P L D 1967 Lahore 588 (PLP)

SHAUKAT ALI, J.‑Ramzan (35), was tried under section 302 P. P. C. for the murder of Azmat Ali, and his companion Muhammad Tufail (25) was also tried under section 302/114, P. P. C. for the abetment of the said murder, on the 14th of August 1964, in Chak No. 132/6‑R. The learned Additional Sessions Judge, Bahawalpur at Bahawalnagar, who tried them, convicted Ramzan under section 302, P. P. C., for the murder of Azmat Ali and sentenced him to suffer death. Muhammad Tufail was convicted under section 302/114, P. P. C. and was ordered to suffer transportation for life. Both the convicts have filed two separate appeals (Criminal Appeal No. 850/65 by Ramzan and Criminal Appeal No. 'f77/66 by Muhammad Tufail), and the case of Ramzan is also before us under section 374, Cr. P. C. for confirmation of sentence of death. We propose to dispose of the appeals and the reference for confirmation of death by sentence by a single judgment.

2. The story for the prosecution, briefly narrated, is that Ramzan appellant was accommodated by Azmat Ali deceased in his ihata sometime before the occurrence. On 10th August 1964, Muhammad Jamil, A. S. I. (P. W. 7), visited Chak No. 132/6‑R in connection with the investigation of a theft case and carried out search of the house of Ramzan appellant in his absence and recovered some articles suspected to be stolen property. The A. S. I. asked the deceased and Muhammad Bashir P. W. to A produce Ramzan appellant before him. The A. S. I. visited the Chak again on the 12th of August 1964, and asked the deceased to produce Razman before him whenever he was available.

3. On 14th August 1964, Azmat Ali deceased, Faqir Muhammad and Muhammad Ashraf P. Ws. saw Muhammad Tufail appellant coming out of the house of Ramzan appellant. The deceased enquired from him the whereabouts of Ramzan, who told the deceased that he was near the canal. The deceased told Muhammad Tufail appellant that he and Ramzan were wanted by the police as suspects in a theft case, to which Muhammad Tufail replied that they would appear before the police and that he would convey the message to Ramzan. The deceased insisted that he would like to talk to Ramzan. Therefore, Azmat Ali deceased, Faqir Muhammad and Muhammad Ashraf P. Ws. followed Muhammad Tufail appellant and found Ramzan appellant coming out of fodder held. The deceased asked him to surrender, but Ramzan appellant told him not to come forward. Despite this warning the deceased advanced towards Ramzan B whereupon Muhammad Tufail exhorted Ramzan to fire at the deceased. Ramzan appellant fired a shot from his gun, which bit the deceased, who fell down on the ground and died then and there and the appellants decamped towards the canal.

4. Muhammad Ashraf P. W. leaving Ali Muhammad and Faqir Muhammad P. Ws. with the dead body went to Muhammad Bashir P. W. in the village and informed him about the occurrence. Muhammad Bashir P. W. in the company of Muhammad Ashraf P. W., Rehmat Ali and others reached the spot and found the dead body of Azmat Ali lying by the side of the path. He deputed 10/12 persons in search of the accused and himself went back to his dera where Abdul Ghafur, A. S. I., was camping and made statement Exh. P. G. at 2 p. m. It may be mentioned that the place of occurrence is at a distance of 23 miles from Police Station Haroonabad, while Police Post Faqir Wali is at a distance of 10 miles.

5. The A. S. I. sent the statement to Police Station Haroonabad for the registration of the case and a formal first information report Exh. P. G/t was recorded by Muhammad Bakhsh, Sub‑Inspector (P. W. 10), the same day at 6‑15 p.m. The A. S. I. then left for the spot. On reaching there he found the dead body of Azmat Ali lying on the path. He prepared the injury statement and the inquest report relating to the deceased and despatched the dead body to the mortuary for post‑mortem examination. At the spot he found an empty cartridge Exh. P.

3. The same was taken into possession and made into a sealed parcel vide memo. Exh. P. B. The A. S. I. then went in search of the accused and came across Muhammad Bakhsh, Sub? Inspector in Chak No. 57/4‑R, who was also there in search of the accused. He handed over the investigation to him. The Sub? Inspector arrested the appellants on the 15th of August 1964, from the garden of Nazir Ahmad in the area of Chak No. 57/4‑R, which is at a distance of 12/13 miles from the place of occurrence. At the time of apprehension Ramzan appellant was carrying '12 bore gun Exh. P.

1. On his personal search two live cartridges Exh. P. 2/1‑2 were recovered from the fold of his loin cloth. The gun and cartridges were taken into possession and sealed into a parcel vide memo. Exh. P. H.

6. The autopsy on the deed body of Azmat Ali was con?ducted by Doctor Muhammad Azim (P. W. 1), on the 15th August 1964, and the following injuries were found thereon:‑ "There were pellets wound in front of chest and abdomen up to the level of unbilicus below and up to clavicle above. There were also pellet wounds on the interior parts of both upper arms. All these wounds were over eighty in number. All the pellet wounds were 1/10" x 1/10" in diameter, varying in depth from skin deep to peritoneum deep chest cavity deep and heart deep. One pellet wound at the centre of body of sternum went through this wound deep to heart. This wound was 1/2" x 3/8" deep to heart. Left lung showed 8 pellet wounds near the interior border. The right lung showed two pellet wounds. Heart showed 12 pellet wounds on the interior surface. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of injury No. 1, which was sufficient to cause death in the ordinary course of nature.

7. Direct evidence regarding the commission of crime is furnished by Muhammad Ashraf (P. W. 13), Faqir Muhammad (P. W. 14) and Ali Muhammad (P. W. 15) in their statements. Rao Riaz‑ud‑Din (P. W. 8), Muhammad Aslam son of Ata Muhammad (P. W. 9), Sh. Muhammad Bakhsh, Sub‑Inspector (P. W. 10), Muhammad Aslam, son of Ch. Ghulam Ali (P. W. 11) and Abdul Ghafur, A. S. I. (P. W. 16) testified to the recoveries. Muhammad Bashir (P. W. 12) lodged the first information report after hearing the occurrence from Muhammad Ashraf P. W. The evidence of other witnesses is of a formal nature.

8. Both the appellants denied the prosecution allegations. No evidence was called in defence.

9. Ch. Eitizaz Hussain, learned counsel for Ramzan appellant, has argued that the first information report Exh. P. G. was recorded at the place of occurrence after the investigation of the case had commenced and not at the dera of Muhammad Bashir P. W. Abdul Ghafoor, A. S. I. (P. W. 16) had reached the village at 9/10 a. m. and was camping at the dera of Muhammad Bashir P. W. on that day. The shop and dera of Muhammad Bashir P. W. are situate at one place. Muhammad Bashir P. W. came to know of this occurrence at about 1.30 p.m. through Muhammad Ashraf P. W. It does not stand to reason that Muhammad Bashir P. W. did not inform the A. S. I. of this gruesome murder, who was staying with him, but went off on his own to the place of occurrence. It appears that Muhammad Bashir P. W. accompanied the A. S. I. to the spot and made the statement there. This finds support from the statement of Abdur Rehman (P. W. 6), brother of the deceased, who had admitted that the report was dictated to the A. S. I. by Muhammad Bashir P. W. at the spot. In this view of the matter, we hold that the first information report was recorded at the spot after the A. S. I. had gone to make the investigation at the place of occurrence. In the presence of clear statement of Abdur Rahman P. W. it is difficult for us to accept the version of Muhammad Bashir P. W. and Abdul Ghafoor, A. S.1. (P. W. 16) that the statement was recorded at the dera. We are constrained to hold that the first information report was recorded at the spot after the investigation had been taken in band.

10. It is now well‑settled that the first information report recorded after the commencement of the investigation is a statement of a person before the police and is inadmissible in evidence. Therefore, we hold that there is no first information report in the present case, the same being inadmissible.

11. The prosecution in support of its case relied on the deposition of three eye‑witnesses, namely, Muhammad Ashraf (P. W. 13), Faqir Muhammad (P. W. 14) and Ali Muhammad (P. W. 15) and the recovery of gun Exh. P. 1 and empty cartridge Exh. P.

3. These eye‑witnesses are the co‑villagers of the deceased and their village is at a distance of about two squares from the place of occurrence. Therefore, they were the natural witnesses. No suggestion was made to these witnesses that they were inimical and there is nothing on the record to discredit the testimony of these witnesses. The endeavour was made by the defence to show that they had given an exaggerated version of the incident in respect of Muhammad Tufail appellant. We are of the view that these witnesses had not deliberately told lies as they had no motive to do so, but they had ?o hypnotized themselves into the belief in attributing the part to Muhammad Tufail appellant that they deposed that the incident had happened in the manner as alleged by them. The learned trial Judge too has given cogent and substantial reasons for accepting their testimony. The ocular evidence is also corroborated by the recovery of gun Exh. P. 1 and Cartridges Exh. P. 2/1‑2 from the possession of Ramzan appellant, Tajammal Hussain (P. W. 2), Firearms Expert, had deposed that the empty cartridge Exh. P. 3 was fired from the gun Exh. P. 1.

12. We are doubtful about the participation of Muhammad Tufail appellant in the incident. It does not sound logical and natural that Ramzan would shoot only at the instance of Muhammad Tufail appellant, when he himself found that Muhammad Tufail was being followed by the deceased and his companions, who were there to apprehend them. We also find that Muhammad Tufail appellant was empty‑handed and the only part attributed to him by these eye‑witnesses was the uttering of a lalkara. Apart from that. the evidence as to the apprehension of Muhammad Tufail appellant is also discrepant. The allegations of lalkara are very easy to make. We are not impressed with the evidence of lalkara as narrated by these witnesses. In a recent pronouncement by the learned Judges of the Supreme Court in Abdul Aziz v. Bashir Ahmad and another (P L D 1966 S C 658), it was held that "such allegations are very frequently made and the Courts are found to reject them with almost equal frequency in the absence of anything to indicate an earlier conspiracy."

13. The result, therefore, is that so far as the offence under section 302/114, P. P. C. is concerned, the charge is not brought home against Muhammad Tufail appellant beyond all reasonable doubt. He is entitled to benefit of that doubt and must be acquitted. Therefore, we acquit him, accordingly.

14. It was stoutly argued by the learned counsel that Muhammad Jamil, A. S. I. (P. W. 7) had no right to give directions to the deceased and Muhammad Bashir P. W. to produce Ramzan accused before him, who was wanted in a theft case, as the A. S. I. had no right to give oral direction to a private individual to arrest a wanted person and that Ramzan appellant had the right to defend himself against an unlawful arrest. In order to appreciate this argument, it would be necessary to examine the provisions of section 59, Cr. P. C. and sections 99, 100 and 101 of the Pakistan Penal Code. Section 59 of the Criminal Procedure Code deals with the arrest by private persons. A private person is empowered to cause the arrest of a person, if he is a proclaimed offender or be, in his view commits a non‑bailable and cognizable offence, but he cannot cause the arrest on mere suspicion. So the powers of a private individual to arrest are necessarily much more limited as compared to a police officer. We are clear in our mind that the deceased had no authority to apprehend or arrest Muhammad Tufail and Ramzan appellants, as, being a private person, he could not make their arrest, when no offence had been committed in his view and that the deceased was not competent to execute the A. S. I 's order for arrest as the instructions for the arrest were illegal. The apprehension of Ramzan appellant by the deceased may be a laudable and noble, but at the same time, it must not be forgotten that the deceased was wrong in implementing the order of the A. S. I. In this view of the matter, we hold that the deceased suffered death when he was not engaged in the lawful execution of his duty.

15. The next question that falls for determination is whether Ramzan appellant was entitled to cause the death of the deceased to protect himself against an unlawful arrest. Section 100 of the Pakistan Penal Code. relied upon by the learned counsel may be reproduced with advantage:‑ "

100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:‑ First.‑Such an assault as may reasonably cause the apprehen?sion that death will otherwise be the consequence of such assault; Secondly.‑Such an assault as may reasonably cause the appre?hension that grievous hurt will otherwise be the consequence of such assault; Thirdly.‑An assault with the intention of committing rape; Fourthly.‑An assault with the intension of gratifying unnatural lust; Fifthly.‑An assault with the intention of kidnapping or abducting; Sixthly.‑An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."

16. The extended right of private defence up to the voluntary causing of death to the assailant arises only if the offence which occasions the exercise of the right be of any of the descriptions mentioned in the section. The offences mentioned in the various clauses of this section make it clear with the intentions accompanying or the results following the assaults, would make the conduct of the assailant an offence under the Pakistan Penal Code. The first two clauses deal with such assaults as to give rise to the apprehensions that the offence of murder are culpable homicide not amounting to murder or the offence of causing of grievous hurt would be the result. The third and fourth clauses mention assaults with the intention of committing offences of rape and of gratifying unnatural lust. The fifth clauses deals with kidnapping or abduction. The sixth clause, with which we are concerned, deals with assaults with the intention of committing acts which would be offences of wrongful confinement. Clause sixthly apparently refers to violation of liberty with the intention of wrongfully confining a person. Section 100 must be read with sections 99 and 101 of the Pakistan Penal Code. The effect o reading sections 99, 1(0 and 101, P. P. C. together would not render an individual entirely helpless in the matter of his unlawful arrest. No doubt these sections limit the force which he may exercise. He is permitted to cause any harm other than voluntary causing of death. We also notice that under section 99 of the Pakistan Penal Code there is no right of private defence against an act which does not reasonably cause the apprehension of death or grievous hurt, if done in good faith by a public servant under the colour of his office, though that direction may not be justified in law. In the instant case, we find that the deceased was done to death by Ramzan while evading his arrest. Ramzan appellant was aware that he was wanted by the police and that the deceased wanted to take him to the police station for the purpose of being handed over to the police. Therefore, it would appear that the case of Ramzan appellant is not even covered by clause sixthly of section 100, P. P. C., as there was no intention on the part of the deceased of wrongfully confining him; he was being taken to the public authorities, and that the appellant had no right to defend F against the unlawful arrest such as this. We are, therefore, of the opinion that Ramzan appellant had not the right of private defence of his person and was not justified to cause the death of the deceased.

17. The question of sentence in this case is not very easy. We have already held that Azmat Ali deceased was acting without lawful authority. This Court no doubt, would be reluctant to support the action of a person who acted without lawful authority and cannot be harsh to a person who attempted to protect himself from the illegal invasion of his liberty.

18. We may say that Muhammad Jamil, A. S. I. asked the deceased to do what he was required by law to do himself, that is, to arrest Ramzan appellant, who was wanted in a theft case. The A. S. I. while giving this instruction, no doubt, acted carelessly and appears to be ignorant of the very elementary provisions of the Criminal Procedure Code, which apply to matters of arrest. We would like the Inspector‑General of Police, to proceed against the A. S. I. departmentally for dereliction of his duty.

19. Taking the whole circumstances of the case into consideration we uphold the conviction of Ramzan under section 302, P. P. C. and are of the opinion that substantial justice will be done if the sentence of transportation for life is substituted for that of death and we order accordingly. The sentence of death is not confirmed. R. M. A.????????????????????????????????????????????????????????????????????????????????? ??????????? Sentence reduced.