable to military service in the full.

Presiding officer:

Sd/-

(IC-18289W Lt Col EM Daniels)

Members

1.Sd/-

(IC-29620Y Major SC Bhola)

2.Sd/-

(SS-32648K Capt AK Kohli)"

4. Based on the said opinion charge was to the same effect. The Commandant held the proceedings under Rule 22 of the Army Rules. In the process he recorded the statements of four witnesses namely Harinder, M. K. Choudhary, Lal Ram and Rajinder Kumar. It is recorded therein that the accused declined to cross-examine the said witnesses. On conclusion Commandant has given following order:

"Evidence to be reduced in writing."

5. Finally charge sheet has been framed by Commandant against the accused to the following effect

CHARGE SHEET

The accused no. 14235632K Sigmn (l/NK) Satbir, 31 Sub Area Sig Coy, is charged with:-

COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, ATTEMTP TO MURDER, CONTRARY TO SECTION 307 OF THE RANBIR PENAL CODE,

In that he,

At field, on 08 April 90, fired a shot from rifle 7.62 mm SLR Registered Number BB-7753, Butt No 17, at JC-125468N Sub Jeet Ram of the same unit with intent to murder him and thereby wounded the said JCO in the right shoulder.

	Sd/-
Place:Field	(Bushal Lal Sapru)

	Lieutenant Colonel(Time Scale)
Date:22 Oct 90	Officer Commanding 31 Sub Are Sig Coy

Based on said charge sheet, Lt. General Officer Commanding recorded as under:

"To be tried by a General Court Martial."

6. Finally accused was tried and was found guilty; resultantly he has been sentenced to suffer rigorous imprisonment for seven years and was also dismissed from service. Post conformation petition under Section 164(1) of the Army Act 1950 stands dismissed. The sentence was confirmed by the confirming authority on 15 January 1991. Appellant filed the petition OWP no. 392/1992, which has been dismissed.

7. Heard learned counsel for the parties.

8. Learned counsel for the respondents produced the record of Court Martial as well as record of Court of enquiry.

9. Learned counsel for the appellant at the very outset stated that he will restrict his challenge viz-a-viz non-adherence to the Rules 22, 23 and 24 of the Army Rules, 1954 (herein after referred t

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