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Criminal Appeal No. 528 of 1950, decided on 28th March, 1951 from the order of Sessions Judge, Attock at Campbellpur, dated 21st July, 1950, convicting the appellant.
(a) Criminal Procedure Code (V of 1898), S. 59 (1)‑Arrest by Private personas of one carrying unlicensed arms‑When justified--Arms Act (XI of 1878), Ss. 12 and 19.
According to Schedule II of the Code of Criminal an offence under section 19 of the Arms Act (XI of 1878) though cognizable is bailable, and, it follows, therefore, that the attempt by a private person to arrest one carrying an unlicensed arm is not justified by section 59 of the Code of Criminal Procedure.
Under section 12 of the Arms Act, even a person carrying licensed arms may be apprehended by a private person provided the person, who wants to effect the arrest. has just grounds for suspect ing that the arms are being carried with intent to use them or that they may be used for any unlawful purpose, and even with regard to unlicensed arms the section gives a private person no right to arrest, unless he entertains the suspicions mentioned above.
(b) Penal Code (XLV of 1860), Ss. 100 sixthly, 101‑Right of private defence against pursuers wanting to arrest one carrying unlicensed arms‑Whether available to person to be arrested -Extent.
Clause sixthly of section 100 of the Pakistan Penal Code lays down that an assault with tire intention of wrongfully confining a person, gives the person sought to be wrongfully confined the right to voluntarily cause the death of the assailant, if the circumstances make him reasonably apprehend that he will be unable to have recourse to the public authorities for his release. The appellant does not state that he apprehended that when arrested he will' be confined in such a manner that he will be unable to have recourse to the‑ public‑ authorities and it should have been obvious to him that his pursuers wanted to arrest him so that he and the unlicensed arms and ammunition that he was carrying be taken to the police. He should have known that, when taken to a police station, he would be released on bail, if the offence committed by him was bailable, and, therefore, even if he had a right of private defence it did not extend to the voluntary causing of death of any of the persons who attempted to arrest him.
The mere fact that a person is initially in the wrong cannot take away his right of private defence if that right accrues to him by the person against whom he wants to exercise the right exceeding the power given to him by law. In the present case as the deceased and his companions wanted to effect *an arrest which under the law they were not entitled to do, their act would amount to an offence of wrongful confinement and the right of private defence which accrued to the appellant could not be said to have been taken away because his captors were under a misconception about their powers to arrest him or had no criminal intention. Had the deceased and his companions been public servants, the mere apprehension of wrong ful confinement would not have given the appellant the right of private defence because section 99 of the Pakistan Penal Code makes it clear that if an act is done or is attempted to be done by a public servant acting in good faith under colour of his office, there is no right of private defence unless it is apprehended that death or grievous hurt would follow, in spite of the fact that the act which the public servant was doing was not strictly justifiable by law, but the mere fact that the deceased acid his companions had no ulterior motive in arresting the appellant and were doing an act which could lawfully be done by a police offer could not take away the right of private defence occruing to the appellant.
(c) Penal Code (XLV of 1860), S.103---Person carrying un-licensed arms and ammunition‑Right of private defence against people wanting to arrest hint and take unlicensed arms, etc., to police station.
The appellant had no license for the gun and the ammunition that he was carrying and could not, therefore, be said to be legally entitled to the property which the deceased and his companions intended to take in. their possession for the purpose of taking it to the police station. As the act, of the deceased and his companions could not amount to theft, no offence of robbery was committed or attempted, and, therefore, no right of private defence of property accrued to the appellant.
Abdus Sattar Farooqi, for Appellant.
S. A. Mahmud, Assistant to Advocate‑General, for Respondent.
.‑Malik Ahmad Khan, Sessions Judge, Attock at Campbellpure, who tried him under section 302 of the Pakistan Penal Code, having sentenced him to transportation for life under section 304, Part I, Pakistan Penal Code., Ata Muham mad son of Ghaus Muhammad, a goldsmith of village Nali, tahsil Khushab, District Shahpur, has presented an appeal questioning his conviction.
The prosecution case against the appellant was that he had on the 18th of February 1950 at about noon time killed Lashkar Khan by firing at him with a Data made, lever action., single barrel gun. It was alleged that, at the time of the occurrence, the appellant was going on the road near Ban Tahliwah at a distance of about a mile and a half from village Chinji when the deceased Lashkar Khan, Faiz Bakhsh, Allah Yar Khan, Haitam Khan and Muhammad Khan, who were on their way from village Chinji to Rakh Chinji, saw him and two others going towards Nali. At that time, the appellant was carrying a 12 bore, Data made, lever action, single barrel gun and a bandolier containing cartridges. Lashkar Khan deceased and his companions knew that the appellant, who is a nephew of Sultan, a goldsmith, of village Chinji, had no licence. Faiz Bakhsh called out to the appellant to stop, but he left the road and tried to escape, while his two companions who had also left the road went in a direction opposite to him. Lasbkar Khan, the deceased, and his four companions followed the appellant in order to snatch the unlicensed gun and cartridges, and produce him and the gun and the ammunition before the police. After he had gone some distance, the appellant fired at Faiz Bakhsh but missed him, but his pursuer did not give up the chase. A little after he had fired at Faiz Bakhsh, the appellant reloaded his gun and fired at Lashkar Khan, who fell down and died at the spot. The companions of Lashkar Khan secured the appellant along with the gun and the bandolier containing the cartridges. One Wahab Khan reached the spot on hearing the reports of the gun, and leaving the appellant in the custody of his three companions and Wahab Khan, Faiz Bakhsh went to Police Station Talagang, at a distance of 19 miles from the scene of the occurrence, where he made .the first information report about the incident. This report contains most of the details mentioned above.
In Court the prosecution produced Faiz Bakhsh (P. W. 6), Allah Yar Khan (P. W. 8), Haitam Khan (P. W. 9) and Muhammad Khan (P. W. 10) in support of their case. Of these, the last two were merely tendered for cross‑examination but the other two were examined in chief about all material points and cross‑examined at length. Faiz Bakhsh (P. W. 6) stated that on the day of the occurrence at about noon, he, Allah Yar Khan (P. W. 8), Haitam Khan (P. W. 9), Muhammad Khan (P. W. 10) and Lashkar Khan, deceased, were on their way from village Chinji to Rakh Chinji, when, near Ban Tahliwali, they saw the appellant and two others. The appellant was carrying a gun at that time. . The witness and his companions knew that the appellant had no licence, to keep a gun and called out to him to stop, but the appellant left the road and tried to escape. The appellant aimed from a distance of about sixty yards at the witness, who, however, escaped injury. Soon after that the appellant started running and had gone a distance of about a hundred Kadams from the place from which he had fired at the witness when Lashkar Khan, deceased, who was leading the pursuit party, reached very near the appellant. The deceased was about to apprehend the appellant, when the latter reloaded his gun and fired at Lashkar Khan, who fell down dead on the spot. The statement of Faiz Bakhsh (P. W. 6) was. corroborated in all material particulars by Allah Yar Khan (P. W. 8).
When questioned to, explain the evidence against him, the appellant stated that he had not fired at Faiz Bakhsh, but in the air in order to scare away his pursuers. With respect to the injury caused to Lashkar Khan, he stated that the deceased and his four companions pursued him till they captured him, and, while a struggle was going on between him and his captors, the gun went ‑off by accident. He added that the deceased and his four companions wanted to capture him with a view to obtaining a divorce for his wife, who is a sister of one Gheba Khan, a resident of village Chinji: No evidence was produced in defence.
In view of the fact that the appellant admitted that Lashkar Khan, deceased, died as a result of a shot fired from the gun carried by him, it is not necessary to scrutinize very minutely the evidence of the witnesses, produced by the prosecution. The evidence of P, W. 6 and P. W. 8, however, is convincing, and even part from the statement of the appellant himself, the fact that Lashkar Khan deceased died as a result of a shot fired from the gun of the appellant stands established beyond all reasonable doubt. It was, however, contended by the learned counsel for the appellant that the gun had gone off accidentally, as alleged by the appellant, and, therefore, the appellant had not been guilty of any offence. The first question, therefore, that requires consideration is whether or not it was established that Lashkar Khan deceased met with his death because of an accident. As the appellant pleaded one of the exceptions, the burden of bringing his case within that exception lay on him. He has, as mentioned already, not produced any evidence its support of his, plea and that plea does not receive any support either from the depositions of the prosecution witnesses or from the circumstances of the case. Moreover, it is admitted by the appellant that he reloaded the gun after he had fired at Faiz Bakhsh and it appears to me that he had done so in order to fire at his pursuers. Taking all the facts into consideration, I have no hesitation in holding that the plea of the appellant that the gun went off by accident during the scuffle between him, on one side, and the deceased and his four companions on the other, was not substantiated.
It was next urged by the learned counsel for the appellant that, as the deceased and his companions were not allowed by any provision of law to arrest the appellant, he was justified in using the gun to escape from the threatened wrongful confinement, and had, therefore, committed no offence.
The learned counsel for the Crown referred to section 59 of the Code of Criminal Procedure and section 12 of the Arms Act, and urged that the arrest of the appellant by the deceased and his companions was perfectly justified and no question of the right of private defence accruing to the appellant arose. Section 59 of the Code of Criminal Procedure deals with powers of private persons to make arrests and its relevant part is contained in subsection (1) which reads as follows :‑‑
"Any private person may arrest any person who in his view commits a non‑bailable and cognizable offence, or any proclaimed offender, and, without necessary delay, shall make over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest Police Station.
In order to decide whether or not the arrest of the appellant by the deceased and his four companions was justified by law, it has to be found whether or not the appellant had committed a cognizable and non‑bailable offence in the presence of the persons, who wanted to arrest him. The prosecution case is that the appel lant was carrying the gun and the bandolier openly, and, therefore, the only offence, which he was committing, was one covered by section 19 of the Arms Act. According to Schedule II of the Code of Criminal Procedure, an offence under section 19 of the Arms Act (XI of 1878) though cognizable shall be bailable, and, it 'follows, therefore, that the attempt of the deceased and his com panions to arrest the appellant was not justified by section ‑59 of the Code of Criminal Procedure. No doubt the offence being cognizable the appellant could have been arrested by a police officer without a warrant, but section 59 of the Code of Criminal Procedure gave no private person the right to arrest him.
Section 12 of the Arms Act, on which also the learned, counsel for the Crown relied, reads as follows:‑---
"When any person is found carrying or conveying any arms, ammunition or military stores, whether covered by a licence or not, in such manner or under such circumstances as to afford just grounds of suspicion that the same are being carried by him with intent to use them, or that the same may be used, for any unlawful purpose, any person may without warrant apprehend him and take such arms, ammunition or military stores from him.
Any person so apprehended, and any arms, ammunition or military stores so taken by a person not being a Magistrate or Police Officer, shall be delivered over as soon as possible to a Police Officer.
All persons apprehended by, or delivered to, a police officer, and all arms and ammunition seized by or delivered to any such officer under this section shall be taken without unnecessary delay before a Magistrate".
The learned counsel for the Crown contended that, as the appellant was in possession of an unlicensed gun and ammunition he could be reasonably suspected to be carrying the articles for putting them to use for an ‑unlawful purpose, but as none of the witnesses for the prosecution states that the attempt to arrest the appellant was made because he was suspected of carrying the gun for using it for an unlawful purpose, this contention of the learned counsel for the Crown must be repealed. Under section 12 of the Arms Act, even a person carrying licensed arms may be appre hended by a private person provided the person, who wants to effect the arrest, has just grounds for suspecting that the arms are being carried with intent to use them or that they may be used for any unlawful purpose, and even with regard to unlicensed arms the section gives a private person no right to arrest, unless he entertains the suspicions mentioned above. I must, therefore, hold that the attempt of the deceased and his companions to arrest the appellant was not justified by any provision of law, and the question that arises, is whether or not the appellant was justified in voluntarily causing the death of Lashkar Khan.
The attempt of Lashkar Khan and his companions to appre hend the appellant would ‑be an assault to wrongfully confine him and with respect to such an assault the right of private defence is governed by clause sixthly of section 100 of the Pakistan Penal Code. The clause above‑mentioned lays down that an assault with the intention of wrongfully confining a person, gives the person sought to be wrongfully confined the right to voluntarily cause the death of the assailant, if the circumstances make him reasonably apprehended that he will be unable to have recourse to the public authorities for his release. The appellant does not state that he apprehend that when arrested he will be confined in such a manner that he will be unable to nave recourse to the public authorities and it should have been obvious to him that his pursuers wanted to arrest him so that he and the unlicensed arms and ammunition that he was carrying be taken to the, police. He should have known that, when taken to a police station, he would be released on bail, if the offence committed by him was bailable, and; therefore, even if he had a right of private defence it did not extend to the voluntary causing of death of any of the persons who attempted to arrest him.
It was next urged by the learned counsel for the appellant that the appellant apprehended that the deceased and his four companions wanted to snatch the gun from him and as they were trying to take possession of the gun by force their act amounted to an offence of dacoity, and the appellant had the right of private defence. of property which extended to the voluntarily causing of death under section 103 of the Pakistan Penal Code. If it were established that the act of the deceased and his companions in trying to snatch the gun from the appellant amounted to an offence of robbery, the appellant had the right of private defence which could possibly extend to the voluntary causing of death and it is therefore, necessary to examine whether or not the deceased and his companions were committing an offence of robbery. The learned counsel for the Crown admitted that the only provision of law which authorises a private person to take arms, ammu nition or military stores from another is section 12 of the Arms Act. I have already dealt with that section and need only add that it did not give the deceased and his companions the right to snatch the arm and ammunition from the appellant, because they had no just ground for suspecting that he was carrying the gun and the ammunition for using them for an unlawful purpose. That, however, does not conclude the matter. Before the act of the deceased and his companions could be held to amount to dacoity i.e., robbery by five persons, it should be clear that it was either theft or extortion. The act was obviously not extortion and it remains to be considered whether it amounted to theft. Theft is defined in section 378 of the Pakistan Penal Code as moving of any movable property with the intention of taking it dishonestly out of the possession of another. The act of the deceased and his companions could not be theft, unless it were established that they intended to take the gun and the ammunition dishonestly. Section 24 of the Pakistan Penal Code says that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". Wrongful gain and wrong ful loss are defined in section 23 of the Pakistan Penal Code, the relevant parts of which read as follows :‑---
"Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
Wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled".
It is clear from the evidence on the record and the circumstances that the deceased and his companions had no intention to cause any wrongful gain to themselves, because their intention was to take the articles to the police station with a view that the police should take the requisite action against the appellant. The learned counsel for the appellant urged that even if the deceased and his companions did not intend to cause any wrongful gain to themselves, their act was bound to result in wrongful loss to the appellant, and they must be held to be acting dishonestly within sections 24 and 378 of the Pakistan Penal Code. I am, however, not prepared to accept the contention that any wrongful loss could result to the appellant. He had no license for the gun and the ammunition that he was carrying and could not, therefore, be said to be legally entitled to the property which the deceased and his companions intended to take in their possession for the purpose of taking it to the police station. As the act of the deceased and his companions could not amount to theft, no offence of robbery was committed or attempted, and, therefore, no right of private defence of property accrued to the appellant.
The next contention of the learned counsel for the appellant was that his client had a right of private defence of his person which extended to the voluntary causing of death because he apprehended that, unless he used his gun, he would be either killed or be given grievous injuries. He pointed out that Dr. S. M. Faridi, Assistant Surgeon, Talagang, who examined the appellant on the 19th February, 1950, found a number of injuries on his person. The statement of Dr. S. M. Faridi is that when he examined him the appellant had on his person the injuries detailed below :‑ .
1. Contused wound " X 1/6" skin deep left side head 3" vertically above the left ear oblique in direction.
2. A horizontal bruise 5 " X 2" left side abdomen on the back.
3. Horizontal bruise 2 "X 1" lower part left side chest on the back.
4. Oblique bruise 3"X 1" over the left shoulder blade.
5. Oblique bruise 4" X 1 " outer side left thigh in the upper part.
6. Abrasion " X " front of left knee.
7. Abrasion 1 "X 1" front of right knee.
8. Oblique bruise 3 " X 1" left side neck on the back.
9. Horizontal bruise 3" X 1 " back and outer part left arm in the middle.
10. Horizontal bruise 1 "X " back of left arm 2 " above the elbow.
11. Bruise 2 " X " right side face " below the eye.
12. Swelling 3 " X 3 " back of left hand.
13. Abrasion " X "front of left thumb.
All the injuries were simple and caused with blunt weapon.
Faiz Bakhsh (P. W. 6), when cross‑examined, stated that he and his companions were empty handed and neither he him self, nor his companions had inflicted any injury on the appellant. Allah Yar Khan ( P. W. 8 ), however,‑ stated that when the appellant was apprehended he struggled and resisted and got some scratches at the bands of persons who wanted to apprehend him. The statement of Allah Yar Khan ( P. W. 8) about this matter appears to accord more with the truth, but I am inclined to the view that the deceased and his companions were not all of them empty‑handed because some of the injuries mentioned by the doctor could have resulted only from blows with a blunt weapon, There is, however, no reason to doubt the statement of Allah Yar Khan that it was only after the appellant had been arrested that the captors gave him some blows, and, therefore, the mere fact that the appellant had some injuries on his person does not prove that his captors intended to' capture him to cause his death or to cause grievous injuries to him, or that he reasonably apprehended that he would either be murdered or be given grievous injuries. The appellant stated that the deceased and his companions bad giver. him some blows in order to snatch the gun and the cartridges, but as this statement is not supported by any evidence, or by the prosecution evidence, or circumstances appearing in the evidence on the record, I cannot accept the bare statement of the appellant.
The question that now arises is what offence the appellant has been guilty of. The learned counsel for the Crown urged that as the appellant himself was initially in the wrong, being in possession of unlicensed arms and ammunition and had been guilty of an offence under section 19 of the Arms Act, he had no right of private defence and could not, therefore, resist the illegal arrest. He added that under no circumstances did the law give a wrongdoer the right to exercise his right of private defence, but could cite no authority in support of his contention. I am of the view that the mere fact that a person is initially in the wrong cannot take away his right of private defence if that right accrues to him by the person against whom he wants to exercise the right exceeding the power given to him by law. In the present case as the deceased and his companions wanted to effect an arrest which under the law they were not entitled to do, their act would amount to an offence of wrongful confinement and the right of private defence which accrued to the appellant could not be said to have been taker away because his captors were under a misconception about their powers to arrest him or had no criminal intention. Had the deceased and his companions been public servants, the mere apprehension of wrongful confinement would not have given the appellant the right of private defence because section 99 of the Pakistan Penal Code makes it clear that if an act is done or is attempted to be done by a public servant acting in good faith under colour of his offence, there is no right of private defence unless it is apprehended that death of grievous hurt would follow, in spite of the fact that the act which the public servant was doing was not strictly justifiable by law, but the mere fact that the deceased and his companions had no ulterior motive in arresting the appellant and were doing an act which could lawfully be done by a police officer could not take away the right of private defence accruing to the appellant. I hold, therefore, that the appellant had a right of private defence against the illegal arrest which the deceased and his companions wanted to effect.‑
I have already remarked that section 100 of the Pakistan Penal Code makes the right of private defence of person extend to the voluntary causing of death in case of an assault for the purpose of wrongful confinement only if it is reasonably apprehend ed that the person sought to be confined will not have an opportunity to have recourse to public authorities for his release but under section 101 Pakistan Penal Code the appellant had the right 'in the exercise of the right of private defence to voluntarily cause any harm other‑ than death to the assailants subject to the restrictions that more harm than was necessary for the purpose of defence was not caused. The evidence is that the appellant fired at the deceased from a distance of a few paces, and there can, therefore, be no doubt that he intended to cause death. Under the circumstances of the case the law did not allow the voluntary causing of death but as the appellant was acting in exercise of his right of private defence, but exceeded the power given to him by law, he would be guilty of an offence under section, 304, Part I and his conviction under that section is maintained.
The only question left is that of sentence. The learned Counsel fox the appellant urged that the maximum sentence under section 304 Part I of the Pakistan Penal Code imposed by the trial Court was not called for, and only a light sentence would have sufficed. I agree with the learned counsel for the appellant that the maximum sentence was not called for but cannot agree that a light sentence would have sufficed. It appears that in order to shake off the persons, who wanted to arrest him, the appellant in the first instance fired in the air with a view to scare them away, but they persisted in the pursuit and may not have been entirely without blame, but the act of the appellant in firing at an unarmed man from a very short distance was such as cannot be deemed to be, anything but reprehensible. Considering all the circumstances of the case, I am of the view, that a sentence of five years' rigorous imprisonment would meet the ends of justice, and I would, therefore, partly accepting the appeal reduce the sentence from transportation for life to five years' rigorous imprisonment.
I agree.
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