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Criminal Appeal No. 189 of 1966, decided on 15th March 1968.

, S. 59 read with Penal Code (XLV of 1860), S. 97‑Arrest by private person‑Private defence, right of‑Accused not shown to have committed any non‑bailable and cognizable offence within view of prosecution witnesses‑Prosecution witnesses apprehending accused on mere suspicion of theft‑Accused, held, within his right to avoid arrest arid causing injuries in exercise of private defence.

H. M. Junejo for Appellant.

Abdul Karim Lakhan for the State.

Dater of hearing : 15th March 1968.

The appellant, Razak, has been convicted under section 307, P. P. C. and sentenced to suffer rigorous imprisonment for five years and pay fine of Rs. 100 or in default rigorous imprisonment for three months more. He has filed this appeal.

2. The facts of the prosecution case briefly are that on the 22nd of August 1965, Rasul Bux informed Manthar that a person with a muffled face had got into sugarcane cultivation and that he appeared to be a thief. Manthar and others therefore, went into the sugarcane cultivation from different directions and ultimately saw a person sitting there with muffled face. On seeing Manthar and others, the culprit who turned out to be the appellant ran and was followed with a view to be arrested. The appellant then took out the pistol and fired at them in order to save himself. Shamsuddin and Bagh were hit. The appellant, however, was caught and kept on the spot. Manthar then went to the Police station at Padidan which was at a distance of six miles from the scene of offence are lodged first information report Exh. 4‑A, at 9 p. m. the appellant having been caught at about one hour before sun‑set time.

3. The Police during the course of investigation visited the scene of offence and prepared its mashirnama. They also examined the witnesses. The appellant was produced before, the Police and was arrested under mashirnama Exh. 9‑E. The pistol and cartridges recovered from the appellant were also produced before the Police which were secured under mashirnaina Exh. 9‑13. The mashir for both these mashirnamas was Chanesar P. W. 6. The appellant had injuries on his person. He was therefore sent to the Medical Officer for examination and treatment. After the usual investigation was concluded, the appellant was challaned.

4. The appellant, when questioned, denied the allegations made against him and stated that while he was passing by the cultivation he was caught and belaboured. He has examined no witness in defence.

5. The learned counsel for the appellant has stated at the Bar that he accepts the entire prosecution evidence and also the evidence of the witnesses. His plea in the case is that the witnesses had no right to arrest the appellant under section 59, Cr. P. C. as admittedly they had not seen him committing within their view a non‑bailable and cognizable offence and as such the appellant was within his right to avoid his arrest and fire at Shamsuddin and Bagh and the cause injuries to them in the exercise of the right of private defence. He has relied upon the case of State v. Muhammad Akbar (P L D 1966 S C 432) decided by the Supreme Court of Pakistan. I accept his plea and I am of the view that the witnesses had no right to arrest the appellant. Right of private defence had accrued to the appellant on account of which he was justified in firing at Shamsuddin and Bagh with a view to prevent them from arresting him. The appellant at the most can be said to have committed an offence under section 13(d) of the Arms Ordinance for which there was no charge against him in this case. I am told he was separately tried for this offence. Under these circumstances, the evidence against the appellant does not establish the offence under section 307, P. P. C. I consequently accept his appeal and acquit him. His bail bonds stand cancelled and the sureties discharged.

Appeal accepted.

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