ATAULLAH SAJJAD, J.---Bashir Ahmad, aged about 25/26 years, a resident of Seetal Mari, Police Station Saddar Multan has been convicted by Mr. Bashir Ahmad, Additional Sessions Judge, Muzaffargarh under section 302 of the Pakistan Penal Code for the murder of Abdul Halim and under section 307 of the Pakistan Penal Code for making a murderous assault on Qutab Din (P. W.
8). Fie was sentenced to death on the first Count and to seven years' rigorous imprisonment on the second. The sentence of imprisonment under section 307, P. P. C. Was to take effect if the sentence of death was not confirmed.
The convict has appealed. There is also murder reference No. 236 of 1968 before us in this connection. This judgment will dispose of both the matters.
2. The occurrence took place on 5th of July 1967, at chhoti digarwela in Ward No. 4 of Mauza Shehr Sultan, District Muzaffargarb. The appellant was at that time accompanied by Mst. Anwari wife of Muhammad Sharif who has appeared at the trial as P. W. 6 Muhammad Hanif (P. W. 7) was proceeding along the bus stand in Shehr Sultan Town when be saw the appellant and Mst. Anwari with Bashir, Siddiq and Qutub Din aliav Qutba (P. W. 8). Bashir called Muhammad Hanif and told him that the man and the woman were persons of suspicious character. The appellant, when questioned, told these persons that the woman was his wife. Muhammad Hanif asked the appellant whether he knew anybody in Shehr Sultan Town. The appellant told him that he was going to meet Qazi Jamil in the Town. Muhammad Hanif then asked his companions to let the couple go. The appellant and Mst. Anwari instead of taking the route to the Town, went towards the graveyard and on reaching near a tree turned back to look at the persons who had detained them.
The suspicion of these persons was further aroused for the reason that the appellant and the woman instead of going on the straight road to the Town had entered the graveyard. They followed them. On reaching near the appellant, they asked him to accompany them to the Police Station as they suspected his character. On this, the appellant took out a revolver from his left dub and fired at Siddiq. He missed the aim. He fired another shot which hit Qutab Din (P. W. 8) on the left flank and the wrist. Qutab Din fell down. The appellant then took to his heels but was followed by Muhammad Hanif (P. W. 7) who was raising alarm all along. Rashid (P. W. 9) and his nephew Abdul Halim deceased were present in their field at Chah Basuwala. They came forward to apprehend the appellant who fired at them. The shot hit Abdul Halim near the throat. He fell down. The appellant continued running and crossed the creek of River Chenab which fell in his way. Two persons, namely, Jindwadda and Ghulam Muhammad (P. Ws. 10 and 11 respectively) were standing on the other side of the creek waiting for a boat. They caught hold of the appellant and brought him back to the other side in a boat.
3. Abdul Halim deceased was carried on a cot to the place where Qutab Din was lying injured. The two injured persons were then carried to the Health Centre at Shehr Sultan. Dr. Ghulam Ahmad (P.
W. 2) gave them first-aid. He also wrote two ruqqas Exhs. P. R. And P. S. To the S. H. O. Shehr Sultan informing him of the admission of the two injured persons in the hospital. A query was made by the S. H. O. Vide Exh. P. E. Whether the two injured persons were in a fit state to make statements. The doctor gave an opinion on 5th of July 1967, at 9-40 p.m. That they were in a position to make statements. It appears from the statement of the Investigating Officer that he recorded the statements of these two persons under section 161, Cr. P. C. But no action was taken to have their dying declara--tions recorded. Nor was the statement of Abdul Halim recorded under section 161, Cr. P. C. Used as a dying declaration by the prosecution.
4. The injured persons after being given the first-aid were sent to the District Headquarters Hospital, Muzaffargarh, where Abdul Halim died on 7th of July 1967, at about 12-45 noon.
5. Muhammad Hanif, Bashir and Siddiq took the accused to the police station and produced him before the Sub-Inspector. The first information report Exh. P. A. Was taken down to the dictation of Muhammad Hanif P. W. By Rana Abdul Majid (P. W. 12) S. H. O. Police Station Shehr Sultan. There was no recovery of the revolver from the appellant. The case of the prosecution, as disclosed in the first information report was, that the appellant had thrown away the pistol somewhere in the creek of the river. The medical evidence, however, showed that Abdul Halim died as a result of a gun-shot wound on the front and the lower portion of the neck on the left side just above the inner end of the clavicle. On dissection, the under tissues were contused, trachea and oesophagus had got holes J" x J-- each and there was also a hole in the first dorsal vertebra. The spinal cord was pierced and bullet was found stuck in it. According to the medical opinion, Qutab Din had also received two gun-shot wounds one on his chest and the other on the left forearm. This second wound had also a wound of exist.
6. At the trial, Mst. Anwari (P. W. 6), Muhammad Hanif (P. W. 7) and Qutab Din (P. W. 8) appeared to prove the first incident as a result of which Qutab had been attacked by the appellant with a revolver. Rashid Ahmad (P. W. 9) and Muhammad Hanif (P. W. 7) deposed to the circumstances in which Abdul Halim was fatally wounded. Jindwadda (P. W. 10) and Ghulam Muhammad (P. W. 11) stated the circumstances under which they had arrested the appellant. Mst. Anwari stated that the appellant's sister was married to one Qurban who lived at the same well with Mst. Anwari and her husband. Actually, they had a common courtyard. Bashir appellant was staying with his sister for about one month before the occurrence and during this period he persuaded her by blandishments and inducements to leave the house of her husband which she did. She further stated that on the day of occurrence at about Asar prayers time they reached the turn of the road of Shehr Sultan when they were stopped by Muhammad Hanif, Siddiq and Qutab Din. These three persons made enquiries from them as to what relationship they had, and the appellant told them that Mst. Anwari was his wife. The appellant also told them that he was going to Qazi Jamil in Shehr Sultan Town. She further stated that they were in the first instance let off but then pursued to the graveyard where on the demand of these persons to accompany them to the Police Station, the appellant took out a revolver from his dub and first fired at Siddiq ineffectively and then at Qutab Din P. W. She also stated that after injuring Qutab Din the appellant took to his heels and was followed by Hanif who raised an alarm. She denied the suggestion that Halim and Qutab Din had been injured at the same place and that the revolver was actually in the hand of Halim and in the struggle that ensued between Halim and the appellant, the pistol went off accidentally and hit Halim and Qutab Din.
Muhammad Hanif (P. W. 7) gave narration of the facts stated above till the time he went to the police station to lodge the report. The gist of the evidence of the other P. Ws. Has already been reproduced above.
7. The appellant, while making his statement at the trial, admitted that he was accompanied by Mst. Anwari. He stated that Halim, Bashir and Qutab Din assaulted him and gave him slaps, and Bashir and Qutab Din forcibly took away Mst. Anwari down the road while he continued to stand there. He asserted that Halim deceased had the pistol and in the scuffle that ensued between himself and Halim, the pistol went off and Halim and Qutab Din were injured. He further stated that after these two persons' were injured he started to Shehr Sultan Town but was intercepted by Bashir, Siddiq and Hanif along with four or five persons who forced him to accompany them to the police station.
8. The learned counsel submitted that the first information report in the case was delayed and the failure of the prosecution to produce Bashir and Siddiq has detracted from the strength of the prosecution story.
9. We do not agree that the F. I. R. Was really delayed. The occurrence took place at about chotti digarwela. The appellant had run away after injuring Qutab Din. He was pursued and after fatally injuring Halim be had crossed the creek of the River Chenab and was brought back by a boat. The two injured persons were then put on cots and carried to the Health Centre. All this must have taken some time. The time spent, therefore, was not disproportionate to the requirement of the situation. Moreover, we do not find that the prosecution would have gained in this case by delay.
The appellant is the sole assailant named in the F.I.R. He was pursued by Muhammad Hanif and was caught by Jindwadda and Ghulam Muhammad P. Ws. While he was running away after injuring Qutab Din and Abdul Halim. He is not a resident of the locality. There is no question of any pre-deliberation in this case.
10. The failure of the prosecution to produce Bashir and Siddiq does not affect the merits of the prosecution case as built up during the trial. The prosecution are not bound to produce all the witnesses cited in the calendar. We find from the statement of the Public Prosecutor at page 22 of the printed record that he gave up Muhammad Siddiq and Bashir P. Ws. As unnecessary and stated that they were present in Court and could be examined by the accused in his defence if so advised. The defence never demanded that these two witnesses should be produced in the witness-box for cross-examination. We, therefore, do not find any force even in this contention of the learned counsel.
11. Mr. Asif Jan, however, raised a legal plea. He contended that the action of the prosecution witnesses in intercepting the couple and then following them to the graveyard and demanding that the appellant should accompany them to the police station was entirely illegal and gave a right of self-defence to the appellant against his illegal arrest. It was his case that as soon as three or four persons followed the couple to the graveyard and demanded that the appellant should go to the police station, an apprehension arose in his mind that be shall be illegally arrested and taken to the police station. The appellant, according to the learned counsel was justified in using force to avoid arrest. As to the conviction under section 302 of the Pakistan Penal Code with regard to the death of Abdul Halim it was argued that Abdul Halim had not seen the appellant committing any offence and, therefore, he was not authorised under section 59 of the Criminal Procedure Code to effect his arrest.
12. The law regarding defence of person and property is contained in sections 96 to 106 of the Pakistan Penal Code. Section 100 mentions the conditions under which the right of private defence of body extends to the voluntarily causing of death or of any other harm. Section 101 deals with a situation when such right extends to causing of any harm other than death. Section 102 states that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed. Now, right A of private defence of the body will commence only if there is a basis for reasonable apprehension of danger to the body from an attempt or threat to commit an offence. In this case, ifl Muhammad Hanif and his companions had actually attempted to take the appellant to the police station it would amount to an illegal arrest because a private person is not empowered to arrest anybody unless a cognizable or non-bailable offence has been committed by the accused in his view. It can perhaps be said that the appellant had committed an offence under section 498 of the Pakistan Penal Code as he had induced the wife of another person to accompany him. But that offence is non-cognizable and bailable and can be taken cognizance of only when the husband, or anybody having the custody of the woman on behalf of the husband, files a complaint. The interceptors had only made a demand to the appellant to accompany him to the police station but without arguing with them in any way he whipped out the revolver and fired first at Siddiq and then at Qutab Din. In our view, the circumstances of the case could not give rise to any reasonable apprehension in the mind of the appellant that he was going to be put under any illegal arrest. It is not every idle threat that would entitle a man to use firms against the others. Before using this valuable right of self defence he has to consider and reflect whether the threat is intended to be put into execution. In the "Penal Law of India" by Dr. Sir Hari Singh Gour, Seventh Edition (1963), we find the following passage at page 482 quoted with reference to, I East P C 271 (272) under the head "Threats" :-- "A bare fear of any of these offences, however well-grounded, as that another lies in wait to take away the party's life, unaccom--panied by any overt act indicative of such an intention, will not warrant him in killing, that other, by way of precaution, there being no actual danger at the time."
We, therefore, find that there was no justification for the appellant to take out a revolver and fire twice first at Siddiq and then at Qutab Din simply because he had been asked by these two persons and their companions to accompany them to the police station.
13. Now we come to the liability of the appellant regarding the death of Abdul Halim. The power of arrest given by the law to a private person is restricted to a situation where a cognizable and non- bailable offence is committed in his view. The Lahore High Court, as it then was, held in Muhammad Ishaq and another v. The Crown (PLD 1954 Lah. 45) that where two persons had heard the shots fired and had seen the accused running away and being pursued by a number of persons who were raising hue and cry and saying that the appellants had killed a man, the offence could very well be said to have been committed in the view of those two persons for, it was by the evidence of their own eyes and ears that they discerned its existence. Reliance was also placed in this case on subsection (2) of section 46 of the Code of Criminal Procedure which reads as follows :- "If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest."
It was observed that the above provision authorised the employment of other persons to effect arrest.
14. The learned counsel for the appellant relied on .The State v. Muhammad Akbar (PLD 1966 SC 432) where their Lordships dealing with the interpretation of section 59 of the Criminal Procedure Code observed as follows :- "The right of private person to make the arrest at all is confined by section 59 of the Code to the arrest of persons whom he actually sees committing a non-bailable and cognizable offence. The words "in his view" in section 59 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 be regarded as an attempt to legislate."
The learned counsel submitted that the above observations of the Supreme Court would show that the words "in his view" could not be so liberally interpreted as to include also those persons who joined the original pursuers for arresting an accused who had committed a cognizable and non- bailable offence. In the precedent case, their Lordships considered the case of Muhammad Ishaq and made it clear that they should not be taken either to approve or disapprove of the statement of law made by the High Court in the above case. In the case before the Supreme Court, the original pursuers had left the pursuit and other people had joined after hearing the outcry. It was observed that it must 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 offence which was the lurking house trespass in that case, had allegedly been committed. It was further observed at page 437 of the report that the line of connection by sight and sound had not been established even assuming that the view taken in the case of Muhammad Ishaq was correct.
15. In the case before us, Qutab Din was fired at in the view of Muhammad Hanif who pursued him in order to effect his arrest. The appellant ran in order to evade his arrest. Muhammad Hanif raised an alarm which attracted Abdul Halim among other persons. In view of what was said in the case of Muhammad Ishaq referred to above, we find that Abdul Halim had a right to effect the arrest of the appellant and that the appellant wag guilty of an offence under section 302 of the Pakistan Penal Code when he fired at him as a result of which he died. We, therefore, hold that the conviction of the appellant on both the counts is well-based.
16. We maintain the sentence of the appellant awarded under section 307, P. P. C. But so far as the sentence under section 302, P. P. C. Is concerned, we do not think that the extreme penalty of law should be exacted from the appellant in this case. The whole trouble had started from the demand of Muhammad Hanif and others that the appellant and Mst, Anwari should accompany them to the police station. This demand was not strictly legal. The appellant was pursued into the graveyard and asked to accompany the P. Ws. To the police station. He must have felt agitated and disturbed in mind on account of this undue interference. After injuring Qutab Din he took to his heels and was pursued. We, therefore, think that he fired at Abdul Halim in the heat of the moment under the stress of the circumstances. There was, of course, no premedita--petition. We, therefore, think that in the circumstances of the case, the sentence of transportation will meet the ends of justice. We order accordingly. We do not confirm the sentence of death. The sentence awarded under section 307, P. P. C. Shall run concurrently with the sentence of transportation. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.