P L D 1970 Supreme Court 206 (PLP)

Mahmud Ali, Senior Advocate Supreme Court (Am/ad Khan, Advocate Supreme Court with him) instructed by S. Inayat Hussain, Advocate‑on‑Record for Appellants. Dilawar Mahmood, Assistant Advocate‑General West Pakistan (Muhammad Ashraf, Advocate Supreme Court with him) instructed by S. Ijaz Ali, Advocate‑on‑Record for the State. Dates of hearing: 9th and 10th February 1970. SAJJAD AHMAD, J.‑The appellants Sultan Ahmad and Muhammad Rafiq were tried by the Additional Sessions Judge,. Gujrat, for committing the murders of Mst. Rabia and Ali Muhammad in furtherance of their common intention (section 302/34, P. P. C., two counts) and found guilty of both the murders. Sultan was sentenced to death and Rafiq to transportation for life. Rafiq was awarded the lesser sentence because he had not inflicted any injury on either of the two deceased persons. On appeal and reference to the High Court (Lahore Seat), a Division Bench affirmed the convictions and sentences of the appellants, but it was observed that Rafiq Had equally deserved the death penalty and the reasons given by the trial Judge in awarding the lesser sentence to him were inadequate. In the absence of a State appeal, the learned Judges of the Division Bench, however, refrained from enhancing his sentence suo motu. Special leave was granted to the appellants by this Court to examine the contention made on their behalf that the eye witnesses of the murder of Mst. Rabia were not reliable as they had made shifting statements at different stages. In respect of the murder of Ali Muhammad, the point made was that after the murder of Mst. Rabia when a pursuit was made for the arrest. of the appellants, Ali Muhammad who also joined the pursuit party at a later stage tried to apprehend the appellants which he was not entitled to do, as the offence of murder of Mst. Rabia had not been committed within his view to give him the right as a private person to arrest them. They were thus justified in resisting their illegal arrest and in killing Ali Muhammad in the exercise of the right of self‑defence. To appreciate both these points it is necessary to advert briefly to the facts of the prosecution case. The appellants who were friends, bearing no other relation ship inter se. lived in district Lyallpur. A sister of Sultan appellant, Mst. Nur Begum by name, was married to Nazis Ahmad P. W., in Chak Bhoola in the district of Gujrat. It was alleged that Nazir Ahmad aforesaid had discarded Mst. Nut Begum some time before the occurrence and was harbouring Mst: Rabia in his house as a keep with the intention of marrying her; Sultan Ahmad appellant was annoyed over this state of affair, out of sympathy for his sister. According to the prosecution case, the appellants set out fog the house of Nazir Ahmad in Chak Bhoola on the 25th of September 1965, and reaching there at digarwela knocked at hi: door which was opened by Mst. Rabia. Sultan was armed with a pistol and Rafiq with a rifle. Immediately, both of them fires and killed Mst. Rabia on the spot. Thereafter, they ran away Nazar Hussain and Talib Hussain, P. Ws., who lived in the neighbourhood and were, at the time, going in the street toward; their house, witnessed the occurrence and ran after the appellant making an outcry. On the way, they were joined in the chase b; P. Ws., Muhammad Inayat, Muhammad Khan, Shaft and Ali Muhammad deceased. The appellants fired at the pursuit party which nonetheless continued the chase. When they had covered a distance of about three‑quarters of a mile and had reached the well of Maqbool Shah. Ali Muhammad deceased overtook Sultan and tried to catch hold of him. Sultan told him to desist and when he did not, he fired at him with his pistol hitting him in the chest causing his immediate death. The report was lodged by P. W. Nazar Hussain at the Gujrat Police Station at 7‑00 p.m., the same day, in which the incident was narrated substantially, as stated above. According to the post‑mortem examination of Mst. Rabia, she had sustained an entrance wound on the back of right chest, with its exit on the front of the right chest. There was a second entrance wound just above and at the back of the right ear with an exit wound on the left side of the head. Ali Muhammad had received only one fire‑arm wound with its entry on the left chest upper part, and its exit on the back of the left chest. Sultan and Muhammad Rafiq, appellants, were both found to be injured. Sultan had five injuries, including a contused wound on the forehead and a red contusion with a swelling around on the back of the left hand and middle finger. On X‑ray, the last mentioned injury was found to be grievous. Muhammad Rafiq had received ten injuries on his person, including two contused wounds on the head. The prosecution witnesses explained the injuries on the appellants by stating that they were caused to them by persons of the pursuit party when they overpowered them and seized their respective weapons. The appellants in their statements before the Committing Court, alleged that they were injured by Nazir and Sharaf Ali P. Ws., in Chak Bhoola where they had gone on the day of occurrence, without giving any details as to why this happened. At the trial, however, they put up a new story by stating that on the day of the occurrence both the appellants were present at the well of Maqbool Shah along with Ali Muhammad deceased when about 8 or 9 persons armed with fire‑arms, lathis and kulharis attacked them and killed Ali Muhammad. The culprits could not be identified as their faces were covered. The ocular evidence of the murder of Mst. Rabia was supplied by Sharaf Ali, a brother of Rabia deceased, and P.Ws. Nazar Hussain and Talib Hussain, already mentioned above. The trial Judge has doubted the presence of Sharaf Ali at the spot, but has accepted the statements of the other two witnesses who were living in the close vicinity of the place of occurrence and therefore their presence at the spot was quite probable and they had no motive to falsely implicate the appellants. The only criticism that has been repeated before us against their statements is that they have moulded their versions to bring them in conformity with the medical evidence. It was argued that according to the F I. R., made by P. W. Nazar Hussain, both the appellants had fired two shots each at Mst. Rabia, but as the injuries on her person were found by medical evidence to consist of only two entrance wounds with corresponding exit wounds, the number of the shots fired at Mst. Rabia was reduced to two at the trial, one each by the two appellants. The Courts below have considered this discrepancy and have come to the view that the number of injuries caused to Mst. Rabia as mentioned in the F. I. R., was due to the mistaken impression of the first informant, P. W. Nazar Hussain, with regard to the number of shots actually fired. Viewing the circumstances of the case as a whole, we agree with the Courts below that this discrepancy is not of a nature which should result in the total rejection of the statements of these two eye‑witnesses, namely, Nazar Hussain and Talib Hussain whose account of the occurrence is otherwise true and has been rightly accepted by the Courts below. As regards the murder of Ali Muhammad, the evidence furnished in the case is overwhelming, which has been tendered by persons who had chased the appellants and overpowered them at long last and relieved them of their weapons which were subsequently produced before the Police. The eye‑witnesses of this murder, include Nazar Hussain and Talib Hussain, mentioned above, Inayat, Shafi and Muhammad Khan, P. Ws., who had joined them on their outcry and Muhammad Nazir Lambardar who was similarly attracted to the spot and gave a chase to the appellants. All these witnesses have stated that it was Sultan Ahmad who had fired at Ali Muhammad deceased after the latter had perseveringly endeavoured to catch him and that Rafiq appellant had done nothing in the commission of his murder except that he had run along with Sultan after the murder of Mst. Rabia committed by both of them in furtherance of their common intention. The murder of Ali Muhammad by Sultan was thus his own individual act done at the spur of the moment, to avoid his apprehension by him. Rafiq appellant had no share directly or constructively in this crime and he cannot, therefore, be held responsible for the murder of Ali Muhammad, unless it can be said to have been committed in furtherance of the common intention of both of them, which is manifestly not the case. The argument that Sultan was justified in firing at Ali Muhammad in the exercise of his right of self‑defence, has proceeded on the basis of section 59 of the Criminal Procedure Code which, according to the contention of the learned counsel for the appellants, limits the right of private persons to arrest only those culprits who have committed cognizable and non bailable offences within their view. It is submitted that the murder of Mst. Rabia not having been committed by the appellants within the view of Ali Muhammad, he had no legal right to pursue the appellants, and much less to effect their arrest and that Sultan appellant therefore was justified in the exercise of the right of self‑defence to kill him in order to avoid his illegal arrest and damage to his own person at his hands. In support of his contention, the learned counsel has cited a judgment of this Court reported as State v. Muhammad Akbar (P L D 1966 S C 432), wherein it was said that the words "in his view" in section 59 of the Criminal Procedure Code are of the most specific nature and in their natural and proper meaning they are confined to things as actually seen and ‑cannot be extended to cover a case in which action is taken on the basis of a reasonable ground that a person sought to be arrested has committed a non‑bailable and cognizable offence in contrast to actually witnessing it. This opinion in the precedent .case was written by Mr. Justice A. R. Cornelius, ex‑Chief Justice of Pakistan, in which his Lordship referred to a decision of the Lahore High Court in the case of Muhammad Ishaq v. Crown (P L D 1954 Lah. 45) .in which it was held that the words "in his view" occurring in section 59, Criminal Procedure Code, should be liberally inter preted to embrace not only the pursuers who had actually witnessed the crime but also those who assist them in procuring the arrest of the offenders. In this case, two persons, Allah Dad and Majhi had attempted to arrest two offenders after they had heard a number of persons, including a Lambardar, raising a cry that the escaping offenders had killed a man. Shots were fired by the offenders which had killed a man and other shots had also been fired which injured Allah Dad and Majhi aforesaid. The learned Judges of the High Court in delivering their opinion came to the conclusion that in the circumstances of the case the offence could very well be said to have been committed "in the view of Allah Dad and Majhi for it was by the evidence of their own eyes and ears that they had discerned its existence". It was further opined that the pursuers who had declared that they had seen the actual crime of murder had a right to arrest the murderers and for that purpose they could make use of Allah Dad and Majhi While section 59 Cr. P. C., provides for the circumstances in which a private person may arrest an offender, section 46 lays down how is that arrest to be effected and authorizes the use of all means necessary to execute that purpose. The view as expressed in the Lahore case of Muhammad Ishaq cited above that the pursuers of a culprit who has committed a non‑bailable and cognizable offence in their presence, have a right to seek the assistance of others, proceeds on the basis of section 46 of the Code as the words "all means" used therein are very wide anal have been held to include the taking of assistance from others in effecting the arrest of such a culprit‑See Nazir v. Rex. (A I R 1951 All. 3) decided by the Full Bench of the Allahabad High Court. In the precedent case of Muhammad 4kbar relied upon by the learned counsel for the appellants, the decision of the Lahore High Court in Muhammad Ishaq's case has not been .expressly approved or disapproved. The general observations made therein indicate that the protection under section 59, Cr. P. C., afforded to a private person for the apprehension of an offender who commits a cognizable and non‑bailable offence in his presence would be available to him if he can establish his connection with the crime either by sight or by sound, that is to say, not only if he personally witnesses the crime but also if he comes to know of it from what he hears about it from persons concerned in the crime immediately after the commission of the crime. In our view, section 59 should not be construed so as burden the Legislature with the intention that in providing the shield to private individuals to apprehend the culprits who commit cognizable and non‑bailable offences in their presence, it had intended that this shield is to be limited only for those individuals who actually see the commission of the crime by their own eyes and is not available to those who come to their assistance on their outcry for help. Such a restricted view, in our opinion, would destroy the much wanted but rarely displayed public spirit on the part of the neighbors and others who might come to the rescue of the victims of dastardly crimes and help them in bringing the culprits to book. On this view of the matter and the circumstances of this case, we are of the opinion that Sultan had no justification whatsoever to fire at Ali Muhammad deceased and that his act amounted to clear murder. In the result, we uphold the convictions and sentences of both the appellants in respect of the murder of Mst. Rabia, but we find Sultan alone to be guilty of the murder of Ali Muhammad and acquit Muhammad Rafiq appellant on that count. The appeal is disposed of accordingly. Order accordingly.