P (PLP)

Any person so apprehended, and any arms, ammunition or military stores so taken by a person not being a Magistrate or Police Officer, shall be delivered over as soon as possible to a Police Officer. All persons apprehended by, or delivered to, a police officer, and all arms and ammunition seized by or delivered to any such officer under this section shall be taken without unnecessary delay before a Magistrate". The learned counsel for the Crown contended that, as the appellant was in possession of an unlicensed gun and ammunition he could be reasonably suspected to be carrying the articles for putting them to use for an ‑unlawful purpose, but as none of the witnesses for the prosecution states that the attempt to arrest the appellant was made because he was suspected of carrying the gun for using it for an unlawful purpose, this contention of the learned counsel for the Crown must be repealed. Under section 12 of the Arms Act, even a person carrying licensed arms may be appre hended by a private person provided the person, who wants to effect the arrest, has just grounds for suspecting that the arms are being carried with intent to use them or that they may be used for any unlawful purpose, and even with regard to unlicensed arms the section gives a private person no right to arrest, unless he entertains the suspicions mentioned above. I must, therefore, hold that the attempt of the deceased and his companions to arrest the appellant was not justified by any provision of law, and the question that arises, is whether or not the appellant was justified in voluntarily causing the death of Lashkar Khan. The attempt of Lashkar Khan and his companions to appre hend the appellant would ‑be an assault to wrongfully confine him and with respect to such an assault the right of private defence is governed by clause sixthly of section 100 of the Pakistan Penal Code. The clause above‑mentioned lays down that an assault with the intention of wrongfully confining a person, gives the person sought to be wrongfully confined the right to voluntarily cause the death of the assailant, if the circumstances make him reasonably apprehended that he will be unable to have recourse to the public authorities for his release. The appellant does not state that he apprehend that when arrested he will be confined in such a manner that he will be unable to nave recourse to the public authorities and it should have been obvious to him that his pursuers wanted to arrest him so that he and the unlicensed arms and ammunition that he was carrying be taken to the, police. He should have known that, when taken to a police station, he would be released on bail, if the offence committed by him was bailable, and; therefore, even if he had a right of private defence it did not extend to the voluntary causing of death of any of the persons who attempted to arrest him. It was next urged by the learned counsel for the appellant that the appellant apprehended that the deceased and his four companions wanted to snatch the gun from him and as they were trying to take possession of the gun by force their act amounted to an offence of dacoity, and the appellant had the right of private defence. of property which extended to the voluntarily causing of death under section 103 of the Pakistan Penal Code. If it were established that the act of the deceased and his companions in trying to snatch the gun from the appellant amounted to an offence of robbery, the appellant had the right of private defence which could possibly extend to the voluntary causing of death and it is therefore, necessary to examine whether or not the deceased and his companions were committing an offence of robbery. The learned counsel for the Crown admitted that the only provision of law which authorises a private person to take arms, ammu nition or military stores from another is section 12 of the Arms Act. I have already dealt with that section and need only add that it did not give the deceased and his companions the right to snatch the arm and ammunition from the appellant, because they had no just ground for suspecting that he was carrying the gun and the ammunition for using them for an unlawful purpose. That, however, does not conclude the matter. Before the act of the deceased and his companions could be held to amount to dacoity i.e., robbery by five persons, it should be clear that it was either theft or extortion. The act was obviously not extortion and it remains to be considered whether it amounted to theft. Theft is defined in section 378 of the Pakistan Penal Code as moving of any movable property with the intention of taking it dishonestly out of the possession of another. The act of the deceased and his companions could not be theft, unless it were established that they intended to take the gun and the ammunition dishonestly. Section 24 of the Pakistan Penal Code says that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". Wrongful gain and wrong ful loss are defined in section 23 of the Pakistan Penal Code, the relevant parts of which read as follows :‑

"Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled. `Wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled". It is clear from the evidence on the record and the circumstances that the deceased and his companions had no intention to cause any wrongful gain to themselves, because their intention was to take the articles to the police station with a view that the police should take the requisite action against the appellant. The learned counsel for the appellant urged that even if the deceased and his companions did not intend to cause any wrongful gain to themselves, their act was bound to result in wrongful loss to the appellant, and they must be held to be acting dishonestly within sections 24 and 378 of the Pakistan Penal Code. I am, however, not prepared to accept the contention that any wrongful loss could result to the appellant. He had no license for the gun and the ammunition that he was carrying and could not, therefore, be said to be legally entitled to the property which the deceased and his companions intended to take in their possession for the purpose of taking it to the police station. As the act of the deceased and his companions could not amount to theft, no offence of robbery was committed or attempted, and, therefore, no right of private defence of property accrued to the appellant. The next contention of the learned counsel for the appellant was that his client had a right of private defence of his person which extended to the voluntary causing of death because he apprehended that, unless he used his gun, he would be either killed or be given grievous injuries. He pointed out that Dr. S. M. Faridi, Assistant Surgeon, Talagang, who examined the appellant on the 19th February, 1950, found a number of injuries on his person. The statement of Dr. S. M. Faridi is that when he examined him the appellant had on his person the injuries detailed below :‑ .

1. Contused wound " X 1/6" skin deep left side head 3" vertically above the left ear oblique in direction.

2. A horizontal bruise 5 " X 2" left side abdomen on the back.

3. Horizontal bruise 2 "X 1" lower part left side chest on the back.

4. Oblique bruise 3"X 1" over the left shoulder blade.

5. Oblique bruise 4" X 1 " outer side left thigh in the upper part.

6. Abrasion " X " front of left knee.

7. Abrasion 1 "X 1" front of right knee.

8. Oblique bruise 3 " X 1" left side neck on the back.

9. Horizontal bruise 3" X 1 " back and outer part left arm in the middle.

10. Horizontal bruise 1 "X " back of left arm 2 " above the elbow.

11. Bruise 2 " X " right side face " below the eye.

12. Swelling 3 " X 3 " back of left hand.

13. Abrasion " X "front of left thumb. All the injuries were simple and caused with blunt weapon. Faiz Bakhsh (P. W. 6), when cross‑examined, stated that he and his companions were empty handed and neither he him self, nor his companions had inflicted any injury on the appellant. Allah Yar Khan ( P. W. 8 ), however,‑ stated that when the appellant was apprehended he struggled and resisted and got some scratches at the bands of persons who wanted to apprehend him. The statement of Allah Yar Khan ( P. W. 8) about this matter appears to accord more with the truth, but I am inclined to the view that the deceased and his companions were not all of them empty‑handed because some of the injuries mentioned by the doctor could have resulted only from blows with a blunt weapon, There is, however, no reason to doubt the statement of Allah Yar Khan that it was only after the appellant had been arrested that the captors gave him some blows, and, therefore, the mere fact that the appellant had some injuries on his person does not prove that his captors intended to' capture him to cause his death or to cause grievous injuries to him, or that he reasonably apprehended that he would either be murdered or be given grievous injuries. The appellant stated that the deceased and his companions bad giver. him some blows in order to snatch the gun and the cartridges, but as this statement is not supported by any evidence, or by the prosecution evidence, or circumstances appearing in the evidence on the record, I cannot accept the bare statement of the appellant. The question that now arises is what offence the appellant has been guilty of. The learned counsel for the Crown urged that as the appellant himself was initially in the wrong, being in possession of unlicensed arms and ammunition and had been guilty of an offence under section 19 of the Arms Act, he had no right of private defence and could not, therefore, resist the illegal arrest. He added that under no circumstances did the law give a wrongdoer the right to exercise his right of private defence, but could cite no authority in support of his contention. I am of the view that the mere fact that a person is initially in the wrong cannot take away his right of private defence if that right accrues to him by the person against whom he wants to exercise the right exceeding the power given to him by law. In the present case as the deceased and his companions wanted to effect an arrest which under the law they were not entitled to do, their act would amount to an offence of wrongful confinement and the right of private defence which accrued to the appellant could not be said to have been taker away because his captors were under a misconception about their powers to arrest him or had no criminal intention. Had the deceased and his companions been public servants, the mere apprehension of wrongful confinement would not have given the appellant the right of private defence because section 99 of the Pakistan Penal Code makes it clear that if an act is done or is attempted to be done by a public servant acting in good faith under colour of his offence, there is no right of private defence unless it is apprehended that death of grievous hurt would follow, in spite of the fact that the act which the public servant was doing was not strictly justifiable by law, but the mere fact that the deceased and his companions had no ulterior motive in arresting the appellant and were doing an act which could lawfully be done by a police officer could not take away the right of private defence accruing to the appellant. I hold, therefore, that the appellant had a right of private defence against the illegal arrest which the deceased and his companions wanted to effect.‑ I have already remarked that section 100 of the Pakistan Penal Code makes the right of private defence of person extend to the voluntary causing of death in case of an assault for the purpose of wrongful confinement only if it is reasonably apprehend ed that the person sought to be confined will not have an opportunity to have recourse to public authorities for his release but under section 101 Pakistan Penal Code the appellant had the right 'in the exercise of the right of private defence to voluntarily cause any harm other‑ than death to the assailants subject to the restrictions that more harm than was necessary for the purpose of defence was not caused. The evidence is that the appellant fired at the deceased from a distance of a few paces, and there can, therefore, be no doubt that he intended to cause death. Under the circumstances of the case the law did not allow the voluntary causing of death but as the appellant was acting in exercise of his right of private defence, but exceeded the power given to him by law, he would be guilty of an offence under section, 304, Part I and his conviction under that section is maintained. The only question left is that of sentence. The learned Counsel fox the appellant urged that the maximum sentence under section 304 Part I of the Pakistan Penal Code imposed by the trial Court was not called for, and only a light sentence would have sufficed. I agree with the learned counsel for the appellant that the maximum sentence was not called for but cannot agree that a light sentence would have sufficed. It appears that in order to shake off the persons, who wanted to arrest him, the appellant in the first instance fired in the air with a view to scare them away, but they persisted in the pursuit and may not have been entirely without blame, but the act of the appellant in firing at an unarmed man from a very short distance was such as cannot be deemed to be, anything but reprehensible. Considering all the circumstances of the case, I am of the view, that a sentence of five years' rigorous imprisonment would meet the ends of justice, and I would, therefore, partly accepting the appeal reduce the sentence from transportation for life to five years' rigorous imprisonment. A. MUHAMMAD, JAN.‑I agree.