' Dr. Maqbool Ahmad Jauhar is required by the police in a case under sections 302/307, P. P. C.
Registered against him at Police Station Gulberg, Lyallpur on 31st May 1974 in the course of Anti- Qadiani Agitation in Lyallpur over the Rub was incident. He has surrendered before me for admission to anticipatory bail on the ground of false implication as he claims to be present in Lahore since the 29th May 1974 and could not go back to Lyallpur to move the Sessions Judge in the first instance due to the disturbances there. It is for this reason that this petition is being directly entertained in this Court.
2. I have heard learned counsel of the parties and also perused the copy of the F. I. R. Placed on this record but do not consider it a fit case for pre-arrest bail.
3. He has set up a plea of alibi and in the alternative that of self-defence. The first plea cannot be accepted at this stage as he has to produce evidence about it after entering upon his defence.
About the second it was urged that even if the facts disclosed in the initial report are assumed to be correct a clear right of private-defence had accrued to the petitioners as the mob assembled in front of his house was throwing out his assets in the lane, when he arrived there and in this admitted situation he had a legal right under sections 97 (2) and 103(4) of the P. P. C. To disperse them in order to save his property against this mischief. His learned counsel seems to have forgotten that the right conferred on a citizen in these two sections is subject to the restrictions embodied in section 99 of the P. P. C. That if there is time to have recourse to the protection of public authorities no one can invoke this right, and in case the exercise of this right is inevitable, it does not extend to the inflicting of more harm than it is necessary for the purpose of his defence.
4. The petitioner was admittedly absent from his house on the fateful morning and came to know of this incident on entering his lane. He was riding a Scooter and could have easily rushed back to the nearby Police Station and sought protection of the police in the matter, but he took the risk of using his revolver in wan-on disregard of this legal restriction by firing outright on these persons causing injuries to three of them, one of whom dropped dead at the Tot. These persons were certainly not among those who were throwing out his house-hold assets but were standing away from the premises involved and were not even alleged to be tampering with any of his articles. He, no doubt, had a right to stop any one from causing damage to his property and if in that attempt he was assaulted by any one of them in such a manner that it could give rise to a reasonable apprehension of death or grievous hurt, this right would have extended even to causing of the death of his adversary under section 103(4), P. P. C. As held in Pyare and others v. The State (1), Mehram and others v. The State (2) as also Abdul Latif v. The State (3). There was however no indication of any such apprehension for him as none of these persons were alleged to be armed or used any violence against him. He had in fact without giving any warning verbally or even by firing in the air to scare them away, set upon them by outright firing without discriminating between the actual miscreants and the silent spectators like the three injured persons one of whom was a lady passerby and the other a sweeper busy in cleaning the lane. He seems to have acted in reprisal and not in defence of his property which the law did not permit anyone to kill a man outright under the pretext of defence of his property as observed in Sardarai's case (4). In view of this legal position, the alleged act of the petitioner was not protected under the provisions of either of these two sections. I have, therefore, to dismiss this petition and order accordingly. {{FOOT NOTE}}
(1) AIR 1953 A 303 (2) PLD 1955 Lah. 170
(3) PLD 1960 Lah. 62 (4) PLD 1970 SC 212 {{FOOT NOTE}}