P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

Muhammad Ishaq, Muhammad Tauheed, son of Muhammad Ishaq, Nur Muhammad, Ata Muhammad, Fateh Muhammad and Ghafoor were tried under sections 302/149, 323/149, 429/149 and 148 of the Pakistan Penal Code for having, on the 16th of March 1959, formed themselves into an unlawful assembly and in the prosecution of the common object of that unlawful assembly to have caused the death of Muhammad Aslam, to have caused injuries to Shah Muhammad and to have caused injuries to the two bullocks of Muhammad Aslam, with the result that while the other three were acquitted, Muhammad Ishaq, Muhammad Tauheed and Nur Muhammad were held to have participated in the occurrence. Muhammad Ishaq was found guilty of an offence of murder as well as of an offence of mischief made punishable under section 426 of the Pakistan Penal Code. For the first offence he was sentenced to death and for the second to two months' rigorous imprison ment, it being directed by Mr. Muhammad Saleem, Sessions Judge, Bahawalpur, Camp Babawalnagar, who passed the sentences, that the sentence of imprisonment shall run con currently with the sentence of Muhammad Ishaq in case the sentence of death is not confirmed by this Court. Muhammad Tauheed and Nur Muhammad were sentenced to three months' rigorous imprisonment each under section 323 of the Pakistan Penal Code. Muhammad Tauheed and Nur Muhammad have not appealed, but Muhammad Ishaq has questioned his con viction by this appeal, while the learned trial Judge has referred the case to this Court for confirmation of the sentence of death imposed on Muhammad Ishaq. The appeal and the reference will be disposed of by this order.

2. The prosecution case against the appellant was that in order to turn out Shah Muhammad, the father of Muhammad Aslam, from a piece of land he resorted to violence because the person in occupation of the land would not leave it. It was said that on the morning of the occurrence when Muhammad Aslam was ploughing the field about which there had been a dispute between the parties, Muhammad Ishaq and his five co‑accused called upon him to desist from ploughing the land and on his refusal to do so Muhammad Ishaq opened fire. Muhammad Aslam succumbed to his injuries, while the two bullocks which too received injuries survived. Muhammad Tauheed and Nur Muhammad who were convicted under section 323 of the Pakistan Penal Code caused injuries with blunt weapons to Shah Muhammad.

3. The first information report about the occurrence was made the same day at Police Station Haroonabad by Shah Muhammad, father of Muhammad Aslam, at about noon. In this report Shah Muhammad gave the details of the occurrence and said that besides himself the occurrence was witnessed by his wife, Mst. Noor Bibi, Jan Muhammad and Muhammad Bashir.

4. At the trial the eye‑witness account of the occurrence was given by Shah Muhammad (P. W. 6), his wife Mst. Noor Bibi (P. W. 7), Muhammad Bashir (P. W. 8) and Jan Muhammad (P. W. 9). All these witnesses said that Muhammad Ishaq had fired with his gun and had caused injuries to two bullocks of Muhammad Aslam and to Muhammad Aslam himself, as a result of which Muhammad Aslam had breathed his last.

5. When questioned in detail by the committing Magistrate to explain the circumstances appearing against him in the prosecution evidence, Muhammad Ishaq denied that he was present at the scene of the occurrence or had fired at Muhammad Aslam. His version was that he had been falsely implicated because he had an illicit intimacy with the mother of Muhammad Bashir (P. W. 8). The learned trial Judge did not make a detailed examination of any of the six accused, including the appellant, but asked each of them only the following three questions :‑ (1) You have heard your statement dated the 29th of September 1959 before the committing Magistrate. Did you make the statement ? (2) Do you want to add anything ? (3) Do you want to adduce any defence evidence ? To the second of the above questions the reply of Muhammad Ishaq appellant was that the land which was being ploughed by Muhammad Aslam on the day of the occurrence had been handed over to him by Muhammad Aslam and his father Shah Muhammad a few days earlier on receipt of a sum of Rs. 300, but when he went there on the day of the occurrence, he found that Muhammad Aslam was ploughing the land and Shah Muhammad was also on the land. He asked Shah Muhammad why he had taken possession of the land again though Rs. 300 had been received by him, upon which Shah Muhammad started abusing him and threw clods of earth at him. This made him (the appellant) fire his gun in the air. Thereupon Muhammad Aslam began to abuse him and asked him why he was firing in the air and did not stop the bullocks. On hearing this challenge, he fired two shots at the bullocks and Muhammad Aslam continued abusing him. He added that he did not know whether any of the shots fired by him had hit the deceased. Four witnesses were produced in defence. The first two, namely, Subedar Imdad Khan (D. W. 1) and Abdur Rehman (D. W. 2) supported the plea of the appellant that he had paid Rs. 300 to Shah Muhammad who had promised to give possession of the piece of land in his possession to the appellant. Asghar Ali (D. W. 3) and Abdus Sattar (D. W. 4) supported the plea of the appellant in the Court of the learned trial Judge that he had fired m the air whereupon Muhammad Aslam asked the appellant why he was firing in the air when his son‑in‑law (meaning himself) was before him and upon this Muhammad Ishaq fired at the bullocks.

6. Before taking up the case on merits, I consider it necessary to determine whether there was any defect in the trial by reason of the fact that the learned trial Judge did not ask the accused persons, including the appellant, detailed questions in order to enable them to explain the circumstances appearing in the prosecution evidence against them, and merely asked them whether their statements before the committing Magistrate which had been read over to them were correct and whether they wanted to add to those statements. Ordinarily this question would not have detained me, but recently in Fazla and others v. The State (P L D 1960 Lah. 547) a Division Bench of this Court consisting of Abdul Aziz Khan and A. R. Khan, JJ. took the view that if a Sessions Judge examined the accused in the manner in which the Sessions Judge examined the accused persons in the present case, he committed an illegality and retrial from the stage when the examination of the accused persons before the trial Court took place was necessary. The same Bench took precisely the same view in Criminal Appeal No. 741 of 1959 which they disposed of on the 2nd of March 1900. The judgment in Fazla and others v. The State was written by Abdul Aziz Khan, J., with whom A. R. Khan, J., expressed concurrence. In the judgment reference was made to twenty‑six judicial decisions, of which twenty‑two related to section 342 of the Code of Criminal Procedure. From these twenty‑two decisions extensive quotations were incorporated in the judgment of Abdul Aziz Khan and A. R. Khan, JJ. Sheikh Muhammad Shafi, the learned counsel for the appellant, did not place reliance on the judgment and in fact said that it did not appear to have laid down the law correctly, but Mr. Fazale Ghani, Advocate who appeared for the State, said that what had been laid down in the judgment of Abdul Aziz Khan and A. R. Khan, JJ. in Fazla and others v. The State was the correct exposition of law. I have carefully gone through the relevant provisions of the law and the decisions referred to in the judgment of Abdul Aziz Khan and A. R. Khan, JJ., and for the reasons to be recorded in Bashir Ahmad and others v. The State (P L D 1960 Lah. 687) (Criminal Appeal No. 713 of 1959 and Murder Reference No. 223 of 1959) in which precisely the same question arose, I have arrived at the conclusion that the view taken by the learned Judges could not be accepted. In this judgment I will not detail my reasons for that view, but will only say that the error which the learned trial Judge committed because he should have himself followed the provisions of section 342 of the Code of Criminal Procedure was an irregularity which section 537 of the Code of Criminal Procedure could cure. Indeed from almost all the twenty‑two judgments relied upon by Abdul Aziz Khan and A. R. Khan, JJ. it would appear that the examination of the type that was made in the present case by the learned Sessions Judge was an irregularity which should not be taken notice of by the appellate Court unless it comes to the conclusion that the error had resulted in a miscarriage of justice. I might, however, add that this kind of examination is not in accordance with section 342 of the Code of Criminal Procedure because it is the duty of the trial Judge in a case, which has come before him on an order of commitment by a Magistrate, to ask detailed questions from the accused person to enable him to explain the circumstances appearing in the prosecution evidence against him in spite of the fact that the committing Magistrate had asked such questions from the accused. Mr. Fazle Ghani contented himself with arguing that the questions which were asked in the present case cannot be said to be following the mandatory provisions of section 342 of the Code of Criminal Procedure. The mere fact, however, that the pro visions of section 342 of the Code of Criminal Procedure were man datory in nature does not mean that omission to follow them cannot fall under section 537 of the Code of Criminal Procedure. I have expressed the view in an another (case) Ibrahim and another v. The State (P L R 1959 (2) 689 : P L D 1959 Lah. 715) that section 537 of the Code of Criminal Procedure was intended to cure errors which were committed by reason of not following the mandatory provisions of the Code, and nothing has been said during arguments in this case to make me change that view. If a provision of the Code of Criminal Procedure is no mandatory, not following it could not be held to be an error or omission. In the present case one finds that the appellant made a detailed statement in the Court of Session and materially changed the statement which he had made in the Court of the Committing Magistrate. The fact, therefore, that the learned Sessions Judge had committed an irregularity by his resorting to a sketchy examination of the accused cannot be availed of either by the accused or by the State. At any rate, if the appellant does not complain that he was prejudiced by reason of the error committed by the learned trial Judge, the State cannot take the position that the accused person was prejudiced. But if the error was an incurable irregularity, which as I have shown it was not, retrial would have had to be ordered notwithstanding that no prejudice to the accused person was proved. I would, hold, therefore, that the trial suffered from no defect by reason of the omission of the learned trial Judge to make a detailed examination 1 of the accused persons with a view to offering them an opportunity to explain the circumstances appearing in the prosecution evidence against them.

7. Coming now to the merits of the case, one finds that the depositions of Shah Muhammad (P. W. 6), Mst. Noor Bibi (P. W. 7), Muhammad Bashir (P. W. 8) and Jan Muhammad (P. W. 9) received a good deal of support not only from the statement made by the appellant before the learned trial Judge but also from the depositions of two of his four defence witnesses, namely, Asghar Ali, (D. W. 3) and Abdus Sattar (D. W. 4). In this state of evidence it can hardly be doubted that Muhammad Ishaq had fired his gun and the result was that two bullocks of Muhammad Aslam and Muhammad Aslam himself received gunshot injuries which cost Muhammad Aslam his life. The appellant pleaded that he had first fired in the air with the object evidently of showing that he wanted to scare Muhammad Aslam away, but the evidence on the record is not sufficient to prove this assertion. I would hold, therefore that the prosecution case that the appellant had fired at Muhammad Aslam deceased and his two bullocks stands established beyond all reasonable doubt.

8. This brings me to the question of what offence or offences are established against the appellant. Learned counsel for the appellant said that Muhammad Ishaq acted in the exercise of the right of private defence of property and at worst could be held to have exceeded that right and, therefore, the offence, if any, with regard to the death of Muhammad Aslam would not amount to murder. The learned counsel for the State urged that there was no reliable evidence that Shah Muhammad and Muhammad Aslam had given up the piece of land which was being ploughed by Muhammad Aslam on the day of the occurrence and, therefore, no question of the existence of a right of private defence arose. I cannot accept the argu ment of the learned counsel for the State because Mst. Noor Bibi (P. W. 7) stated in the Court of the committing Magistrate that four or five days before the occurrence Nur Muhammad and Ghafoor had ploughed the land in question. These two persons were the tenants of Muhammad Ishaq appellant and, therefore, the statement which Mst. Noor Bibi made in the Court of the committing Magistrate from which she resiled in the Court of the learned trial Judge coupled with the statements of Subedar Imdad Khan (D. W. 1) and Abdur Rahman (D. W. 2) would make it appear that Shah Muhammad and his son Muhammad Aslam had given up possession of the land on receipt of Rs.

300. That being so, what Muhammad Aslam was doing on the day of the occurrence amounted to trespass, and the question, therefore, arises whether or not Muhammad Ishaq appellant could be held to have acted in the exercise of the right of private defence.

9. The offence which Muhammad Aslam could be held to be committing was criminal trespass, which is a very minor offence, and, as rightly conceded by the learned counsel for the appellant, section 104 of the Pakistan Penal Code, which had application, did not allow Muhammad Ishaq to voluntarily cause the death of the trespasser, specially as, it being broad daylight, no one could have entertained apprehension that if immediate steps were not taken serious danger to human life would ensue. I am not prepared to accept the contention of the learned counsel for the appellant that if an occasion for the exercise of a right of private defence arises and the person to whom the right has accrued uses force he will, at worst, be guilty of exceeding the right of the private defence, however grossly disproportionate to the necessity of the exercise of that right the force used might be. Section 99 of the Pakistan Penal Code lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence and section 104 of the Pakistan Penal Code makes it clear that the exercise of right of private defence against offences mentioned in that section is circumscribed by the limits mentioned in section 99 of the Code. If, therefore, a person intentionally does an act which he knows will result in much more serious harm than the harm which the law allows him to cause in the exercise of the right of private defence, it could not be said that he was acting in the exercise of the right of private defence but happened to exceed that right. This may be explained by an illustration. A boy, aged about 13, is seen plucking fruit from a man's garden. That the plucking of the fruit would amount to theft can hardly be doubted and the law gives the owner of the fruit a right of private defence. But if in order to prevent the boy from plucking fruit the owner were to shoot at the boy, it cannot be reasonably claimed for him that he was acting in the exercise of a right of private defence of property and had merely happened to exceed it. What he did was far beyond what the law permitted him to do and as from the beginning his intention was to do what the law did not allow him to do, he could not be said to have acted in the exercise of the right of private defence and to have happened to merely exceed it. Examples of this type could be multiplied manifold and I am clear in my mind that if the Court comes to the conclusion that what an accused person intended to do, could not be considered to be an act done for the prevention of harm, it cannot hold it to be a case of exceeding the right of private defence and should hold it to be al case of committing the offence which was committed by reason' of the act done. I am not to be understood to be laying down that a person who has been compelled to use force in the exercise of a right of private defence must meticulously measure his blows to avoid the risk of being held to have intentionally committed an offence because what I have said in the earlier part of this paragraph will be applicable to those cases in which the harm intended to be caused is known, or ought to have been known, to be extremely more than the law permits to be caused, and cases in which though there was no intention to cause more harm than it was necessary to cause for the purposes of private defence more harm happens to be caused stand on an entirely different footing.

10. Keeping in view the above principles relating to the right of private defence, I proceed to consider whether what was done in the present case could be considered to have been done merely with the object of preventing by means allowed by law a harm that was being done by Muhammad Aslam deceased. I have indicated above that the only offence which Muhammad Aslam could, in the circumstances, be held to have been com mitting was one of criminal trespass which is punishable by section 447 of the Pakistan Penal Code, the punishment prescribed being imprisonment of either description for a term which may extend to three months or fine which may extend to five hundred rupees or both. Can anyone even for a moment believe that a person who deliberately shoots at a human being was actuated by a desire to prevent an offence the maxim punishment for which was three months' rigorous imprisonment ? If the act done were not as dangerous as shooting at a human being and in the course of that act the person who claimed to have acted in the exercise of the right of private defence had happened to exceed the limits prescribed by law for the exercise of that right, it could perhaps have been held that he had exceeded the right of private defence, but when the act intended to be don would itself amount to a gross excess of what could be don in the exercise of the right of private defence, no such argument is available to the accused. The cases of the first type would be of a person trying to prevent criminal trespass by giving a blow with a stick to the trespasser and in the heat of moment to deal more blows than were necessary. In such a case unless it can be established by evidence, oral or circumstantial, that the intention of the assailant from the beginning was to cause the death of the victim, the case may be one of exceeding the right of private defence. But the same cannot be said of a case in which in order to prevent the very non‑serious offence of criminal trespass a person shoots at the trespasser and kills him because the person who shoots will be presumed to know that the natural consequences of his act would be the death of the person at whom he was shooting and the law does not allow that to be done in order to prevent an offence of criminal trespass. I would, therefore, hold that in spite of the fact that Muhammad Aslam was committing criminal trespass on the land which he was ploughing, the act of shooting at him by Muhammad Ishaq could not be said to have been done in the exercise of the right of private defence and, therefore, Muhammad Ishaq appellant would be liable for his act to the fullest extent.

11. Dr. Z. A. Khan, Medical Officer, Haroonabad, who performed the post‑mortem examination on the dead body of Muhammad Aslam on the 16th of March 1959 found the following injuries on the body :‑ (1) A gunshot wound, 1/6" in diameter, 1/4" area around was charred. The wound was situated in the fourth interspace, " lateral to sternum. (2) A gunshot wound of same dimensions in the sixth inter space, 2" below the nipple. (3) A gunshot wound same side in the sixth interspace in the said exillary line. (4) A gunshot wound, " x ", on the post‑exillary line, left side of the chest. (5) Two gunshot wounds on the back of right hand and middle finger. (6) Two gunshot wounds on the right groin.

7. Two linear scars of gunshot wound on the inner side of right forearm. The doctor deposed that on internal examination he found that the peritoneal cavity was full of blood, upper area of the liver was ruptured as a result of gunshot wounds, fifth right rib was fractured, right fluera was punctured, the right lung was pierced at three places and the left lung at one place and the right vent ricle of the heart was pierced at one place. According to the doctor the cause of death was injuries to the vital organs. Now, the act of Muhammad Ishaq appellant in firing at Muhammad Aslam and his bullocks resulted in the death of Muhammad Aslam and receipt of injuries by his bullocks. A person who shoots at another and kills him can safely be presumed to have intended the death of the victim and his offence clearly falls under section 302 of the Pakistan Penal Code. In the present case the evidence of the doctor who performed the post‑mortem examination proves that vital parts of the body of the victim received gunshot injuries with the result that the victim lost his life. I would, therefore, uphold the conviction of the appellant under section 302 of the Pakistan Penal Code. As regards the injuries to the bullocks the offence was rightly held by the learned trial Judge to fall under section 426 of the Pakistan Penal Code and the conviction of the appellant under that section is also upheld.

12. This brings me to the question of sentence. Ordinarily a person who kills another by shooting at him should pay the extreme but normal penalty prescribed by law for an offence of murder, but as in the present case the deceased was not entirely blamesless, I would hold that the exaction of the extreme penalty from the appellant is not necessary. Consequently, I would reduce the sentence of the appellant under section 302 of G the Pakistan Penal Code to transportation for life and would not confirm the sentence of death. The sentence under section 426 of the Pakistan Penal Code which is by no means severe will stand and will, as directed by the learned trial Judge, run concurrently with the sentence under section 362 of the Pakistan Penal Code. The sentence of death is not confirmed. SAJJAD AHMAD, J.‑

I agree. A. H. Order accordingly.