1969 P Cr (PLP)

CORNELIUS, J.‑

The appellant Sardar Ali is the only one of six persons who were a prosecuted on charges of rioting and murder, whom the Courts below have found it possible to convict. He has been convicted both under section 302, P. P. C. as well as under section 147, P. P. C. As regards the latter charge, it appears that the remaining five accused persons were acquitted "because their identity has not been established beyond doubt". Special leave to appeal was granted to Sardar Ali "to consider whether the proper effect has been given, in the light of all the evidence, to the plea of self‑defence raised at the trial". Upon examination of the evidence we are clearly of the opinion that so far as concerns the conviction of murder, that plea was entitled to succeed. Separate judgments were written in the High Court by the two learned Judges who heard Sardar Ali's appeal. The senior Judge, Muhammad Shafi, J. found that the accused Sardar Ali and his companions made a deliberate assault on the principal prosecution witness Muhammad Salim, P. W. 6, and while they were engaged in beating him, the deceased Badil arrived on the spot and joined in the attack to rescue Salim, receiving injuries which included the fracture of clavicle. The learned Judge went on to observe as follows :‑ "Indignant over these injuries he (i. e. Badil) ran after Sardar Ali who was trying to make good his escape, and whom he had a right to apprehend under the law. He hit him on his head whereupon Sardar Ale turned round and stabbed him." Later, however, the same learned Judge expressed a different opinion regarding the Badil's purpose, when he observed, in the course of determining the appropriate sentence to be imposed, as follows:

"Badil, by causing two injuries on the head of the accused, may have been more actuated by malice (the possibility though remote can however not be completely excluded) than his anxiety to arrest him." Tire other learned Judge Habibullah Khan, J. found that Sardar Ali and his companions were the aggressors in the incident in which Badil sustained the injuries mentioned above and had committed cognizable offences of rioting and grievous hurt. He there proceeded to observe :‑ No doubt, Sardar Ali and his party had left the spot after the first quarrel and had walked away a few paces when Badil deceased pursued them and struck Sardar Ali with a stick, but he was perfectly within his legal right in view of the provisions laid down under sections 46 and 59, Cr. P. C. read along with section 38, F. C. R. It may be recalled that Sardar Ali was holding a drawn knife in his hand from the very beginning till the end as deposed by the eye‑witnesses. Therefore, he (Sardar Ali) had no right to stab Badil deceased twice with his knife on a vulnerable part of his body." It is clear that neither of the learned Judges who dealt with the case gave the necessary degree of importance to the circum stance, not mentioned by the senior Judge, but indicated by the other learned Judge that Sardar Ali and his companions had been separated from the others and they had walked away from the spot to an appreciable distance, before Badil commenced the action which led to his death. The admissions on this point by witnesses for the prosecution are in the most outspoken terms, which admit of no doubt whatsoever. Thus, Fazal Elahi P. W. 9 after describing the alleged aggression by Sardar Ali and his com panions upon Muhammad Salim said :‑‑ "A large number of persons were present on the spot and they intervened and separated them. After this Sardar Ali accused started to proceed towards Dhaki Dalgran, with a drawn knife in his hand. Since I did not know the two companions of Sardar Ali, therefore, I cannot say if his companions were accompanying him towards Dhaki Dalgran or not. Badil deceased and other by‑standers, including myself proceeded towards Dhaki Dalgran in pursuit of Sardar Ali accused. When Sardar Ali accused reached at a distance of about 20 paces from the Shop of Muhammad Satiny P. W. and was near the shop of a washerman Asghar by name Badil deceased succeeded in overtaking him, and also giving a blow with a club on the head of Sardar Ali accused, which had fallen on the back side of his head. Sardar Ali accused turned round and gave two blows with the knife to Badil deceased." Faqir P. W. 14, a servant of the washerman Asghar named by Fazal Elahi P. W. said :‑‑‑ "I came out of my shop, and saw the Gujjars, namely, Salim P. W. Kala Khan P. W. Kabli P. W., and others present outside the shop of Khanan. A fight had taken place there but I could not. know as to who were the parties to the fight. They were separated when I came out of my shop. The people started dispersing from the spot, and Salim P. W. was taken towards his house. Badil deceased armed himself with a stick and started to run towards Dhaki Dalgran." This witness said that his shop was 30 paces away from the place where Salim was attacked in front of the shop of Khanan. Another witness Abdul Wahid P. W. 15 stated that he saw people intervening to stop the first fight and then Sardar Ali and his companions started towards Dhaki Dalgran after which Badil arming himself with a stick went in pursuit of Sardar Ali. This stick is described as a club by Fazal Elahi P. W. 13, whose shop was very close to the spot, but on this point the fullest statement comes from Muhammad Salim who said :‑ "Badil deceased in the meantime came out of the house, holding a heavy club in his hand. He challenged the accused and asked them to stop belabouring me. Badil deceased attacked Sardar Ali with a club and gave a blow with it on his head. He was going to administer the 2nd blow to Sardar Ali accused that the latter caught hold of the club with one hand, and stabbed Badil deceased with the knife from another hand." Muhammad Salim does indeed give the impression that Badil's action followed immediately upon the attack by Sardar Ali and his companions upon himself, but they being clear state ment to the contrary indicating that there had been intervention by disinterested persons, that the first affair had been brought to an end that Sardar Ali and his companions had gone away to a distance of no less than 30 paces when they were overtaken by Badil, the appellant is entitled to the benefit of a finding that Badil's action was a fresh action and in itself an aggressive act. The theory of the right to arrest is not in our opinion tenable, in the circumstances of the case. After the by‑standers bad intervened and the parties had been separated, that right if it bad existed before must be thought to have been exhausted. The right, as given by the law to private persons to arrest certain classes of offenders, is not an inherent right of the persons acting thereunder, but is a right of the State delegated to them A under specified circumstances. Thus if immediately after Salim had sustained his grievous hurt, Sardar Ali or any other person in his company had been caught on the spot, the arrest might have been justified by reference to the right in question. But no one exercised that right in relation to the first clash, and the parties having been separated, and Sardar Ali being engaged in retreating from the spot with his companions, it is impossible to sustain the view that Badil still had a right to pursue him and to use force in order to apprehend him. As has been observed by the learned Senior Judge there was a likelihood that he was actuated by malice. The finding to this effect alters the entire aspect of the case. Upon Salim's own version, Sardar Ali finding himself being attacked from behind by an infuriated man with heavy club, was clearly justified in apprehending that he might be killed or might sustain grievous hurt. In these circumstances, he was entitled to defend his person and his life by the use of such force as he could bring to bear, and in using the knife twice to save himself, he cannot be thought to have exceeded any right of self‑defence which was vested in him. There is clear evidence that in the first. encounter, Sardar Ali and his com panions used no weapons, but only their hands and feet, while Salim's rescuers employed sticks. The statement that Sardar Ali had "a drawn knife in his hand from the very beginning" is clearly not based on the evidence. It was only when he and his party had commenced their retreat from the spot that the drawn knife was seen in his hand for the first time. Accordingly, we allow the appeal to this extent that Sardar Ali's conviction under section 302, P. P. C. should be set aside. The other conviction under section 147, P.P.C. is sustainable and we allow it to stand. Appeal partly accepted.