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Criminal Appeal No. 190 of 1949, decided on 22nd November, 1949.

S. 100‑Pursuit of robbers by accused's party‑Robbers attacking Pursuers‑One robber killed ‑Right of private defence‑Criminal Procedure Code (V of 1898), Ss. 46 (3), 59‑One only of pursuer's party actually wit nessing attempt at robbery‑Whether right of private defence open to other pursuers.

Where on evidence, it was not improbable that one of the accused's party first attempted to arrest a party of robbers who had been unsuccessful in their attempt to steal cattle and where the persons whom he was attempting to arrest attacked him, he being the only person who had seen the robbers attempting to commit robbery.

Held, that the companions of the accused attempting the arrest had the right of defending his person.

It appears anomalous that if a person in whose view an offence is committed may arrest a person and his companions may come to his rescue if the offender attempts to cause injury to him, yet if the person in whose view the crime is committed has been injured so that he lags behind, the offenders have a right of private defence against any attempt by those companions to arrest them.

A. I. R. 1947 Sind 107 ;.I. L. R. 1946 Karachi 344 distin guished.

Jamal M. Siddique, for Appellants.

Fatehchand Assudomal, Advocate‑General, for Crown.

The appellant Shadi, has been convicted under section 304, Part 11, of the Indian Penal Code arid sentenced to three years' rigorous imprisonment, while the other appellants have been similarly convicted and sentenced under section 304, Il, in addition to receiving concurrent sentences of one year s rigorous imprisonment arid three months rigorous imprison ment under sections 326 and 324 respectively.

The learned Advocate‑General has not contended that the facts as found by the learned Sessions judge are not correct. The incident occurred near the boundary‑ of the State of Kalat and within the Upper Sind Frontier District. The appellant version was that Shadi had seen the deceased Ghani, son' of Rarnzan, prosecution witness Ghani, son of Lalbux and the other prosecution witness Khabar making off with cattle belonging to Shadi ; he pursued them when they .fled and his cries attracted the other three appellants ; they had a fight with the prosecution witnesses, in the course of which the deceased Ghani received. a mortal injury ; Ghani made his way to his home in Kalat State a mile away despite this injury ; Ghani, son of Lalbux and Khabar were arrested. bounu with turbans, and then taken to the Police outpost. There a first Information was lodged by Shadi, in which he stated that he saw four persons driving away his bullocks and he then challenged them, on which the culprits left the bullocks and started running away he pursued the thieves, raising cries of thief, thief and on his cries Rasulbux, Arbab, Validad came, and the four of then overtook the culprits and grappled with them. Punhu, Khabar, and Ghani Rind, and Shahbaz had hatchets with which they inflicted injuries on all the four appellants.

Immediately after this the witness Ghani, son of Lalbux filed a counter first information in which he stated that he and Khabar had been on their way to see why the water in the canal had failed, and as they were on their way, the appellants emerged from a canal and attacked them.

Neither of the first infatuations mentioned the deceased Ghani. He however, died the same night and his brother, Shahan, gave information to the authorities in Kalat. The Tahsildar held an inquest on the body, finding that he had a serious injury upon his face involving the main vein, and a wound on the back, a palm in length. There is apparently no system of medical Post‑mortems in Kalat. The Tahsildar also went to the scene of the offence where he found two teeth and a trail of blood leading from the scene to the house of deceased Ghani, both being matters which the Sub‑Inspector apparently had not noticed.

Khabar had three incised wounds, one of them puncturing his lung on the right side of the back, another producing a com pound fracture of the humerus, and the third being 2 " x 1" x " on the left side of the back. Ghani, son; of Lalbux had a contused wound 1 " x 1/8" skin deep on the parietal region.

On the appellant's side, Arbab had a grievous injury caused by a hatchet. while Shadi and Validad had simple injuries caused by hatchet.

The statement in the lower Court by Rasulbux was adopted by all the other appellants and adhered to in Sessions Court. The statement was to the same effect as the first information except that the persons involved on the prosecution side now included the deceased Ghani instead of the Shahbaz mentioned in the first information. The statement is as follows :‑‑-

" About one and half year's back at midnight there were cries of thief, thief I and my brother Abbad went there. We saw that accused Shadi was crying thief, thief, and following some persons, who were four in number. At this time Validad accused was also there. The culprits left the bullocks. We chased tire culprits who threw sticks at us but secured two out of them. The other two ran away. These whom we secured were Khabar and Ghani. On one side my brother received a hatchet injury at the hands of culprits. Validad and Shadi also received injury. Ghani and Khabar also received injuries. We then took the injured and the accused to the police station at Phul Musafirkhana. Shadi lodged the First Information Report and we produced the accused."

In the Sessions Court in reply to the question, "Did you cause injuries to deceased Abdul Ghani and prosecution witnesses Ghani and Khabar " he said, " I had caused injuries in exercise of the right of private defence of person and property but I. cannot say who received those injuries.

The learned Sessions Judge found that the prosecution case was itself improbable and differred from the First Information lodged by Ghani, son of Lalbux and he accepted the defence story that Shadi had found the four thieves removing his bullocks that on detection they had started to run away that he pursued them that attracted by his cries the other appellants joined in the pursuit, and that the four of them overtook the culprits The Advocate. General does not dispute his, findings, and we agree with them.

The learned judge then continued that since the deceased Ghani and one injury on his back and since Khabar had two wounds on the back, the inference was that injuries were inflicted on' them while they were still running away. On the other hand, the fatal injury to the deceased Ghani was on his face while Khabar had a compound fracture of the humerus which might have been inflicted from the front, while the wound on Ghani, son of Lalbux was on the side of the head and not at the back. The learned judge, however, did not stress this aspect of the case, for he proceeded to assume that the prosecution party was the first to strike, and held even on this assumption that they did so in exercise of their right of private defence on the ground that three of the appellants pursuing them had not seen the offence committed.

As regards Shadi, he said there was no justification in causing the death of the deceased Ghani for section 46 (3) Criminal Procedure Code lays down, "Nothing in this section gives a right to cause death of a person who is not‑accused of an offence punish able with death or with transportation for life."

The learned judge relied upon the ruling of this Court in Fakiro v. Emperor, A I R 1947 Sind 107‑1946 I R Karachi 334. The circumstances, however, in this care are distinguishable. The learned Advocate‑General states that there is nothing on record to shew that Shadi, in whose view a non‑bailable and cognizable offence was committed, was not the person who first attempted to arrest the fugitive offenders. Both in Fakiro's case and in Abdul Aziz v. Emperor, A. I. R. 1933 Patna 508 (on which Fakiro's case relied), the person in whose view the crime was committed was behind the leading pursuers and was not the person attempting to arrest the offenders. In this case, on the contrary, we think, and the learned Advocate‑General agreed, that it is not improbable that Shadi himself first attempted arrest. If this was so and if the persons whom he was attempting to arrest attacked him, then his companions had the right of defending his person. What is more, Shadi was given a blow with a hatchet, an act which amounted to an attempt to cause grievous hurt; in that case his coinpani6tis would also have the right of arrest under section 59 Criminal Procedure Code and, if attacked, of defending themselves: The offenders, as one would expect in cattle thieves, were armed and used their arm. On the whole, therefore, we consider that the appellants exercised the right of private defence within the limits of the Pakistan Penal Code.

The learned Sessions judge stated that it appeared that the assessors based a finding of not guilty on the popular belief that any person can arrest an offender in fresh pursuit despite the fact that the offence be not committed in his view and tat the law with regard to arrest by private persons is not in conformity with the conditions prevailing in Sind and was calculated to give encouragement to criminals. We agree with those remarks. In this case it is only because there is nothing on record to show that it was not Shadi who first attempted arrest that the appellants have succeeded in avoiding imprisonment, though according to common notions, their actions were commendable. It appears anomalous that if a person in whose view an offence is committed may arrest a person and his companions may come to his rescue if the offender attempts to cause injury to him, yet if the person in whose view the crime is committed has been injured; as in Abdul Aziz's case, so that lie lags behind, the offenders have a right of private defence against any attempt by those companions to arrest them.

Once more we should like to endorse the remarks of Rowland, J., in Abdul Aziz v. Emperor, (1933) A I R Pat. 503 ;

"I agree both as to the facts and as to the law. It seemed, at first sight paradoxical that Zalim could claim aright of private defence against Ramkishun. Ramkishun had heard his father crying out and saw Zalim in flight and pursued by Ganpat who was pressing his hands to the mortal wound. Ramkishun gave chase and for this Zalim stabbed him to death. But examination of the statutes and the authorities has convinced us that there is no escape from the position that the law is as my learned brother has stated it, and we have to apply the law as we find it. It is popularly believed that a private person is entitled to arrest not only n criminal whom he sees in the act of doing the crime, but one whom he sees in the act of flight immediately This is not the law see Kalal v. Kalu (1900) 27 Cal. 4 C W N 252 and Bolai v. Emperor (1907) 35 Cal. 361‑7 Cr. L J 188; 12 C W N 367. If it is felt that the law is not in in conformity with public feeling and the public conscience the only remedy is by way of amendment".

We allow the appeals, set aside the convictions of the appellants and direct that they be set at liberty.

A. H. Appeal accepted.

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