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Appeal No. 688 of 1952, decided on 17th February, 1953 from the order of Muhammad Aslam Khan, Additional Sessions Judge, Lahore at Qasur, dated the 15th September, 1952, convicting the appellant.

S. 304--‑Grave provocation--- Pulling accused's father's beard.

S. 59‑--Private person's attempt to arrest‑Offence committed in view of such person ultimately well under section 308, P. P. C. which was cognizable but bailable ‑Attempt to arrest, held, not justified ---Right of private defence against such arrest‑Penal Code (XLV of 1860), S. 101.

The right of private persons to effect arrest is dealt with by section 59 of the Code of Criminal Procedure wherein it is laid down that a private person may arrest anyone who in his view commits a non‑bailable and cognizable offence, or any proclaimed offender. The offence committed by the appellant by shooting at Ata Ullah fell under section 308 of the P. P. C. An offence under that section, though cognizable under Schedule II of the Code of Criminal Procedure, is bailable and therefore the attempt of Budhu Khan to arrest the appellant for shooting at Ata Ullah, Head Constable, was not justified by section 59 of the Code of Criminal Procedure.

The attempt of Budhu Khan to arrest the appellant amounted to an attempt at confining the appellant wrongfully and the appel lant would have a right of private defence against that act.

Section 101, P. P. C. gave the appellant the right of voluntarily causing to the assailant any harm other than death. The appellant fired at Budhu Khan who was not at any great distance from him and it is, therefore, obvious that he intentionally and voluntarily killed him, ad in doing so far exceeded the right of private defence which had accrued to him. In view of what has been said above, the appellant by firing at Budhu Khan was guilty of an offence of culpable homicide not amounting to murder, and the conviction of the appellant for killing Budhu Khan should be changed from one under section 302 to section 304, Part I of the P. P. C.

Mahmood Ali for Appellant.

S. K. Ahmad for the Advocate‑General, for Respondent.

Nawab Din, son of Imam Din, yell, resident of Haveli Panchan Wali, Tehsil Qasur, District Lahore, was sentenced to death under section 302, P. P. C. and to three years' rigorous imprisonment under section 307, P. P. C. by Mr. M. Aslam Khan, Additional Sessions Judge, Lahore. The condemned man has appealed and the trial Judge has referred the case to this Court for confirmation of the sentence of death. The appeal and the reference will be disposed of by this order.

The trial Judge has found that the appellant had fired at Ata Ullah, Head Constable, which caused him injuries. He has further found that the appellant had, by means of gun‑fire, caused the death of Budhu Khan Meo, a resident of Haveli Panchan Wali, and of Din Muhammad Meo, a child aged about one year. It is with respect to the injuries received by Ata Ullah, Head Constable, that the conviction was under section 307, P. P. C. and with respect to the death of Budha Khan and Din Muhammad, the conviction under section 342, P. P. C. has been recorded. Though the learned trial Judge has not made it clear in his judgment but he appears to have sentenced the appellant to death one each of the two counts of murder.

The prosecution case was that Ata Ullah, Head Constable, (P. W. 9), who was posted at Chah Door Singh to give training to razakars came to the village of the appellant, accompanied by Nawaz Khan (P. W. 1), to enquire why the appellant was not attending the parade in spite of the fact that he had himself enrolled as a razakar. They came to the village on the 24th of September, 1951 at about 5 p.m. and went to the village dera where Ali Sher lambardar (P. W. 10). Kanwal Khan (P. W. 11) and Buddhu Khan deceased were sitting, The Head Constable seating himself on a charpoy asked Ali Sher to go and enquire why the appellant was not attending the parade. At that time, Imam Din, father of the appellant, was in the dera, and Ali Sher called him. Ata Ullah asked Imam Din why his son Nawab Din was not attending the parade. The reply was that only those should parade who had been allotted land and were cultivating it, and neither he nor his son who did not fall in the category, would parade. The Head Constable told Imam Din that it was but a patriotic act to attend the parade, but Imam Din used strong language and the Head Constable also used strong language. Shortly after, the appellant armed with a gun was seen coming from his house and when at a distance of a few karams from the Head Constable fired at him hitting him on the right thigh. The Head Constable ran in order to save himself. Budhu Khan deceased tried to prevent the appellant from firing at the Head Constable again at which the appellant fired at Budhu Khan killing him on the spot. Nawaz Khan (P. W. 8), Ata Ullah (P. W. 9), Ali Sher (P. W. 10) and Kanwal Khan (P. W. 11) ran for their live but the appellant fired at them. They, however, escaped unhurt, but Din Muhammad, a child, about a year old, who was being carried about by Chhajju Khan, his uncle, aged about seven or eight years, was hit and breathed his last. When the Head Constable reached Chah Roor Singh Wala, he found that the razakars were still doing parade, and he told them to go and catch the appellant. Some of the razakars went to catch the appellant while some of them took the Head Constable to a house nearby. As, however, the Head Constable was in pain, the razakars put him on a charpoy and left for the city to get medical aid. They had not gone very far when they met Rehmat Ali, A. S. I. Police, to whom the Head Constable made a statement. This statement was sent to the police station and formed the first information report in the case. This report contains most of the details of the incident mentioned above.

At the trial, the prosecution produced Nawaz Khan (P. W. 8), Ata Ullah (P. W. 9) and Ali Sher (P. W. 10) as eye‑witnesses of the occurrence. Kanwal Khan (P. W. 11), who was also an eye‑witness, was not examined‑in‑chief by the prosecution with regard to the incident which led to Ata Ullah receiving injuries and Budhu Khan and Din Muhammad being killed, but he was offered for cross‑examination. The version of the incident given by Nawaz Khan (P. W. 8), Ata Ullah (P. W. 9) and Ali She, (P. W. 10) is unanimous and is consistent with the prosecution case, which has been detailed above, except for some minor variations.

When questioned in the Court of the committing Magistrate to explain the evidence against her, the appellant denied his guilt but gave no counter version. At the trial, however, he stated that on the day of the occurrence, he reached the dera of the village where he found the Head Constable grappling with his (appellant's) father who was being held by his beard. He had a gun with birra at that time and, as he could not bear to see his father being disgraced in that manner, he fired at the Head Constable but was not sure if he hit him. The Head Constable ran away and he himself sat in the dera. After about five or ten minutes he came out of the dera and at that time Chhajju Khan, carrying Din Muhammad deceased, and Budhu Khan deceased were just behind him. Just then there was firing from the side of the haveli of Ali Sher (P. W. 10). He at once laid himself on the ground, as being an ex‑military man he knew that that was the best method to save oneself from gunfire He saw that Bndhu Khan deceased and Din Muhammad had received injuries from gunshot. On looking round he found that Ata Ullah, Head Constable, stood outside the haveli of Ali Sher with a gun in his hand. No evidence was produced in defence.

The learned trial Judge found that the version of the appellant that he had found the Head Constable pulling the beard of his (appellant's) father, was correct, and that this act of the Head Constable amounted to a great provocation, under the influence of which the appellant had made a murderous assault on Ata Ullah, Head Constable. The finding of fact of the learned trial Judge that the appellant shot at Ata Ullah (P. W. 9) is justified by the evidence of P. W. 8, P. W. 9 and P. W. 10 and though these witnesses do not state that Ata Ullah (P. W. 9) pulled the beard of the father of the appellant, I would, as the learned trial Judge has done, accept the statement of the appellant in this respect. The learned trial Judge has, however, not considered if the acts of the Head Constable amounted to grave and sudden provocation,] or not. It appears to me that by pulling the beard of his father Ata Ullah offered the appellant grave provocation and that in the circumstances of the case the provocation was sudden. In this view of the matter, the act of the appellant in firing at Ate Ullah, Head Constable (P. W. 9), would amount to an attempt, A at culpable homicide not amounting to murder and be punishable under section 308 of the Pakistan Penal Code, because if Ata Ullah had died as a result of the injuries, the offence would have been culpable homicide not amounting to murder. I would,) therefore, alter the conviction of the appellant with regard to the assault on Ata Ullah, Head Constable, from section 307, P. P. C. to section 308, P. P. C. and reduce the sentence for that offence to two years' rigorous imprisonment.

It was contended by the learned counsel for the appellant that the plea of the appellant that Budhu Khan and Din Muhammad died as a result of shots fired by Ata Ullah, Head Constable, was correct and, therefore, the appellant could not have been convicted for murdering Budhu Khan and the child. There is absolutely no evidence, direct or circumstantial, to support this part of the plea of the appellant and it must be held, therefore, that the appellant had not succeeded in establishing his plea that the shots which injured Budhu Khan deceased and Din Muhammad deceased were fired by Ata Ullah, Head Constable. The case of the appellant was that he had been implicated because the meos who were settled in Haveli Panchan Wali wanted to oust him and his father from the house occupied by them, and for that reason had given false evidence against him. This plea cannot be accepted because there is absolutely no material to support it. The evidence given by Nawaz Khan (P. W. 8), Ata Ullah (P. W. 9) and Ali Sher (P. W. 10), with regard to the appellant being responsible for injuring Budhu Khan and Din Muhammad, is convincing and I would accept it as correct.

It appears, however, that the contention of the learned counsel for the appellant that, in any case, with regard to the death of Budhu Khan deceased, the appellant could not have been convicted under section 302 of the Pakistan Penal Code is not without force. The prosecution case was that Budhu Khan was shot at when he was trying to prevent the appellant from shooting a second time at Ata Ullah, Head Constable, and if that were so, the conviction of the appellant under section 302 of the Pakistan Penal Code would be justified. But this part of the prosecution case is to some extent weakened by the medical evidence according to which the margins of the wounds on the thigh of Ata Ullah were black. The blackening of the wounds would suggest that Ata Ullah was shot at from close quarters and if that was so, Ata Ullah could not have gone so far after the first shot as to make it necessary for the appellant to run after him to fire at him a second time. Moreover, Ata Ullah (P. W. 9) stated that after he had been fired at in the dera, Ali Sher (P. W. 10) and others had shouted that the appellant should be caught. I would, therefore, hold that when Budhu Khan was shot at he was not trying to prevent the appellant from shooting at Ata Ullah but was trying to arrest him.

By shooting at Ata Ullah, the appellant had, no doubt, committed an offence in the view of Budhu Khan and the question arises if Budhu Khan was entitled to arrest the appellant for that offence. The right of private persons to effect arrest is dealt with by section 59 of the Code of Criminal Procedure wherein it is laid down that a private person may arrest any one who in his view commits a non‑bailable and cognizable offence, or any proclaimed offender. The offence committed by the appellant by shooting at Ata Ullah fell, as held above, under section 308 of the Pakistan Penal Code. An offence under that section, though cognizable. under Schedule II of the Code of Criminal Procedure, is bailable and therefore the attempt of Budhu Khan to arrest the appellant for shooting at Atta Ullah, Head Constable, was not justified by section 59 of the Code of Criminal Procedure. If, however, Ata Ullah, in his capacity of a police officer had directed Budhu Khan to arrest the appellant, the attempt to arrest might possibly have been justified by section 46 read with section 54 of the Code of Criminal Procedure. But, as Ata Ullah (P. W. 9) stated in clear terms that Ali Sher and others and not he had shouted that the appellant be caught. I need not give a considered opinion on that question. The attempt of Budhu Khan to arrest the appellant, amounted to attempt at confining the appellant wrongfully and the appellant would have a right of private defence against that act. and the question to consider is if that right extended to causing the death of Budhu Khan. The relevant part of section 100 of the Pakistan Penal Code, which section deals with the voluntary causing of death of the assailant in the exercise of right of private defence, is the sixth clause according to which, if the assault is made 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 public authorities for his release, the right of private defence extends to the voluntary causing of death of the assailant. There is absolutely no evidence that the conditions laid down by the sixth clause of section 100 of the Pakistan Penal Code were satisfied, and it must, therefore, be held that the case was not governed by section 100 of the Pakistan Penal Code. However, section 101 of the Pakistan Penal Code, which deals with the extent of the right of private defence of the private body, if the right does not amount to the voluntary causing of death under section 100 of the Pakistan Penal Code, will have application. This section gave the appellant the right of voluntary causing to the assailant any harm other than death. The appellant fired at Budhu Khan who was not at any great distance from hint and it is, therefore, obvious that he intentionally and voluntarily killed him, and in doing so far exceeded the right of private defence which had accrued to him. In view of what has been said above, the appellant by firing at Budhu Khan was guilty of an offence of culpable homicide not amounting to murder, and II would, therefore, alter the conviction of the appellant for killing Budhu Khan from one under section 302 to section 304, Part I of the Pakistan Penal Code. It is only on technical grounds that the appellant is not guilty of murder for intentionally and voluntarily cadging the death of Budhu Khan and I would, therefore, order him to suffer transportation for life for the offence under section 304, Part I of the Pakistan Penal Code committed by him.

I will now deal with the case relating to the death of the child Din Muhammad which, as already held, is proved to have been caused by the appellant. Learned counsel for the appellant contended that as the appellant had no intention of causing the death of Din Muhammad, the offence with regard to his death would not be one of murder, but his contention is in my view entirely untenable. The prosecution evidence shows clearly that the death of the child Din Muhammad occurred when the appellant fired at Ali Sher and others who were trying to save themselves by running away, and this part of the prosecution case I see absolutely no reason to doubt. Cases like the present are governed by section 301 of the Pakistan Penal Code which enacts that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. The question to consider, therefore, is what offence the appellant would have been guilty of, if he had killed one of his intended victims. It is obvious that the appellant had neither any right nor any justification for firing at Ali Sher and others who were trying to escape by running away, and if any of his intended victims had died, the offence would clearly have amounted to murder, and, in view of section 301 of the Pakistan Penal Code, the appellant cannot escape conviction for murder by the circumstance that he happened to kill a person different than the one whom he intended to kill. I would, therefore, maintain the conviction of the appellant under section 302 of the Pakistan Penal Code with regard to the death of the child Din Muhammad. In my opinion, the sentence for the offence of murder committed by the appellant should be the extreme penalty prescribed by law, as he had absolutely no justification for using his gun on those persons who were running for their lives out of fear which had been brought about by using his gun in an unrestrained and reckless manner. I would, therefore, confirm the sentence of death passed on the appellant for the murder of the child Din Muhammad.

The result, therefore, is that while the conviction of the appellant for causing injuries to Ata Ullah, Head Constable, is altered from section 307 to section 308, P. P. C. and the sentence for that offence is reduced from three years to two years' rigorous imprisonment, and his conviction under section 302, P. P. C. for killing Budhu Khan is altered to section 304, Part I, P. P. C. and his sentence for that offence is reduced to transportation for life his conviction under section 302, P. P. C. for the murder of the child Din Muhammad is maintained as is the sentence of death imposed for that offence. The sentences other than that of death will be operative only if the sentence of death imposed on the appellant is not carried out.

---‑I agree.

A. H. Appeal dismissed.

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