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Criminal Revision No. 341 of 1963, decided on 22nd October 1964.
Ss. 100, 96, 300, 302 do 307
Self‑defence‑Right not available in respect of anticipated action--- Defensive action justified only when positive overt act of damage or harm set in motion.
Mehdi Khan v. The State P L D 1959 Lah. 1009 rel.
Sardari Lal v. The Emperor A I R 1937 Lah. 108; Nisar Husain and another v. Emperor A I R 1942 Oudh 147 and Karamat Husain v. Emperor A I R 1938 Lah. 269 held not applicable.
Ss. 439 & 417 ---Acquittal‑Government not filing appeal‑Revision under S.439 by aggrieved party‑High Court, in revision, competent to order retrial if satisfied that acquittal resulted in grave miscarriage of justice.
Abdur Rashid and others v. The State and others P L D 1962 S C 249 rel.
Sher Muhammad v. Muhammad Husain and others P L D 1963 Lah. 514; Muzaffar and another v. The State P L D 1961 Lah. 561 and Mrs. Ann Coleman v. The State and another P L D 1964 Kar. 81 ref.
S. Masoom Shah for Petitioner.
K. Mohtadullah for Respondents.
S. Ghazanfar Ali Shah, A. A: G. for the State.
Date of hearing: 16th October 1964.
Naziruddin and Pir Bakhsh were tried on two counts under section 307 read with section 34, P. P. C. Mst. Allah Rakhi, who was charged for an offence under section 201, P. P. C., was tried along with them at one trial by the learned Additional Sessions Judge, Peshawar, who acquitted all of them by his order dated the 16th of October 1963.
2. Feeling aggrieved by this order the private complainant moved this Court on the revisional side to have the order of acquittal set aside, and for directing a retrial. I t may be stated here that Fazal Husain moved the District Magistrate in the first instance for filing an appeal by the Provincial Government under section 417, Cr. P: Code, and the District Magistrate was of the view that the acquittal of the respondents had resulted in a grave miscarriage of justice, Accordingly he made a recommendation to the Provincial Government for filing an appeal, but nothing happened.
3. The occurrence which is the subject‑matter of this case took place on the 13th of February 1963, at village Nauteh Qadim, a suburb of Peshawar City, after the visit of the Chief Officer of the Municipal Committee, Peshawar, to the house of Malik Nasrullah in order to inspect a barsat (sic) constructed by him about which Naziruddin respondent had made an application to the Municipal Committee, for its demolition. During the inspection by the Chief Officer of the house of Abdul Latif, who has adopted Naziruddin as his son, the latter not only objected to the entry of the father of the complainant into their house, but, also pushed him, and this incident led to the present occurrence.
4. According to the prosecution, Khadim Hussain (P. W. 6) was present at the shop of one Akram. Fazal Husain (P. W. 4) was also sitting with Akram at his shop. At about 5 p.m. Akram left the shop in order to make purchases. Ten minutes later, Naziruddin and Pir Bakhsh respondents passed near the shop of Akram and entered the lane which leads to their house. After sometime Khadim Hussain also went towards his house which is in the same street. Khadim Husain noticed Naziruddin and Pir Bakhsh standing in front of their house. Pir Bakhsh asked Naziruddin not to allow Khadim Husain to pass that way. Upon this Naziruddin caught hold of Khadim Husain by the collar of his shirt. Khadim Husain raised an alarm which attracted Fazal Husain, Abdur Rashid and Abdul Hamid to the spot. Fazal Husain pushed Naziruddin who fell down but got up again and whipping out a pistol he fired a shot each at Fazal Husain and Abdul Hamid, with the result that they were injured and the third shot was fired in the air. Khadim Husain and Abdur Rashid caught hold of Naziruddin in order to disarm him. In the meantime Jamil also arrived at the spot. He actually snatched the pistol from Naziruddin. Mst. Meraja, wife of Abdul Latif, and Mst. Allah Rakhi respondent, who is the mother of Abdul Latif, also came up. Mst. Meraja squeezed the testicles of Jamil and the weapon dropped from his hand, which was picked up by Mst. Allah Rakhi, and both the ladies ran inside their house. Muhammad Yuhas, Ramzan, and Jan Muhammad were also attracted to the spot. Fazal Husain and Abdul Hamid were taken by Abdur Rashid to Police Post West Cantonment Peshawar, where at 17.45 hours N. C. Muhammad Saeed (P. W. 7) entered a report in the daily diary at the instance of Fazal Husain, and a case was registered at West Cantonment Police Station under section 307/34, P. P. C.
5. The Head Constable prepared the injury sheet Exh. P. D. of Fazal Husain. The injury sheet Exh. P. K. of Abdul Hamid was prepared by A. S. I. Shamsul Qamar (P. W. 13) who also recorded the statement of Pir Bakhsh respondent and then left for the spot. He found Jamil present at the spot and prepared his injury sheet Exh. P. L. Naziruddin respondent had an injury on his person. The Assistant Sub‑Inspector prepared his injury sheet Exh. P. Q. and sent the injured persons to the hospital for medical examination.
6. The investigating officer took into possession the blood‑stained garments of the victims of the crime vide memos. Exhs. P. F. and P. G. and the licence Exh. P. 1 of .32 bore pistol belonging to Naziruddin vide memo. Exh. P. E. Naziruddin and Pir Bakhsh were arrested on the 13th of February 1963. A complaint against Mst. Allah Rakhi was instituted by the police and she was also committed to the Court of Sessions by a separate order for taking the trial for an offence under section 201, P. P. Code.
7. At the trial, Fazal Husain (P. W. 4), Abdul Hamid (P. ..W. 5), Khadim Husain (P. W. 6), Muhammad Yunas (P. W. 9), Malik Rashid (P. W 11) and Jamil (P. W. 12) gave direct evidence. Mr. A. U. Salim (P. W. 1) deposed about his visit to the house of Malik Nasrullah in connection with the application made by Naziruddin respondent.
8. The medical evidence showed that the persons concerned in the occurrence had the following injuries:‑
Fazal Husain:
(1) A circular penetrating wound, " in diameter, on the left side of the gluteal region, 1" behind the anterior superior iliac spine.
(2) A circular penetrating wound, " in diameter, on the left side of the gluteal region, 2" behind and below the tip of the greater trochanter.
Both the injuries were simple and caused by a firearm.
Abdul Hamid:
A penetrating wound, " x ", on the front of the left thigh in its lower one‑third.
The injury was simple, and caused by a firearm.
Jamil:
Pain and tenderness of both the testicles.
Malik Abdur Rashid:
(1) A lacerated wound on the palmer side of the right ring finger, " X 1/8", x 1/8".
(2) A small wound adjacent to the above, 1/8" x 1/8" x 1/8".
(3) A lacerated wound in between the ring and middle finger of the left hand, " x 1/8" x 1/8".
The injuries were simple, and caused by a blunt weapon.
Naziruddin (accused):
A lacerated wound on the dorsum of the right band near the base of the thumb, " x 1/8" x 1/8".
The injury was simple and caused with a blunt weapon.
Mst. Allah Rakhi (accused):
(1) A lacerated wound, 1" x " X skin deep, on the dorsal aspect of the left hand.
(2) A lacerated wound, 1" x " x skin deep on the dorsal aspect of the left foot.
The injuries were simple and caused with a blunt weapon.
The rest of the evidence is all formal and need not be recapitulated.
9. The respondents pleaded not guilty to the charge and denied the prosecution allegations against them. Pir Bakhsh and Mst. Allah Rakhi asserted that they had been implicated in the case falsely on account of their relationship with Naziruddin respondent and Abdul Latif. Naziruddin, in his statement before the committing Magistrate, referred to the earlier incident. He said that he got a notice issued to the brother of Abdur Rashid P. W. who had constructed a barsat, and on the day of the occurrence under consideration, Naziruddin did not permit the father of Fazal Husain and Khadim Husain P. Ws. to enter his house and had also pushed him, and they implicated him in the case falsely with a view to retaliate on him. In his statement, at the trial, Naziruddin came forward with a counter‑version, which runs:‑
"On the day of occurrence at about 2 or 2.30 p.m. officers of the Muncipal Committee, Peshawar had come for inspection of the spot. There was a dispute over a barsat we wanted to construct our house. The officers of the Municipal Committee in order to inspect the spot went inside our house. The father of Fazal Husain complainant also wished to enter my house but I did, not allow him, whereupon he abused me and I pushed him outside and chained the door from inside. When the officers returned I went to my shop in Saddar Bazar and was returning at about 5 p.m. with cash amounting to Rs. 545. On the way Pir Bakhsh my co‑accused met me and we both were proceeding towards my house. While passing by the shop of Akram, Fazal Husain and five/six other persons were present who called out to catch hold of me and remove my trousers. Thereupon I ran for my life but near my house I was caught hold from the back of my shirt collar. I saw Khadim Husain, Fazal Husain, Hameed, Rashid, Jamil, and Akram shopkeeper. One of them took out the cash from the pocket of my shirt and they attempted to snatch away the pistol from the pocket of my jacket beneath my shirt. I took out the pistol and tried to run away but these persons grappled with me in order to snatch away the pistol, whereupon it went off but Rashid and others twisted my hand and took away the pistol. In the meantime many people arrived and they succeeded in rescuing me from them and pushed me inside my house. The surrounding houses belong to the complainant party and their relations. The pistol was licensed in my name. I am innocent."
10. Pir Bakhsh and Mst. Allah Rakhi respondents did not produce any evidence in their defence. Naziruddin examined Abdur Rauf Patwari, who produced a copy of the pedigree table (Exh. D. H.), which proved the relationship inter se of the eye‑witnesses. No evidence was called in support of the defence version put forth by Naziruddin.
11. The learned trial Judge considered the ocular evidence as interested. He scrutinized the statements of the eye‑witnesses with care and came to the conclusion that the discrepancies or the improvements effected by some of them on their previous statements were not material and did not discredit their evidence on that ground.
12. In view of the gunshot injuries found on the persons of Fazal Husain and Abdul Hamid the learned Additional Sessions Judge concluded, and I think rightly too, that the lead piece of a bullet recovered from the thigh of Abdul Hamid P. W. was of a different bullet from the one that caused injuries to Fazal Husain complainant. The defence plea that the weapon went off accidentally when the complainant party tried to snatch it from Naziruddin respondent was considered by the learned trial Judge as untrue. The trial Court, however, was of the opinion that in the circumstances of the case the right of private defence of person accrued to Nazir‑ud‑Din respondent who was surrounded by five strong, hostile persons, and had reason to apprehend danger to his life. It was also held that the right of private defence extended even to the extent of causing the death, and keeping in view the provisions of section 100 of the Pakistan Penal Code, the learned trial Judge came to the conclusion that Naziruddin and Pir Bakhsh did not commit any offence. Accordingly he proceeded to acquit both of them of the charge of attempted murder.
13. As regards Mst. Allah Rakhi, the trial Judge was of the view that the only evidence connecting her with the commission of the offence under section 201, P. P. C. was that of Jamil P. W., and since the other witnesses also tried to implicate her in their statements at the trial, notwithstanding the fact that they omitted to state to the police that she took away the pistol when the same dropped from the hand of Jamil, it was unsafe to rely on the evidence against her. She was, therefore, given the benefit of the doubt, and was acquitted of the charge under section 201, P. P. Code.
14. Taking up the case against Mst. Allah Rakhi, I find that the conclusion reached on the evidence by the learned trial Judge cannot be said to be erroneous. The fact that she was not named in the first information report made the case against her as extremely doubtful. The evidence produced by the prosecution to connect her with the commission of the crime is of a partisan nature. In the absence of recovery of weapon of offence from her, it is not possible to rely on the uncorroborated statement of a solitary witness to hold her guilty. I, therefore, see no ground to interfere in the order of acquittal in so far as this lady is concerned, and proceed to dismiss the revision petition against the order acquitting her.
15. I now take up the case against the other respondents. Two questions arise in this case: First, whether in the circumstances of the case, the right of self‑defence accrued to Naziruddin and Pir Bakhsh, and second whether it is a fit case in which this Court in exercise of its revisional jurisdiction should interfere with the order of acquittal, and direct a retrial.
16. Taking up the first question, it will be seen that every person has a right to defend himself and the right of private defence of person extends even to the extent of causing death, provided the offence which occasions the exercise of the right be of the type enumerated in section 100, P. P. Code. It would be convenient to reproduce section 100, P. P. C., which runs as under:‑
"When the right of private defence of the body extends to causing death.‑The right of private defence of the body extends, under the restriction mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:‑
First.‑Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly.‑Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly.‑An assault with the intention of committing rape;
Fourthly.‑An assault with the intention of gratifying unnatural lust ;
Fifthly.‑An assault with the intention of kidnapping or abducting;
Sixthly.‑An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
17. In the instant case, the evidence disclosed that none on the side of the complainant had any weapon from which it could reasonably be inferred that Naziruddin and Pir Bakhsh respondents apprehended danger to their lives when Khadim Hussain followed them into the lane in which their houses are situated. There is not an iota of evidence in support of the inference that Khadim Hussain and others surrounded Naziruddin in a threatening manner. To the contrary, the evidence is to the effect that Naziruddin and Pir Bakhsh respondents were present in front of their house, and when Khadim Husain (P. W. 6) tried to pass in front of their house, Pir Bakhsh respondent incited his co‑accused, Naziruddin, who caught hold of Khadim Husain by the collar. Khadim Husain raised an alarm, which attracted Fazal Husain, Abdul Hamid, and Abdur Rashid P. Ws. to the spot. Fazal Husain pushed Naziruddin, who felt down, but got up again. He took out the pistol with which he fired a shot each at Fazal Husain and Abdul Hamid, injuring both of them. The third shot was fired by him in the air. In the meantime Jamil came up and succeeded in disarming Naziruddin. There is no indication that Naziruddin was manhandled and the story that the other side tried to snatch the weapon and relieved Naziruddin of cash does not sound probable in the circumstances of the case, and is not supported by any evidence worth the name. Fazal Husain and others must at best be presumed to have followed the two respondents into the lane in order to remonstrate with Naziruddin, but there is not an iota of evidence to prove that they either threatened or behaved in a manner as to give an impression that they intended to harm Naziruddin or Pir Bakhsh. The complainant was completely unarmed, and in the scuffle he could have only used fists from which it could not be reasonably apprehended by Naziruddin respondent that he would be grievously hurt and the attack with the pistol on two innocent persons by Naziruddin was out of revenge, and as such, there was no right of self‑defence. See Mehdi Khan v. The State (P L D 1959 Lah. 1009). 1 am tempted to quote the following from this ruling:‑
"There can be no right of self‑defence against an anticipated action. It is only a reasonable apprehension of damage of mischief to the property or harm to person that gives rise to the right of self‑defence', subject always to the limitation contained in section 99 of the Penal Code. And there can f be no reasonable apprehension without a positive overt act by the opposite side. If the actual act of damage or mischief or harm has not been set in motion no occasion arises for any defensive action."
18. Learned counsel for the respondents cited Sardarf Lal v. The Emperor (A I R 1937 Lah. 108), Nisar Husain and another v. Emperor (A I R 1942 Oudh 147) and Karamat Husain v. Emperor (A I R 1938 Lah. 269) in support of the contention that due allowance should be made in favour of a person while considering the plea of self‑defence. I have gone through the reported cases and find that they are not applicable to the facts of the present case.
19. Passing on to the question whether this Court in exercise of its revisional jurisdiction has the power to set aside an order of acquittal and direct a re‑trial when the Provincial Government had refused to file an appeal under section 417, Cr. P. C., I am of the opinion that this Court has ample powel to correct an error by ordering a re‑trial, where it finds that therel has been a grave miscarriage of justice on wrong view of law.
20. Kazi Mohtadullah Khan, learned counsel for the respondents, relied on Sher Muhammad v. Muhammad Husain and others (P L D 1963 Lah. 514), Muzafar and another v. The State (P L D 1961 Lah. 561) and Mrs. Ann Coleman v. The State and another (P L D 1964 Kar. 81) in support of the argument that an order of acquittal can only be interfered with in revision where there is a defect or irregularity in the mode of trial. Learned counsel for the private complainant cited a ruling of the Supreme Court of Pakistan reported as Abdur Rashid and others v. The State and others (P L D 1962 S C 249) and contended that a re‑trial can be ordered if it is found that the order of acquittal had resulted in a grave miscarriage of justice, I think this Court has ample power to order re‑trial in an appropriate case.
21. For all these reasons, I set aside the order of acquittal, and direct that Naziruddin and Pir Bakhsh respondents be retried under section 307 read with section 34, P. P. C. (two counts) by a competent Court, according to law.
22. Nothing in this order should be treated by the trial Court as an expression of opinion binding on it, and it will reach its own conclusions on the evidence led before it.
K. B. A. Petition accepted.
Retrial ordered.
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