P L D 1966 Supreme Court 432 (PLP)

CORNELIUS, C. J.‑This judgment will dispose of two criminal matters, namely, Criminal Appeal by Special Leave No. 40 of 1964, by the State against the acquittal of the respondent Muhammad Akbar at the hands of the High Court on a charge of murder, and Criminal Petition for Special Leave No. 264 of 1964, by the aforesaid Muhammad Akbar against his separate conviction on a charge under section 19 of the Arms Act, which has been upheld in appeal by the High Court. The two cases arose out of the same incident, which took place on the night of the 24th September 1961 in a suburb of Lyallpur town. The prosecution case was to the effect that in consequence of hearing an alarm of `thief', `thief', a number of residents of the locality led by Latif Shah, P. W. 15, who were on patrol duty, seeing two persons approaching them, who were followed by others crying `thief', thief', attempted to stop them, whereupon one of these men, who was the respondent Muhammad Akbar, fired three shots with a revolver, two of which bar struck one of the patrol party Qudratullah and injured him fatally. The patrol party used their sticks and Latif Shah hit the revolver out of Muhammad Akbar's hand, after which he was caught. Further blows were given to Akbar before he was overpowered. The other man escaped. The prosecution further attempted to prove that Muhammad Akbar and his companion who was said to be one Malla (this man was also acquitted by the High Court, but this Court refused to grant special leave to appeal against his acquittal) had entered the house of one Mehr Din that night and in consequence of Mehr Din raising an alarm, they took to their heels, pursued by cries of `thief', 'thief', until they were faced by the patrol party. Muhammad Akbar's case was that he was returning from a visit to a cinema in the city, and when an alarm was raised, he was suddenly surrounded by Latif Shah and others. It was Latif Shah who fired at him, but the bullets struck Qudratullah. The men in the patrol party had given him blows and falsely charged him with possession of the firearm. The trial Court convicted Muhammad Akbar under section 302 as well as under section 307, P. P. C. The co‑accused was convicted only under section 323, P. P. C. In separate trials Muhammad Akbar was convicted under section 458, P. P. C., for breaking and entering the house of Mehr Din, and under section 19 of the Arms Act for possession of an unlicensed revolver. On appeal, a learned Single Judge in the High Court acquitted him of the offence under section 458, P. P. C., but maintained his conviction under section 19 of the Arms Act. His appeal against his conviction under section 302, P. P. C., was heard by a Division Bench of the High Court. The learned Judges placed due importance on the need for the prosecution to connect Muhammad Akbar with the alleged act of lurking house trespass committed in the house of Mehr Din. They noted certain defects in Mehr Din's statement. He was an old man of 70, who died after he had made his statement in the committing Court, which is so brief that it may well be reproduced in full:‑ "About three months ago, at about 2 a. m., while I was sitting on the cot and was meditating. I saw a man on the outer wall of my house who came in and fell upon me; another man was standing at a distance of seven or eight steps from me near a nalka. The first man caught me from my neck. I twisted his small finger and got myself released. I raised an alarm; both the culprits ran away when other people came there." There was no cross‑examination, and plainly, the statement is wholly inadequate as a means of identifying the intruders with the accused persons. The Division Bench emphasised this matter and then went on to observe that "none of the prosecution witnesses has stated that he had seen the culprits emerging from the house of Mehr Din." This is regrettably incorrect, for there was on the record a statement by Ali Muhammad, P. W. 14, a neighbour of Mehr Din to the effect that after hearing the alarm he "saw two persons running away after coming out from the house of Mehr Din". However, the learned Judges went on to say that four prosecution witnesses Karim Bakhsh, Ali Muhammad, Khushi Muhammad and Salim had deposed that they had seen Muhammad Akbar and his companion running away from the direction of Mehr Din's house, and gave a reason for holding that even if these four persons did see the two accused persons running away, they did not provide sufficient justification for pursuing them. The record shows that Khushi Muhammad belongs to the same category as Ali Muhammad, namely, he is a neighbour of Mehr Din, and when he heard the alarm and came down into the street, he saw two persons running away, who were Muhammad Akbar and Malla. He says he ran after them for a distance of 10 or 20 paces only. By this time, there were 20 to 40 persons following the accused and since the distance from Mehr Din's house to the place where the shooting occurred is a matter of two squares, say 750 yards, he could not speak as to the end of the chase. As for Ali Muhammad, he ran after the men only a few paces and then returned on account of fear. Neither Ali Muhammad nor Khushi Muhammad deposed that he continued the alarm by shouting `thief', `thief'. Salim, P. W. 19, appears also to be a neighbour of Mehr Din. He came out on hearing the alarm, but did not go far in pursuit for he gave no details of the final incident nor does he say he joined in continuing the alarm of `thief', `thief'. His admission in the committing Court that he could not identify the men because it was dark and that he even could not distinguish the colors of the clothes they were wearing shows that the evidence he can give is o‑f things seen from a great distance. It is thus clear that none of those witnesses who saw the escaping men in the vicinity of Mehr Din's house either themselves raised, or continued the alarm. With reference to the evidence of Latif Shah, Rang Elahi and Muhammad Ali, who with the deceased Qudratullah finally stopped the escaping men, the learned Judges found that these persons were not justified in their attempt to capture the two men. They came to the conclusion that Muhammad Akbar had fired the shots after he had been given stick blows by his pursuers on the ground that it was difficult to believe that those pursuers would have come close enough to give him blows with lathis, if he had already brought his firearm into play. In this respect, the learned Judges could also have placed reliance on the admissions by Latif Shah and others of these witnesses that Akbar was given blows by them before he fired, as well as on the circumstance that the greater number of 21 separate injuries which were found on the person of Muhammad Akbar were on his back, which is entirely consistent with the blows having been showered on him in the course of the pursuit as the pursuers came up to him. The learned Judges saying that the injuries of Muhammad Akbar were proof of "very heavy belaboring," went on to observe that a person who is not connected with any crime and is given a gratuitous beating of the magnitude that was received by Muhammad Akbar appellant, is entitled to use a lethal weapon like a revolver in order to save his life." In this respect, reliance may also have been placed on the admissions made by a number of the witnesses that Muhammad Akbar protested on the spot that he was returning from a cinema, and that he gave a warning to his pursuers before he actually fired. There is no question but that if the beating had continued, the consequence to Muhammad Akbar could well have been serious, for he had three contused wounds on his head besides many contusions on other parts of his body. Those who gave these blows were under the necessity in law of showing that they were justified in using that degree of force towards Muhammad Akbar to effectuate his capture. The learned Judges in coming to their conclusion have disbelieved, on the evidence before them, the plea of Muhammad Akbar that he did not have the revolver at all. The important question of law which arises in this case and which has not been the subject of treatment in the judgment of the High Court at all, is as to the extent of the right of a private person to use force to secure the arrest of another, in the B circumstances found by the learned Judges. Mr. Bashir, Assistant Advocate‑General appearing for the State relied for his argument on the terms of section 59 of the Criminal Procedure Code, with which he wished to read a provision in section 46 of the same Code. He contended further that on the evidence, there was shown to have been a direct connection between the alarm raised by Mehr Din and the subsequent alarm culminating finally in the pursuit and capture of the two accused persons. On the latter point, enough has been said above to show that at the critical time, namely, the time immediately following the escape of the intruders from Mehr Din's house, those who alleged that they saw the two accused escaping from, or from the vicinity of the house, did not in fact continue the alarm, from which the conclusion necessarily follows that when the alarm was taken up by others, it was at a time significantly later than the raising of the first alarm, and that it was then raised by persons who were not in a line of ,persons who had both seen the escaping men and continued the alarm. It must therefore be held in favour of the accused persons that those who raised the alarm against them at the final stage of the incident were outside a direct connection of sight and sound from the place where the lurking house trespass was allegedly committed. On these facts, it was difficult for the learned Assistant Advocate General to build up any justification for the use of force against the two men who were being pursued. It must be held in favour of the latter that they may well have been innocent persons, and the mere fact that one of them was in possession of a revolver was not by itself sufficient to sustain the belief that they were persons who had, just before, committed a cognizable and non‑bailable offence, such as lurking house trespass. It is desirable however that we should consider the legal aspect of the matter as well. Under section 59 of the Criminal Procedure Code, the right of a private person to make an arrest is confined to arresting "any person who in his view commits a non‑bailable and cognizable offence". This must be read in contrast to the power given to a Police Officer to arrest without a warrant. By section 54 of the Code, it is provided that a Police Officer may without warrant arrest any person against whom a reasonable suspicion exists of his having been concerned in a cognizable offence. The offence may be a bailable offence in this case ; in the case of arrest by a private person it must necessarily be in a non‑bailable offence. But the principal distinction lies in this that by virtue of his office, a Police Officer may act on reasonable suspicion, but a private person must act on the basis of something which has happened "in his view". In these circumstances, and having regard to the facts found in this case, no help can be obtained for the purpose of the State argument from the provision in section 46 that a private person may use "all means necessary to effect the arrest" where the person sought to be arrested "forcibly resists the endeavour to arrest him and attempts to evade the arrest". The right of a private person to make the arrest at all is confined by section 59 to the arrest of persons whom he actually sees committing a non‑bailable and cognizable offence. The learned Assistant Advocate‑General placed reliance on a decision of the Lahore High Court in the case of Muhammad Ishaq v. Crown (1) P L D 1954 Lah. 45 where it was said that the words "in his view" occurr ing in section 59, Cr. P. C. are to be "liberally interpreted". That was a case where two persons Allah Dad and Majhi attempted to arrest two others after they had heard a number of persons including a lambardar raising a hue and cry, and saying that the escaping persons had killed a man. Shots had been fired by the escaping persons, which had killed a man, and other shots had also been fired which injured Allah Dad and Majhi, and in respect of the latter injuries, a charge under section 307, P. P. C., had been held proved. The learned Judges of the High Court thought that in the circumstances, the offence could "very well be said to have been committed in the view of Allah Dad and Majhi, for it. is by the evidence of their own eyes and ears that they discerned its exitence," and they further opined that the lambardar and others who declared that they had seen the act of murder had a right to arrest the murderers and for that purpose, they could use Allah Dad and Majhi. As has been indicated above, the facts which we find in this case do not require that the application of section 59 of the Code in the present case should be examined in detail. The line of connection by sight and sound is not established even assuming that the view taken in the precedent case of Muhammad Ishaq is correct. As to that case, it is necessary to point out that the words "in his view" are of the most specific nature, and in their natural and proper meaning, they are confined to things actually seen. To extend these words to cover a case where action is taken on the basis of a reasonable ground to think that a person sought to be arrested has committed a non‑bailable and cognizable offence, may, in our view, be regarded as an attempt to legislate. The differential power expressly given by section 54 to a Police Officer to act on reasonable suspicion of things not actually seen by him, would by itself appear to stand in the way of any attempt to enlarge the power given to a private person under section

59. It is relevant in this connection to refer to the law on the subject as it stands in England. In paragraph 2810 of Archbold Criminal Pleading, Evidence and Practice, 34th edition, the power of a private person to make an arrest is expressed in the following terms :‑ "A private person is entitled to arrest and give into custody another person for having committed a felony, provided that there has been a felony actually committed, and such private person has reasonable ground to believe that the person whom he has given into custody has committed that felony." A reference is made to a judgment of Sir Rufus Issacs, L. C. J., in the case of Walters v. W. H. Smith & Sons Ltd. (1) P L D 1954 Lah. 45 where the Lord Chief Justice has outlined the history of the development of the law on this particular subject and has made reference to very early and learned writings on the subject. It is unnecessary to detail ‑that history in this judgment, but the fact of there being an ancient hist6ry behind the power given in England to a private citizen to arrest another on "reasonable ground" to believe that he has committed a felony, taken with the undoubted fact that the formulation of law as laid down in the Criminal Procedure Code, which we follow, was the work of English lawyers, who must be assumed to have sufficient acquaintance with the principles of the English law may well afford a basis for holding that the words "in his view" occurring in section 59 of our Code are intended by the Legislature to be restrictive in their effect, that is, of confining the action of a private citizen in relation to things actually seen by him. The point may well arise for final resolution in a proper case and we therefore restrict ourselves at present to saying that we must not be taken, by this judgment, either to approve or disapprove of the statement of law by the learned Judges of the High Court in the case of Muhammad Ishaq cited above. Accordingly, on a view of the fact as found in this case, we are satisfied that the High Court was right in allowing to Muhammad Akbar, the right of self‑defence by use of a firearm E to the point of killing a person, in the circumstances in which he was placed, and we accordingly dismiss the appeal by the State. As to the petition brought by Muhammad Akbar seeking special leave to appeal against his conviction for unlicensed possession of a revolver, after hearing Mr. Hamiduddin in support of the petition, we are satisfied that the finding of fact by the learned Judge in the High Court is based on good evidence, and no reason appears for interference with that decision within the special jurisdiction of this Court. Accordingly, this petition is also dismissed. K. B.A Appeal dismissed.