1969 PLP 855 (SCMR)

When he was at a distance of a few karams from the Head Constable he fired at him. The shot wounded Ata Ullah in the thigh and he ran in order to save himself. Budhu Khan tried to prevent the appellant from firing at the Head Constable again but the appellant fired at Budhu Khan killing him at the spot. The Head Constable together with Nawaz Khan (P. W. 8), Ali Sher (P. W. 10) and Kanwal Khan (P. W. 11), ran for their lives when the appellant is said to have fired at them. They, however, escaped unhurt, but Din Muhammad, a child of about one year of age who was being carried by a boy Chajju Khan, aged about seven or eight years, was hit and got killed. The learned Additional Sessions Judge held that the version of the appellant that he had found Ata Ullah, Head Constable pulling the beard of his father was correct, but that this act of the Head Constable did not amount to grave and sudden pro vocation, under the influence of which the appellant had made a murderous assault on Ata Ullah, Head Constable. The learned Judges of Lahore High Court have, however, held that "by pulling the beard of the father of the appellant, Ata Ullah offered the appellant grave provocation and that in the circumstances of the case the provocation was sudden". As a result of this finding, in the opinion of the learned Judges, the act of the appellant in firing at Ata Ullah, Head Constable, would amount to an attempt at culpable homicide not amounting to murder. Such an offence would be punishable under section 308 of the Pakistan Penal Code. The conviction of the appellant was therefore altered from one under section 307 of the Pakistan Penal Code to one under section 308 and the sentence of three years' rigorous imprisonment awarded by the Additional Sessions Judge was reduced to two years. The learned Additional Sessions Judge had held that by shooting at and killing Budhu Khan, the appellant had committed an offence which amounted to murder under section 302 of the Pakistan Penal Code. ‑The learned Judges of the High Court did not affirm this finding. Their reasoning in respect of the killing of Budhu Khan may be reproduced in extenso :‑ "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 P. P. C. 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 P. P. C. 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 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, 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 Budnu Khan to arrest the appellant for shooting at Ata 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 Cr. P. C. But, as Ata Ullah (P. W. 9), stated in clear terms that Ali Sher and others and not lie 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 an 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 death of Budhu Khan." In my opinion, the finding of the learned Judges that the act of killing Budhu Khan by the appellant does not amount to murder cannot be sustained. Budhu Khan had seen the appellant shot at Ata Ullah at point‑blank range. Budhu Khan at once tried to catch hold of the appellant in order to disarm him and prevent him from shooting at Ata Ullah, Head Constable again. Budhu Khan at that time could not be expected to anticipate that the offence that the appellant had committed in his view would fall under section 308 of the P. P. C. and would not amount to attempt to murder or murder. A person who sees an assailant shoot at his victim with a fire‑arm is entitled to try to arrest the assailant whatever may be the offence that the assailant may ultimately be found to have committed. Section 59 of the Criminal Procedure Code has no applicability to the facts of this case. This becomes obvious by a reference to the provisions of section 79 of the Pakistan Penal Code which is in the following terms :‑ "Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it." The illustration to this section is as follows :‑ "A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment, exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self‑defence." In view of the above provisions, Budhu Khan was entitled to arrest the appellant in order to prevent him from shooting at Ata Ullah, Head Constable again. If lie had succeeded in arrest ing the appellant, his act would not have amounted to an attempt at confining the appellant wrongfully as held by the learned Judges of the Lahore High Court. As regards the death of Budhu Khan, the learned Additional Sessions Judge had rightly convicted the appellant of an offence of murder. As the High Court, however, has acquitted the appellant of murder and convicted him of culpable homicide not amounting to murder in respect of the killing of Budhu Khan, we cannot, at this stage, alter the finding and the sentence, awarded by the learned Judges of the High Court, to the appellant in respect of that offence. The learned Judges of the High Court have held that by causing the death of Din Muhammad, the appellant had committed the offence of murder. In this connection, the following passage from the evidence of the Head Constable is of the utmost importance "Shortly afterwards his son Nawab, accused, was seen coming from his house, carrying a gun. When he was at a distance of about 6 Karmns from me, he fired at me. The shot hit me in the right thigh. Ali Sher Lambardar, Kanwal Khan and Budhu Khan tried to prevent him from firing. In order to save myself ran to the back of the dera. The accused ran towards the west. He ran because first Ali Slier and others has tried to prevent him front firing and then they had shouted. "Catch him, catch him." After going some distance the accused re‑loaded the gun and turned back. I took cover behind the wall. The accused fired and the shot hit Budhu Khan. Budhu Khan at that time was going after the accused to persuade him not to fire. As a result Budhu Khan fell down. I and Nawaz then went towards Chah Roor Singhwala. Ali Sher and Kanwal Khan also came following us. We were still on the way when the accused fired a third time . . . . . . . The second shot hit Budhu Khan who fell down. The others ran away and hid themselves behind the wall. The accused fired at me the third time, but the shot did not hit me, but hit a child who was being carried by another boy." It is clear from the above quotation that the first and third shots were fired at Ata Ullah. According to the finding of the learned Judges of the High Court, Ata Ullah bad given grave and sudden provocation to the appellant. It is further clear that all the three shots were fired in a minute or so. The third shot instead of hitting Ata Ullah hit the child and brought about his death. In these circumstances, can it be said that the third shot was not fired at the time when the appellant had been deprived of the power of self‑control by grave and sudden pro vocation? If the third shot had hit Ata Ullah who was the target of the attack by the appellant, the offence would have been one of culpable homicide not amounting to murder as Ata Ullah was the person who had given the provocation. The death of child named Din Muhammad was obviously caused by means of a mistake or accident during the period when the appellant had been deprived of the power of self‑control by grave and sudden provocation. It cannot be said with any degree of certainty that the appellant had fired at Nawaz Khan and Ali Sher who were fleeing in the same direction as Ata Ullah, Head Constable. The Head Constable was quite certain that the third shot was fired at him and this is in accordance with ordinary human conduct and the probabilities of the case. Ata Ullah, Nawaz Khan, Ali Sher, and Kanwal Khan were all running away in the same direction, and the appellant would aim at the person who had given him the provocation. It must, therefore, be held that the third shot was fired at the person who had given the provocation and was fired during the time when the appellant had been deprived of the power of self‑control, by grave and sudden provocation. In this connection, the finding of the learned Judges of the Lahore High Court is in the following terms :‑ "It is obvious that the appellant had neither any right per 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." This passage does not clearly bring out the fact that Ata Ullah, Head Constable, was running away with Ali Sher and others in the same direction and that it was at Ata Ullah that the third shot had been fired. If Ata Ullah had been killed by that shot the appellant would have been guilty of culpable homicide not amounting to murder. As a child has, by accident or mistake, been killed in place of Ata Ullah, the offence committed by the appellant remains the same. For the reasons given above, we accept this appeal in par and set aside the conviction and sentence of the appellant under section 302 of the P. P. C. We convict him under section 304, Part I, for the causing of the death of Din Muhammad and sentence him to transportation for life. The sentences awarded to the appellant for causing the death of Budhu Khan and injuring Ata Ullah are affirmed. All the three sentences will run con currently. Appeal partly accepted.