' TASSADUQ HUSSAIN JILLANI, J.---This appeal by leave of the Court is directed against the judgment dated 19-1-2006, vide which a learned Division Bench of the High Court dismissed appeal of Ghulam Farid .Appellant and affirmed the sentence of death awarded to him for the murder of Allah Bachaya and to pay compensation amount to the tune of Rs,50,000, in default whereof to undergo six months' R.I. Vide judgment dated 28-6-2001 passed by the Additional Sessions Judge, Jampur. Leave was granted by this Court to consider the question of sentence only. The brief facts of the case are given in the leave granting order dated 28-2-2005 which reads as under:--- "Muhammad Fayyaz, the complainant had disclosed the facts in F.I.R. No,763 dated 22-12-1999 of Police Station Jampur. The occurrence had taken place at about 2 O'clock at night. Muhammad Fayyaz, complainant and his brother Allah Bachaya, after offering Taravi prayers, slept in the house of Allah Bachaya. They woke up at 2-00 a.m., on the voice of barking dogs and found Mst. Pathani, wife of Allah Bachaya not on her cot. They became suspicious, came out to the Haveli and found Mst. Pathani standing with Ghulam Farid, the petitioner, holding a .12 bore shotgun. On seeing the complainant and his brother Allah Bachaya, the convict rushed out of the Haveli and decamped towards East.
' Upon their hue and cry, the neighbors named Subhan and Muhammad Afzal also got attracted to the scene and they all chased Ghulam Farid in order to apprehend him. When they reached the property of Lalloo Khan, Allah Bachaya was ahead by few paces followed by Muhammad Fayyaz, the complainant, Subhan and Muhammad Afzal when, in the meanwhile, the convict fired at Allah Bachaya which hit him on the neck, chest and chin. Allah Bachaya died on the spot. The complainant party made an effort to apprehend the assailment but he reloaded his gun and commanded them to stay back otherwise he would kill them. Motive is alleged to the effect that Ghulam Farid, for a long time, had developed illicit relations with Mst. Pathani, whom he intended to marry after killing Allah Bachaya.
' Learned counsel for the petitioner challenged the veracity of the ocular testimony but seriously challenged the capital sentence of death. According to him, even if the version in the F.I.R. Was to be taken as gospel truth, the convict had done nothing on the spot and was only standing with Mst.
Pathani. That after seeing the inmates of the house he had run away from the spot having committed no offence and thus was not required to be chased by the alleged witnesses. That the injury on the person of the deceased bears blackening indicating the fact that Allah Bachaya had drawn close to the assailant. That apprehending danger to his life or person, he might have acted in self-defence and thus, in the circumstances, the imposition of death sentence was not at all warranted. That it was not a case of trespass either because the convict, if at all, had gone to the house of Mst. Pathani with her consent. That even if he had committed some trespass, the matter had ended there and then when he had chosen to run away from the spot.
' We have examined the available record and the evidence in the light of submissions made before us and also in the light of case-law relied upon by the learned counsel as PLD 1963 SC 109, PLD 1966 SC 432 and PLD 1953 Lah.
207. We are of the considered view that the instant one is a case of grant of leave to consider the aforesaid questions. Leave is, therefore, granted to consider the question of sentence."
2. While seeking reduction of sentence, the learned counsel for the appellant submitted that even if the prosecution story is believed to be true, the appellant had not come to the house of Allah Bachaya deceased to kill him; that there was no element of trespass either as according to the prosecution's own showing, the appellant had come to the house of the deceased in sequel to illicit liaison with latter's wife and on her invitation; that irrespective of the moral dimension of appellant's conduct, this Court has to examine his conduct strictly within the parameters of the penal provisions under which he was tried; that it is in evidence that having seen the appellant running out of the house of Allah Bachaya deceased, the latter and the P. Ws chased him having armed themselves with sticks; that since the appellant had not committed any offence, the deceased had no right to chase and apprehend him; that the said effort to apprehend the appellant was not justified as under section 59 of the Cr.P.C., a private person can arrest an accused only when he has committed a cognizable offence in "his view", that since they were armed with sticks, the appellant had reasonable apprehension that he might be done to death or receive a grievous injury which circumstance gave him a lawful right of defence to ward off the attack under section 100 of P.P.C. That the single fire attributed to the appellant may be considered as a shot fired in his own defence and would not therefore constitute an offence. In support of the submissions made, he relied on the following precedent case-law:---
(i) Ghulam Ali v. Rasab and others PLD 1983 SC 135, (ii) Mst. Hamida Bano v. Ashiq Hussain and State PLD 1963 SC 109, (iii) Nawab v. The Crown PLD 1953 Lah. 207, (iv) The State v. Muhammad Akbar PLD 1966 SC 432, (v) Abdul Rahim alias Rehman v. The State 1986 PCr.LJ 2833.
3. The learned Deputy Prosecutor-General, on the other hand, defended the impugned judgment by submitting that the appellant had a definite motive to come to the house of deceased Allah Bachaya; that it is specifically alleged in the F.I.R. And the evidence led that in sequel to illicit liaison he wanted to murder Allah Bachaya and marry his wife Mst. Pathani thereafter; that he had, entered the house at a very odd time i,e, 2-00 a.m. Midnight and having trespassed into Allah Bachaya's house, was talking to his wife when the complainant and Muhammad Afzal P.W.8 saw him, he decamped with a view to avoid his apprehension; that Allah Bachaya along with the complainant wanted to apprehend him and gave him a chase; that within the view of the witnesses, the appellant fired at Allah Bachaya on his chest which proved fatal and he died at the spot. Repelling contention of learned counsel for appellant that since the latter had committed no offence, he had rightly resisted his apprehension and fired to ward off a bodily injury, the learned counsel submitted that the criminal intent of appellant is reflected from the timing of the occurrence, the fact that he, came armed to the house of Allah Bachaya, the fear that if apprehended he would be exposed and will have to face the process of law, he ran away and when he was about to be apprehended, he fired on the vital part of the body of appellant i,e, chest which provide fatal. He further submitted that the lack of bona fide of appellant's plea is evident from the fact that the plea of self-defence was neither raised before the learned trial Court when his statement was recorded under section 342, Cr.P.C. Nor in the trend of cross-examination to which the prosecution witnesses were subjected. He lastly submitted that the right of self-defence as provided in section 100 of the P.P.C. Is available only when there is apprehension of an offence being committed and is not available to someone who had come to the house of someone with a view to commit an offence and that too having armed himself with a deadly weapon like a .12 bore gun. In support of the submissions made, the learned counsel relied on the following:---
(i) Zulfiqar Ali. v. The State 2008 SCMR 796, (ii) Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427, (iii) Waris Khan v. The State '2001 SCMR 387, (iv) Khurram Malik v. The State PLD 2006 SC 354, (v) Khan alias Khani v. The State 2006 SCMR' 1744.
4. We have heard counsel for the parties, have gone through the evidence led and have given anxious consideration to the submissions made.
5. Appellant's learned counsel while pleading right of self-defense has not challenged the concurrent findings of fact with regard to the occurrence. According to him appellant's plea emanates from the given evidence and circumstances. The appellant did not raise this plea during trial either in his statement under section 342, Cr.P.C. Or at the time when the prosecution witnesses were subjected to cross-examination. There is no bar to raise such plea despite having not taken the said plea specifically during trial and the Court can infer the same from the evidence led during trial if the same is tenable. However, to justify such an inference in favour of the accused who stands convicted on a murder charge and sentenced to death, his conduct during the occurrence should fall within the parameters of right of private defence as codified in the Pakistan Penal Code. The relevant provisions are sections 96, 99, 100 and 106 of the Pakistan Penal Code.
Section 96 provides that, "nothing is an offence 'which is done in exercise of right of private defence". However, the said right is regulated by law and subject to certain restrictions. In this context, reference may be made to section 97 which reads as follows:--- "97. Right of private defence of the body and of property.--- Every person has a right, subject to the restrictions contained in 5.99, to defend--- First.--- His own body, and the body of any other person, against any offence affecting the human body; ' Secondly.--- The property, whether movable or immovable, of himself or any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
(2) Private defence of body.--- Accused would be within his right to defend his own body and that of any other person against any offence affecting human body. He would have right to defend his own body as well as that of his co-accused.
' In order to avail of the exception of self defence, it is essential to show:---
(i) that the occurrence was not due to the fault or act of accused;
(ii) that there was an immediate danger to life, in honest belief of accused;
(iii) that no reasonable course was available to accused to escape or avoid the necessity; and
(iv) that there was no intention to cause more harm than necessary for the purpose."
6. Section 99 specifically refers to instances where there is no right of private defence. Section 100 enumerates situations when the right of private defence of body extends to causing death and finally section 106 which stipulates a situation where in the face of a deadly assault the right of private defence extends even to "risk of harm to an innocent person".
7. After careful study of the afore-referred provisions and the precedent case-law laid down by superior Courts, following broad principles can be deduced to examine the plea of self defence raised in the light of evidence led:---
(i) The conduct of the accused during the whole transaction and his presence at the spot should be bona fide, faultless and devoid of elements of mens rea or actus reus.
(ii) There should be a danger to the life of the accused or of grievous bodily hurt or a genuine apprehension to that effect.
(iii) The situation is such that the accused is left with no option of a safe exit.
(iv) The force used by the accused is proportionate to the apprehended danger. In cases of murder, there should be credible evidence or circumstances to indicate that causing of death was necessary to save the life of the accused.
8. We have gone through the precedent case-law relied upon by appellant's learned counsel with reference to section 59 of Cr.P.C., sections 100 and 101, P.P.C. The facts in those judgments and the ratio laid down therein are distinguishable and the same, therefore, are of no avail to the appellant.
A brief comment would be pertinent.
9. In Mst. Hamida Bano v. Ashiq Hussain and State PLD 1963 SC 109, the facts in brief were that more than fifty persons were tried under sections 353/149, 148, 302 and 307 read with sections 148 and 149, P.P.C. For attacking the police party headed by a Sub-Inspector which had come to the village on the land of the accused party as it was reported that there was apprehension of breach of peace between two factions over possession of agricultural land. It was alleged that as soon as the deceased Sub-Inspector addressed the said gathering in a loud and threatening tone of voice. "why are you bent upon making trouble. I arrest you", the accused attacked the police party with Lathies and Barchhas and caused the death of the Sub-Inspector and injuries to other police officials. Five were convicted on charges of murder and attempt to murder under section 353, P.P.C.
Whereas 48 persons were acquitted by the trial Court. Those convicted were acquitted by the learned High Court. The appeal against acquittal filed by the sister of the deceased Sub-Inspector was allowed by this Court. The plea of self defence was repelled by this Court as the Court found that "but until they or any of them was placed in immediate danger of restraint at the minimum level necessary for an arrest, no question could arise in law of the exercise of the right of private defence against the Thanedar". While allowing the appeal, restoring the conviction of sentence of the three convicts under section 302(b), P.P.C. And sentence of transportation for life awarded to the convicts, the Court did not award capital punishment because it held that the liability was joint and "---it is clear that it was not part of the intention of the assembly when it was formed to kill the Thanedar or wound Sher Zaman".
10. In the State v. Muhammad Akbar PLD 1966 SC 432, the facts briefly stated were that two cases arose out of the same incident which took place the same night. The case of the prosecution was that in consequence of hearing of an alarm of "thief", "thief", a number of residents of the locality led by a police officer who was on patrol duty chased the alleged thieves, attempted to stop them whereupon one of the two namely Muhammad Akbar convict fired three shots with a revolver, two of which hit Qudrat Ullah deceased, a member of the patrolling party. The said alleged thief was overpowered. He was given severe beating and later was sent up for trial along with the co- accused Malla. The case of Muhammad Akbar before the trial Court was that he was returning from a visit of cinema in the city when an alarm was raised whereafter he was surrounded by the patrolling party and others; that the head of the patrolling party namely Latif Shah P.W.15 fired at him but the bullet struck Qudrat Ullah deceased. The trial Court convicted him under section 302 read with section 307, P.P.C. And his co-accused was convicted under section 323, P.P.C. In a separate trial, the co-accused was convicted under section 458, P.P.C. For breaking and entering the house of Mehar Din. The learned High Court acquitted him of the charge under section 458, P.P.C. But only maintained his conviction under section 19 of the Arms Act. The Court having considered the statement of Mehar Din from whose house Muhammad Akbar convict was allegedly seen coming out and was given a chase came to the conclusion that the evidence was inadequate to identify the intruders and that none of the witnesses had stated that they had seen the culprits emerging from the house of the said Mehar Din. In those circumstances, the learned Judges of the High Court found that a person who was trying to capture two men was not justified to apprehend them and cause 21 injuries on the person of Muhammad Akbar convict as he had not committed a cognizable offence in their view. While acquitting the said Muhammad Akbar, the High Court observed 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." This Court did not interfere with the afore- referred finding of acquittal as according to it:--- "... The High Court was right in allowing to Muhammad Akbar, the right of self-defence by use of a firearm to the point of killing a person, in the circumstances in which he was placed, and we accordingly dismiss the appeal by the State."
11. In Abdul Rehim alias Rehman v. The State 1986 PCr.LJ 2833, a Division Bench of the Lahore High Court converted the conviction of the appellant before it from section 302, P.P.C. Sentence of death to section 304 Part-I, P.P.C. And sentenced him to 10 years' R.I. As the deceased who was given a single blow by the convict at a time when the latter was caught hold by former and he had a right of private defence under section 101, P.P.C. Because apprehending the convict was not justified by the said deceased as the deceased had not seen the convict committing any offence in his view.
12. In Nawab v. The Crown PLD 1953 Lah. 207, the Court found that the deceased (Buddu Khan) tried to arrest the accused, which was not justified as the latter had not committed any cognizable offence to warrant his apprehension by a private person in terms of section 59 of the Criminal Procedure Code. The Court found that the accused had a right of self-defence, but he exceeded it and, therefore, was guilty of offence of culpable homicide not amounting to murder in terms of section 304 Part-I of the Pakistan Penal Code.
13. A careful examination of evidence in the instant appeal indicates that there was no occasion for appellant to cause the murder of Allah Bachaya and further that his conduct during the whole transaction commencing from his visiting Allah Bachaya's house for an illicit purpose to murder reflected both mens rea and actus reus. The appellant was resident of a different locality; it is in evidence that his relations were strained with Allah Bachaya deceased on account of the suspicion that he had illicit liaison with latter's wife Mst. Pathani; that he wanted to eliminate him to marry her; that he came armed with a gun and committed house trespass into the house of Allah Bachaya deceased at an odd time i,e, 2-00 a.m.; that finding his wife missing, he woke up his brother P.W.7 Muhammad Fayyaz/complainant who was asleep in the adjoining room; thereafter both of them saw the appellant standing with the wife of Allah Bachaya at that time, they raised alarm which attracted the neighbors, the appellant tried to flee, he was chased and after a distance the appellant fired at Allah Bachaya on his chest which proved fatal. He carried the gun with him so that if any one tried to come in his way, he would be threatened with the same or even done to death. The attempt of Allah Bachaya and P.W.7 to chase and apprehend him was natural and lawful. There is nothing in F.I.R. Or in examination in chief of complainant P.W.7 and P.W.8 Muhammad Afzal to infer that Allah Bachaya deceased while chasing carried any firearm or even a stick. Only during cross-examination, P.W.7 stated that Allah Bachaya while chasing picked up a stick lying in the Haveli. But there is no allegation that he attempted to attack the appellant or the latter received any injury. In answer to a question P.W.8 candidly stated that, "none of us tried to shower any blow to the accused". Thus there was no imminent threat of attack or bodily injury. The argument of appellant's learned counsel that Allah Bachaya deceased had no right to apprehend the appellant, as according to him, the accused had not committed any cognizable offence and that notwithstanding the moral aspect of appellant's conduct, this Court has to examine the conduct only if it falls within the mischief clause of penal provisions is not tenable in facts and circumstances of this case. The appellant having armed himself with a gun committed house trespass into his house in order to commit adultery and if discovered by one to use gun. In such circumstances, Allah Bachaya and others were within their right to arrest the appellant in terms of section 59 of Cr.P.C. Which, inter alia, provides as follows:--- "59. Arrest by private persons and procedure on such arrest.--- [(1) Any private person may arrest any person who in his view commits a non-bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer, or, in absence of a police officer, take such person or cause him to be taken in custody to the nearest police station]" .
14. In Muhammad Khan Abbas Khan v. Emperor AIR 1941 Lah. 81, the accused went to the house of deceased in sequel to illicit liaison and with the intent of committing an offence and using his dagger if discovered. He was discovered and when the inmate of the house tried to apprehend him, the accused gave him dagger blow which caused his death. He was convicted under section 302 and sentenced to death which was maintained by the Court of appeal. The facts narrated are as follows:-- "On the night of 30th December, 1938, the accused Muhammad Khan came to the enclosure of the two deceased men in order to meet Mt. Aishan. He was waiting in a Chhappar. One from the family of Abdullah went out to ease himself and saw a man lurking in this Chhappar. He gave an alarm and several members of their family, including the two deceased, ran out of their house. They recognized Muhammad Khan, Muhammad Khan ran away and was chased by the two deceased and some of their relatives. Muhammad Khan ran a short distance and entered into the pasar of Mian Ahmad. Abdullah, the father of Gul Muhammad, was the first to get close to Muhammad Khan and endeavored to catch hold of him. Muhammad Khan immediately produced a dagger and stabbed Abdullah in the chest. Abdullah fell down. Thereupon Gul Muhammad Abdullah's son, seized Muhammad Khan and was also stabbed with this dagger by Muhammad Khan in the stomach. Both these men died shortly afterwards."
15. The Court in the afore-referred circumstances held as follows:--- "We are satisfied from the facts of this case that Muhammad Khan went armed to this adventure with every intention of using his dagger if discovered. Under these circumstances when that which Muhammad Khan anticipated actually occurred, and Muhammad Khan in pursuance of what we consider to be a preconceived intention used that knife, we do not think that under any circumstances can it be said that he had the right of self defence. The plea of self defence having, therefore, in our opinion hopelessly broken down, the result is that Muhammad Khan is guilty of murder. With regard to the sentence, the facts and circumstances described above make it clear that the sentence of death in this case is thoroughly justified. We, therefore, confirm the sentence of death and dismiss the appeal."
16. In Inayat Masih v. The State 1980 SCMR 937, the accused in his statement under section 342, Cr.P.C. Had taken a definite plea to have acted in self defence in giving 2/3 blows to the deceased when he tried to attack him but the same was not accepted as no direct or circumstantial evidence was supportive of the said plea. He was awarded death sentence by the trial Court, was maintained by the High Court and even by this Court. While dismissing the appeal, the Court rejected prayer for lesser sentence by holding that:- " the fact that he had caused to the deceased two injuries in the region of his chest as a result of which his heart was punctured would go a long way to support this conclusion. In these circumstances, the death sentence awarded to him by the trial Court, as well as the High Court was the only legal and proper sentence, which calls for no interference by this Court."
17. In Faqir Muhammad alias Faqir Ali v. The State 1987 SCMR 293, the accused convict raised a similar plea and that too during trial when examined under section 342, Cr.P.C. And stated that the complainant party had suspicion that he had illicit relations with Mst. Safia Bibi; that in the month of Ramzan at night time when he was passing through near the house of the complainant, he was attacked by the complainant party with Lathies and Knives; that he received 18 injuries; that during the fight, he snatched one knife from one of the assailants and caused injuries to the deceased in self defence. The said plea was repelled by the trial Court, by the High Court and even by this Court.
He was convicted under section 302(b), P.P.C. And sentenced to death. His plea for lesser sentence was not granted on account of his conduct and this Court while dismissing the petition observed as follows : "As the petitioner himself committed trespass into the house of Wazir Ali to commit an act of adultery with Safia Bibi wife of Wazir Ali, he cannot plead self defence against his own unlawful act.
The plea for lenient sentence is also in vain. He had stealthily come to the house at night to bring dishonor to the family by having intercourse with one of its female members, and if he was caught, he had no reason to cause fatal injuries to the deceased as even under the law the deceased was entitled to apprehend him. His act rather aggravated the offence."
18. Incidentally, in the instant case as well, it was the month of Ramzan; it was night time occurrence; accused had committed house trespass in sequel to illicit liaison; he was found standing with Mst. Pathani (Allah Bachaya deceased's wife) and when the latter and P. Ws chased him he fired the fatal shot.
19. When an accused raises a plea of self defence for causing hurt or death in the face of apprehended arrest or attack from the victim, the entire episode has to be considered as one transaction. Anyone who either sees the person committing such an offence or finds him running away immediately thereafter would be entitled to arrest the said person under the mandate of section 59 of the Cr.P.C. If such a person causes hurt or death with a view to resist such apprehension, he cannot plead to have acted in self defence. To lay down otherwise would not only give licence to criminals but would also discourage public spirit to act in aid of law in apprehending the accused which spirit even otherwise, we may add with regret is on decline. The right of self defence cannot justifiably be claimed by such an offender.
20. For what has been discussed above, we are of the view that the conduct of the appellant did not fall within the exceptions of sections 96, 97 and 100 of P.P.C. And he had no right to cause the death of Allah Bachaya deceased and he has rightly been convicted and sentenced to H death. No case for mitigation of sentence is made out either. Resultantly, the appeal having no merit is dismissed.