P L D 1954 Lahore 119 (PLP)

KAIKAUS, J.‑In respect of an assault on Raja Muhammad Akram, A. S. I. (P. W. 9) and two Foot Constables Ghulam Nabi and Abdul Qadir, on the 11th of October 1952, Ahmad and others, altogether thirteen persons including four women were convicted by Mr. Riaz‑ul‑Haq, Magistrate, 1st Class, Pindigheb, of offences as detailed below :‑ Eight out of the male accused were sentenced to :‑ (1) one year's rigorous imprisonment each under sec tion 147 P. P. C. ; (2) two years' rigorous imprisonment each under section 225/149 P. P. C. ; (3) three years' rigorous imprisonment each under section 333/149 P. P. C. ; and (4) one year's rigorous imprisonment each under section 332/149 P. P. C.; All the four female accused were sentenced each to one year's rigorous imprisonment on each of the four counts, the sentences to run concurrently. The sentences of the male accused were also to run con currently; Shahbaz, the ninth male accused, was sentenced to two years' rigorous imprisonment under section 224 P. P. C. On appeal the learned Sessions Judge acquitted Shahbaz as Well as the female accused. Out of the remaining male accused he acquitted three and maintained the convictions of five, i.e., Ahmad. Sarfraz, Gulab, Dilwar and Abdul Wahid under sections 147, 333/149 and 332/149 P. P. C. only. The sentences passed under these sections were, however, main tained. The conviction under section 225/149 P. P. C. was set aside. All these five persons have preferred this revision petition. The prosecution case is that on the 11th of October 1952, Raja Muhammad Akram, A. S. I. (P. W. 9) went to village Rangabad in Attock District in connection with some official business. Abdus Salam Lambardar Rangabad reported to him that there was a danger of the breach of the peace between Mazullah on one side and Halim, Fateh Muhammad and Ibrahim on the other side, in respect of a piece of land. The A. S. I. sent for the persons above‑mentioned as well as one Shahbaz, who is related to Mazullah. To avoid a breach of the peace, the A. S. I. arrested Shahbaz on one side and Halim, Fateh Muhammad and Ibrahim on the other. The A. S. I. along with the Foot Constables then started for the police station. When they had gone a distance of about two or three furlongs from village Rangabad, the twelve accused (the thirteenth accused being Shabbaz himself) armed with sticks; stones and clods, attacked the police party at a place near Bun Ghazi. They shouted out to the police party to release Shahbaz and threatened them with beating if they did not release him. The police party having failed to release Shahbaz, the twelve accused assaulted the A. S. I. and the two Constables with sticks, stones and clods and caused them injuries. They succeeded in rescuing Shahbaz accused who also struggled to set himself free. He remained handcuffed but the accused took him away to some distance. Ultimately, he was taken to the village. Abdus Salam and Nazar Din P. Ws., took the A. S. I. and the two Constables to Police Station find Sultani where a report of the occurrence was lodged. On an examination of the injuries by Dr. Khurshid Alam, it was found that. Raja Muhammad Akram A. S. I. had nine injuries on his body, all caused by a blunt weapon, one of them being grievous. Ghulam Nabi Foot Constable had two simple injuries, one on the back of his right knee and the other on the back of his left hand. Abdul Qadir Foot Const able also had only one simple injury on his back. In support of the prosecution story were examined the two foot constables, Ghulam Nabi and Abdul Qadir; Halim who was also in custody as mentioned above at the time of the assault, Abdus Salam and Nazar Din, Lambardars, and Raja Muhammad Akram A. S. I. One Daim was also with the police party at the time of the assault and Fateh Muhammad and Ibrahim were also in custody along with Halim. These three had also witnessed the occurrence. They had been cited as witnesses but were given up as won over. The accused denied the commission of the offence. All except Shahbaz denied their presence at the spot. In a joint written statement the accused alleged that Shahbaz had been called by the A S. I. and directed to produce his brothers and nephews. He expressed his inability to do so whereupon the A. S. I. abused him and placed him under arrest. Their womenfolk were also sent for by the A. S. I. and insulted. At the same time, the A. S 1. had summoned Waris and other badmashes and arrested them. When Shahbaz and others were being taken away in custody by the police some persons from the village arrived and attacked the police. Amongst them were the relatives of the badmashes, who were also being taken away by the police. The trial Court accepted the prosecution story, relying upon the evidence of the prosecution witnesses mentioned above. The learned Sessions judge too accepted the prosecu tion case in so far as the main incident is concerned and he acquitted the female accused as well as three of the male accused on the ground that their participation in the assault was not satisfactorily established. It was urged before the learned Sessions judge that the A. S. I. had got no right to arrest Shahbaz and that, therefore, even such of the accused as were proved to have taken part in the assault, could not be convicted on account of the right of private defence. The learned Sessions judge came to the conclusion that the A. S. I. was not justified in law in arresting Shahbaz. He referred to the provisions of section 151 Cr. P. C. which require a design to commit a cognizable offence as a condition precedent for the right of a police officer to arrest a person. He held that there was no material before the A. S. I. to come to a conclusion that there was any design to commit a cognizable' offence. The mere allegation that there was apprehension of the breach of the peace between Mazullah, on one side, and Halim. Fateh Muhammad and Ibrahim on the other, did not imply the existence of any such design. He pointed out, at the same time, that Shahbaz was not one of the persons who had been named by Abdus Salam as one of those from whom there was apprehension of the breach of the peace and there was no justification even for calling Shahbaz. A plea was put forward before him that when Shahbaz and others were present before the A. S. I. they were going to fight and it was in order to prevent this fight that the A. S. I. acted under section

151. This plea, the learned Sessions Judge, rejected. The basis of this plea was only the statement of the A. S. I. himself who said that while the parties were before him they seemed to be on the verge of fighting, and it was for this reason that he arrested them. The two Foot Constables, Ghulam Nabi and Abdul Qadir, had not supported the A. S. I. with respect to this allegation. None of them had stated that in the presence of the A. S. I. the parries had behaved in a way from which one could infer that they were going to fight unless prevented from so doing. They had stated, on the other hand, that an effort had been made to bring about a compromise and as the parties did not compromise they were arrested. The other witnesses not only did not support the A. S. I. in this connection, but definitely negatived his statement. They stated that no quarrel between the parties took place in the presence of the A. S. I. The learned Sessions judge has pointed out that the parties were not armed and it was very improbable that in the presence of the A. S. I. they would come to blows. So, rejecting the statement of the A. S. I. on this point, the learned Session judge found that the arrest of Shahbaz was entirely without jurisdiction. He relied in this connection on A I R 1930 Lah. 348, which does support the position taken by the learned Sessions Judge. After deciding, however, that the act of the A. S. I. in arresting Shahbaz was without jurisdiction, the learned Sessions judge still refused to grant the accused the right of private defence. He referred to paragraph 2 of section 99 of the P. P. C., which says that there is no right of private defence against an act which does not reasonably cause the apperhen sion of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law. There is no discussion in the judgment of the learned Sessions judge as to whether the A. S. I. was acting in good faith and whether the paragraph on which he relied really applied. He relied also on the fact that although in respect of Shahbaz the act of the police officer may not be justified, at least in respect of Halim. Fateh Muhammad and Ibrahim the police were discharging their duty. This is not quite consistent with the earlier portion of the judgment which shows that the learned Sessions Judge did not‑regard the mere existence of an apprehension a sufficient justification for the arrest. The question which I have to decide is whether section 99 P. P. C. applies and the accused were thereby deprived of the right of private defence which would otherwise have been available to them. In order that the first or second paragraph of section 99 may apply, it is essential that :‑ (a) the act against which the right is sought to be exercised should be one that is not altogether without jurisdiction but only such as is "not strictly justifiable by law", (b) the public servant was acting in good faith. If I am to follow A I R 1930 Lah. 348 (and being a Division Bench judgment I am bound to follow it, unless I choose to make a reference to a larger bench) even the first requisite is not present in this case. In that case the facts were that Gamun, accused in that case, had taken offence at the conduct of a head constable and had threatened vengeance. A few days later Gamun accompanied by other persons had assaulted the head constable and had beaten him with kicks, fists etc. The Superintendent of Police was informed by an inspector of Police of the incident and he ordered the arrest of the accused under section 107/151. When in compliance with this order, a Sub‑Inspector and some Constables went to arrest the accused, they resisted and caused them injuries. The learned judges held, in the first place, that there was no sufficient information before the Superintendent of Police as would show that without taking action under section 151 Cr. P. C. the commission of the offence could not be prevented. The said :‑ "The Superintendent of Police did not appear in the witness‑box to state what was the information received by him upon which he ordered the arrest. In the instructions given by the Inspector to the Sub‑Inspector which the latter reduced to writing it is nowhere stated that the assailants of the Head Constable threatened to kill him. When the Inspector appeared in the witness‑box he stated that the Head Constable told him that his assailants had threatened to kill him. He further stated that' he phoned to the Superintendent of Police and repeated to him all that the Head Constable had told him. But he did not specifically state that he phoned to the Superintendent of Police that the assailants of the Head Constable had threatened to kill him. Even assuming that the assailants did utter that threat before leaving the Head Constable, there was nothing to indicate that they intended to carry out that threat and would do so unless immediately prevented by arrest. There was no old deadly feud at the bottom and the Head Constable had been suffi ciently punished for his interference in the quarrel between Gamun and the student, and he was now at the police post where there could be no danger of any further molestation by the accused: In these circumstances, there was no occasion for ordering their arrest under the provisions of section 151, Cr. P. C., and the contention to the contrary possesses no force". (p. 349). The learned Judge then held that section 99 had no appli cation to the case before them because an arrest under the circumstances would not be merely 'not strictly justifiable by law' but illegal. They observed, "No emergency for arrest which section 151 contemplates having been shown to have existed, the attempt, to arrest on the part of the Sub‑Inspector was not only `not strictly justifiable by law' but was illegal. Therefore neither clause (1) nor clause (2), section 99 Indian Penal Code, could afford protection to him." The distinction stated above is referred to in some decided cases as one between absolute lack of jurisdiction and mere illegality. The learned judges have placed an arrest under section 151 without legal justification on the tooting of acts without jurisdiction' referred to in other cases. The learned Sessions judge has held that the act of Raja N1uhammad Akram A. S. I. in arresting Shahbaz was one entirely without jurisdiction and if this be accepted the question of the applicability of section 99 would not need further consideration. I agree that Raja Muhammad Akram A. S. I. was not authorised in law to arrest Shahbaz. The only information given to him by Abdus Salam Lambardar in the report Exh. P‑F, was that there was all apprehension of a breach of the peace between Mazullah on the one side and Halim, Fateh Muhammad and Ibrahim on the other. Section 151 of the Code of Criminal Procedure runs thus :‑ "A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magis trate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented". Shahbaz was not even one of the persons reported against and even if he were a mere apprehension of the breach of the peace would not entitle to A. S. I. to arrest him. There must have been material before the A S. I. that the case was one of emergency and that without arrest the commission of the offence could not be prevented. The A. S. I. did state that in his presence the parties were going to fight and, therefore, he arrested them. The learned Sessions judge has‑disbelieved him on this point and I agree with the learned Sessions Judge. The two Foot Constables; Ghulam Nabi and Abdul Qadir have not, in this respect; supported the A. S. I. They do not mention any quarrel between the parties in the presence of the A. S. I. Ghulam Nabi (P. W. 1) states in his examination‑in -chief that all apprehension of a breach of the peace had been reported and the A. S. I. arrested the four persons mentioned above. In his cross‑examination he deposes that they made all attempt to get a compromise effected but the effort failed and they made the arrests. Abdul Qadir (P. W. 2) states that parties were asked to compromise and when they said that they were unable to come to a settlement they were arrested. Abdus Salam and Nazar Din Lambardars who are P. W. 7 and P. W. 8 respectively, expressly contradict the A. S. I. Both of them say that no quarrel between the parties took place in the presence of the A. S. I. Nazar Din says that as soon as Shahbaz etc. arrived they were arrested and that there was neither any talk nor any quarrel between the parties before the arrest. This statement finds support from the state ment of the A. S. I. himself who says : "The parties appeared before me at about 12‑30 and at the very time they were hand cuffed." As I will have occasion to observe later, exaggerations have been introduced in the case and the statement of the A. S. I. that the parties were prepared to fight, is one of them. As the learned Sessions judge has remarked, it would be highly improbable, even apart from the evidence which definitely negatives such all occurrence, that the parties would be prepared to come to blows ill the presence of the A. S. I. The finding that the A. S. I. was not entitled to arrest, would, in view of A I R 1930 Lah. 348, conclude the matter, for, as already stated, that authority excludes the operation of section 99 in cases where there is an illegal arrest in similar circumstances. I am of opinion, however, that even if the act of the A. S. I. in arresting the accused were to fall in the category of acts "not strictly justifiable by law" section 99 would still be excluded in this case on account of the absence of the second requisite that is 'good faith.' In the present case, it is not stated by the A. S. I. that he believed he was entitled to arrest even if the parties were not going to fight in his presence, and there was a mere apprehension of breach of the peace. He is an officer who deals with such cases and I will presume he knows the law in the absence of an allegation to the contrary. The fact that he relies upon the quarrel in his presence as a reason for the arrest rather shows that he does understand his powers. He knows that on a mere apprehension he could not arrest. If then, he arrested Shahbaz merely on a report of apprehension of breach of the peace, he did not act in good faith. Good faith even requires due care and attention as provided in section 52 of the P. P. C. The learned judges deciding A I R 1930 Lah. 348 had also held that the act of the Superintendent of Police in ordering the arrest under section 151 without proper materials was not in good faith because of lack of due care and attention. For this reason too the act of the A. S. I. was not in good faith. I hold, therefore, that section 99, P. P. C. does not apply and that the accused did have a right of private defence. In arresting Shahbaz the A. S. I. was guilty of an offence under section 342, P. P. C. and the accused had the right to inflict any harm, short of death, provided that they did not cause more harm than was necessary for defence. I ought to state that I am not satisfied with the view taken in A I R 1930 Lah. 348 that an arrest purporting to be under section 151 Cr. P. C. will not fall under the category of acts that are "not strictly justifiable by law" if the conditions mentioned in section 151 were not, in the opinion of the Court, present and that section 99 would not apply to such a case apart from the question of good faith. As already stated the distinction is generally stated to be as between acts that are without jurisdiction and acts that constitute an excess of jurisdiction. I would be in clined to hold that this is a case of excess of jurisdiction, and being bound by A I R 1930 Lah. 348, which is a Division Bench judgment, I might have considered whether I should make a reference to a larger bench had this been the only point on which the decision of the right of private defence rested. I have, however, found a lack of good faith, which finding by itself excludes the operation of section 9) and a reference is, under the circumstances, not called for. There can be no doubt that the accused did not inflict more harm than was necessary. I am not even satisfied that Raja Muhammad Akram received any grievous injury although that would not make any difference so far as the right of private defence is concerned. In the first information report the A. S. I. gave a detail of his injuries. He stated that he had received three blows; the first from Abdul Wahid on the head at which he fell down, the second from Sarfraz on his left phar (scapular region), and the third from Gulab on his left shoulder, Kabul and others, he stated, threw stones though he did not make it clear whether any stone had struck him. At about the end of his statement he stated his own injuries and mentioned only four, one on the head, second on the shoulder, and the third and the fourth on each of his scapular regions. In the witness‑box he has stated that the three accused mentioned above had given him blows with sticks. Yet, Dr. Khurshid Alam found as many as nine injuries on his person, one of them being grievous. Had the additional injuries mentioned by the doctor been of a kind which could be caused either by a fall or by a stone, one might have considered whether some very slight injury may not have escaped the notice of the A. S. I., when he described his own injuries. Even that might have accounted for one injury or so and the injury ought to have been very slight in order to escape notice. Dr. Khurshid Alam, however, found on his person seven lathi marks, which are described in his certificate as injuries Nos. 3 to

9. The first injury was on the head, being the blow given by Abdul Wahid which was also obviously caused by a lathi. When questioned, Dr. Khurshid Alam stated that the injuries Nos. 3 to 9 which he ascribed to lathis could not have been caused by a stone and could only have been caused by a lathi. The result, therefore, is that whereas according to the first information report only three blows were given to the A. S. I. by lathis, the doctor found on his body eight lathi marks. The so‑called grievous injury also needs mention. It is injury No. 2 and is described as follows :‑ "There is bleeding from the left ear. Blood is accompanying his sputum also when he spits. The membrane of the left ear has been torn from inside and approximately a major portion has disappeared." It will be observed that in the first information report no injury to the ear had been mentioned. There was no mention also of any blood either coming out of the ear or accompanying the sputum. In the witness‑box, the A. S. I. was asked whether any of his clothes had become stained with blood. He replied that he had been using his handkerchief which only was soiled with blood and even that handkerchief had not been produced before the investigating officer. Dr. Khurshid Alam was called a second time by the prosecution to prove how the injury No. 2 was grievous. He stated that it was grievous because blood was flowing from the ear and the membrane had been torn. He admitted that he had not tested the power of hearing of the A. S. I. He accepted also that if the membrane is torn the power of hearing is permanently affected. When questioned as to how he had come to know that the membrane had been torn, he stated that he inferred it from the fact that the ear was bleeding. He admitted that he had not himself clearly seen the torn membrane. I am constrained to hold that the A. S. I. has exaggerated the injuries with the help of Dr. Khurshid Alain. There could be no explanation of there being eight injuries with a lathi on his person when he went to the doctor while he had mentioned oily three blows with a lathi when he made the first information report. I am not satisfied also regarding the explanation of the A. S. I. with respect to there being no blood stained clothes. When questioned as to how the medical examination showed nine injuries whereas he had himself stated three in the first information report, the A. S. I. stated that as the injuries were on his back and fresh and he was feeling pain he could not give proper details of his injuries. The learned Sessions judge, who has had to remark about the exaggerations which have been introduced in this case, rejected this explanation, and I agree with him. He had not received any such injury as would cause severe pain which may affect his power of expression and his first information report, which is a detailed statement itself, belies his explanation. It is remarkable that the injury statement of the A. S. I. has not been placed on the file by the prosecution, a circumstance to which again the learned Sessions judge has had to refer. Whereas the injury statements of the two Foot Constables have been placed on the record, the injury statement of the A. S. I. is ‑mi., sing and no explanation is coming forth. I am also not satisfied with the story that merely because Shahbaz was being taken away a party of villagers including women attacked the police party. It is quite probable that something more, as suggested by the defence, had taken place at the baithak of Abdus Salam Lambardar. The suggestion is that the A. S. I. had sent for the women of the family of Shahbaz and had abused Shahbaz and insulted the women. He had enquired from Shahbaz as to where his brothers and nephews were and as Shahbaz replied that they were outside somewhere in the fields, he was abused and then arrested. It is to be observed, as already stated, that the name of Shahbaz was not among the persons from whom there was apprehension of the breach of the peace. It is not explained why Shahbaz was sent for by the A. S. I. It is admitted by the Foot Constables that Shahbaz was questioned as to where his brothers and nephews were. Here again, there is no expla nation as to why persons against whom there was no complaint were being enquired about. I find that the accused acted in the exercise of the right of private defence. I accept this revision petition and acquit them. They shall be set at liberty forthwith. A. H. Petition accepted.