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Criminal Appeal No. 394 of 1970, decided on 25th January 1971.

Ss. 100 & 103‑Private defence; right of‑Deceased after commission of theft escaping with stolen property and when given chase by accused firing pistol shot in air and issuing threats‑Accused returning a single gunshot resulting in death of deceased‑Accused, held, acted within limits of right of private defence to recover his property‑Deceased being armed with a pistol, use of fire‑arm by accused, held, permissible and right of private defence not exceeded.

The deceased had committed the theft and was armed with a pistol. He was actually escaping with the stolen property and had fired a pistol shot in the air and further had issued threats to the appellant who was trying to approach him in order to capture him and rescue the property before the appellant had fired the gunshot. The evidence shows that ‑only one gunshot was fired and if it resulted in the death of the deceased the appellant acted within the limits of the right of private defence which was available to him under either of the two sections. There was a clear apprehension of a serious result to follow in case the appellant had not acted promptly. The deceased was armed with a pistol and he would not have spared the appellant if he had persisted in chasing the deceased in order to either capture him or to recover the property. It is true that the shot by the appellant was fired at the deceased when he was trying to escape but was still carrying on the stolen property and the, appellant had every right to recover the property from the thief and in doing so be could also cause an injury. In view of the weapon with which the deceased was armed the only weapon which the appellant could use was a weapon of similar nature. So the use of the gun by the appellant was permissible and he acted within the right of private defence available in law and this right was not exceeded.

Mohammad Hayat Junejo for Appellant.

Kazi Akhtar Ahmad, A. G. for the State.

Date of hearing : 25th January 1971.

The appellant was convicted by the learned Sessions Judge, Khairpur, for an offence under section 304, Part I, P. P. C., and sentenced to undergo R. L' for five years and to pay a fine of Rs. 500 or in default to undergo R. I. for one year.

2. Deceased Arz Muhammad was the husband of Mst. Rahima. On 16th July 1968, at about 2 a.m., Arz Muhammad was killed by a gunshot fired by the appellant. The incident had taken place in the house of the appellant who had lodged the report that the deceased committed house‑breaking find theft and was armed with a pistol and when the deceased was chased while he was trying to scale the wall with the stolen property he fired a pistol shot in the air and further issued threats to the appellant but in the meantime the appellant fired a shot which hit the deceased who fell down and died, The police did not challan the case as it seems it was treated to be a case of self‑defence. However, after about 22 days Mst. Rahiman wife of the deceased lodged a report that her husband was killed by the appellant and two others after he had been taken away from his own house on the pretext that he was wanted by Rais Sher Ali. According to her, this was a case of murder. After the usual investigation, the appellant was challaned while the other two who were implicated are dead. The appellant proclaimed his innocence and related the same story which he had earlier disclosed in the first report lodged by him.

3. The learned Sessions Judge rejected the prosecution story that the deceased was taken away by the appellant and others and thereafter killed and accepted the story told by the appellant. However, he came to the conclusion that the appellant was guilty of an offence under section 304, Part I, P. P. C: The reasons given by the learned Sessions Judge for arriving at this conclusion are contained in the following paragraph of the judgment.

"It is clear from the attitude of the accused that he never intended to take the life of the deceased in this manner. A theft was committed in his house and he could not bear the sight of his property being stolen in his presence. He also could not race the thief in an encounter without risk of his life or of grievous hurt. Therefore without the understanding the gravity of his act, the accused acted in a manner which did not warrant such an act. It is clear from the evidence that the accused did not want to kill the man outright He might have thought of injuring the deceased only to get back his property but the risk was involved there. Therefore in my opinion the accused has committed an offence under section 304 (1), P. P. C. of culpable homicide not amounting to murder as the act by which the death was caused was done with the intention of causing such bodily injury as was likely to cause death. The very fact of firing at the deceased fore‑installed the danger of causing death or at least such an injury which was likely to cause death:"

4. I must say that the learned Sessions Judge misdirected himself and did not consider the question of the right of private defence. Simply because the death was caused it does not necessarily mean that some offence was committed. In the light of the evidence and the circumstances which were accepted by the learned Sessions Judge, he ought to have considered whether the appellant had any right of private defence of person or property. This aspect of the case was completely ignored by the learned Sessions Judge. Sections 100 and 103, P. P. C. extend the right of private defence to the person and property in certain circumstances enumerated therein. The circumstances in the present case are fully covered by these two sections and the act of the appellant was fully protected. Sec tion 100.1ays down that the right of private defence of the body is extended to the causing of death if an assault may reasonably cause an apprehension that death will otherwise be the consequence of such' assault. Similarly section 103, P. P. C. extended the right of private defence of property to the voluntarily causing of death if the offence, the committing of which occasions the exercise of the right, be an offence of robbery or house‑breaking by night. Admittedly; in the present case as was found by the learned Sessions Judge, the deceased had committed the theft and was armed with a pistol. He was actually escaping with the stolen pro perty and had fired a pistol shot in the air and further had issued threats to the appellant who was trying to approach him in order to capture him and rescue the property before the appellant had fired the gunshot. The evidence shows that only .one gunshot was fired and if it resulted in the death of the deceased the appellant acted within the limits of the right of private defence which was available to him under either of the two sections. There was a clear apprehension of a serious result to follow in case the, appellant had not acted promptly. The deceased was armed with a pistol and he would not have spared the appellant if he had persisted in chasing the deceased in order to either capture him or to recover the property. It is true that the shot by the appellant was fired at the deceased where he was trying to escape but was still carrying on the stolen property and the appellant had every right to recover the property from the thief and in doing so he could also cause an injury. In view of the weapon with which the deceased was armed the only weapon which the appellant could use was a weapon of a similar nature. So the use of the gun by the appellant was permissible and he acted within the right of private defence available in law and this right was not exceeded. In case the learned Sessions Judge had applied his mind to this of the case, I am sure, he would not have come to the conclusion that the appellant was guilty of an offence under section 304, Part I, P. P. C. The learned Advocate‑General frankly stated that the appellant was not guilty of any offence.

5. In the result, I allow the appeal and set aside the convic tion and sentence passed against the appellant. The appellant is on bail and his bail bonds are discharged.

Appeal allowed.

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