1988 PLP 662 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This Criminal Appeal through leave of the Court, is directed against judgment in appeal dated 24‑11‑1986 of the Sind High Court; whereby appellant's conviction under section 304(II), P.P.C. was set aside, he was convicted under section 325, P.P.C. and the sentence was accordingly reduced. Leave to appeal was granted to examine: whether the appellant had right of private defence. The prosecution case as disclosed in the testimony of Shabbir Ahmed, A.S. I., an eye‑witness and also the complainant, is as follows:‑ "I knew deceased Abdul Ghani, so also know the accused present in the dock of the Court On 12‑5‑1982 at about 3‑00 p.m. I was present on the K.P.T. Gate alongwith Khan Muhammad Hawaldar, Abdul Ghani and Niamat Gul. Deceased Abdul Ghani asked the accused who wanted to enter into K. P. T. to show the gate pass on which he replied that he is employee of Custom, therefore, he cannot show the Gate Pass. Deceased Abdul Ghani went on insisting him to show the pass. On which accused took a pass from his pocket and waived the same in front of the eye of the accused. On this there arose quarrel and scuffle between deceased and accused. Thereafter, we caught hold the accused and brought him in office of K.P.T. which is near the gate. We tried to settle the matter, in the meanwhile deceased Abdul Ghani came there. Seeing Abdul Ghani accused lost his temper and gave him fist blow on his ear. Abdul Ghani fell down on the ground. We took him and got him lie on the bench and after a moment he died. " To the same effect is the testimony of two other eye‑witnesses in the examination‑in‑chief. In cross‑examination, it was elicited that after the appellant had shown the pass, it was neither permissible, nor necessary (in good faith) to catch hold of him and bring him, by use of force, to the room where he was being held in wrongful confinement as result of illegal arrest. One of the eye‑witnesses when questioned about the manner in which the appellant was 'brought' into the room, did not deny that it was by dragging him. The picture thus developing is that the appellant when in the illegal custody of the complainant‑side including the deceased, in a desperate attempt to extricate himself and run away to safety, gave a fist blow to one of them who had earlier grappled with him; and, made good his escape. It has already been held by the High Court that the offence committed was under 325, P.P.C. It however, did not allow the extension of benefit of right of private defence. During the hearing of the appeal, we put it to the learned counsel for the State whether, in the afore‑noticed facts, it was not possible to extend to the appellant the right of private defence. He remained unable to press any argument. In our view in the beginning the deceased had grappled with the appellant. It was without justification. He had also become a party to the illegal arrest and wrongful confinement of the appellant, l in the furtherance of the common intention of them all (the eye‑ witnesses and the deceased). The appellant could not have recourse to any other lawful authority for his release. He must have genuinely felt apprehensive regarding the safety of his person. Accordingly he by using his fist, in an act of self‑defence, gave a blow to the deceased. which per chance caused his death. His conviction under section 325, P.P.C., therefore, is not justified. He was entitled to acquittal due to exercise of right of private defence. It is held accordingly. This appeal is allowed. The appellant is acquitted. He is on bail. His bail bonds shall stand discharged. M. Y.H./M‑346/S??????????????????????????????????????????????????????????????????? Appeal allowed.