' TASSADUQ HUSSAIN JILANI, J.--- This judgment shall dispose of Criminal Appeal No,142 of 1989 and Criminal Revision No,123 of 189 as they arise out of the same judgment.
' Appellant Muhammad Javed along with his two co-accused Muhammad Saleem and Ghazanfar Ali were tried by Mian Abdul Khaliq, Judge Punjab Special Court for Speedy Trial No,VII, Rawalpindi for the murder of Ali Asghar who vide his judgment, dated 13-7-1988 while acquitting co-accused convicted the appellant under section 302, P.P.C. And sentenced him to death and a fine of Rs,50,000 in default whereof to undergo two years' R.I. By way of compensation he was directed to pay Rs,50,000 to the legal heirs of the deceased and in default to undergo further six months'
2. Brief facts of the prosecution case given in the F.I.R. (Exh.P.A./1) recorded on the statement of complainant Mumtaz Ali (P.W.10) which is Exh.P.A. (recorded by Muhammad Akram S.I. P.W.15) registered by Taj Muhammad (P.W.1) are that the complainant was present at his shop when two persons, marks of identification of which were given in the complaint, came to the shop and asked for a packet of Gold Leaf cigarettes. They were given the said packet'. And one of them gave the complainant a one hundred currency note who found it to be forged. An argument having been arisen over the issue they went to the nearby shop of Gillani Corporation. The proprietor of the said shop Muhammad Jahangir who appeared as P.W.11 confirmed that the said currency note was forged. Meanwhile a third person also came to the spot. He took the said currency note from the complainant and asked the other two persons to run away. As the said persons ran, the complainant along with Muhammad Jahangir (P.W.10) and Muhammad Ayyaz (given up P.W.) attempted to chase the persons in question. Hearing the noise complainant's brother Ali Asghar (deceased). Also came there. The complainant told his companions to catch hold of the third person who had come later in time whereupon the said person took out a revolver and fired which hit complainant's brother on the left side of his chest. He fell Dolan and in that moment of shock, the accused ran away from the spot. Ali Asghar was attempted to be shifted to hospital but he breathed his last on the way.
3. The accused were arrested and sent to judicial lock-up wherein they were subjected to identification parade conducted under the supervision of Muhammad Latif Barlas, M.I.C. Who appeared as P.W.8.
' On 15-2-1988 while in custody of police, appellant Muhammad Javed led to the recovery of revolver (P.8) which was taken into possession vide memo. ' Exh.P.N. Alongwith the said revolver four alive cartridges were also taken into possession which finds mention in the afore-referred recovery memo.
' During trial, the prosecution examined fifteen witnesses including the doctor and the Investigating Officer.
' Dr. Nasiruddin appeared as P.W.12. He found the following injuries on the person of Ali Asghar deceased:-- "Fire-arms wound of entry 1 x 1 c.m. In the mid of clavicle line 5 c.m. Above left nipple; on dissection, the following:-- ' After damaging skin, subcutaneous tissue, it damaged the left upper lobe of lung, left auricle of heart, right upper lobe of lung, and entered the intercostal muscle on right side of chest."
' In his opinion the deceased died due to shock and hemorrhage which lead to cardiorespiratory failure as a result of injury No,1 which according to him, was sufficient in the ordinary course of nature to cause death.
' Mumtaz Ali who is brother of Ali Asghar deceased appeared as P.W.10. He gave statement in Court consistent with his version given in Exh.P.A. His statement was corroborated by Muhammad Jahangir (P.W.11). Muhammad Ayyaz was, however, given up as unnecessary. P.W.2 is Sajid Mahmood. He escorted the dead body of Ali Asghar to Central Hospital, Rawalpindi. P.W.3 is Muhammad Akram (Draftsman) who prepared the site plan (Exh.P.C. And Exh.P.C./1). P.W. 4 is Hubdar Hussain, A.S.I. He handed over the sealed parcel containing revolver .32 bore to Mumtaz Hussain Constable for onward transmission to the Forensic Science Expert. P.W.5 is Mumtaz Hussain who delivered the sealed parcel containing the afore-referred revolver to the Forensic Science Laboratory, Lahore. P.W.6 is Ghulam Sarwar Khan. He is Assistant Currency Officer of State Bank of Pakistan who scrutinized the currency note (Exh.P.7/1-7) and found the same as forged. His report was brought on record as Exh.P.D. P.W.7 is Muhammad Khalil, S.I. He arrested accused Muhammad Saleem and sent him to judicial lock-up after the orders of the Magistrate concerned. Muhammad Latif Barlas appeared as P.W.B. He supervised the identification parade proceedings. Muhammad Bashir is a witness of recovery of revolver (P.8) and of four alive cartridges (P.9/1-4). P.W.14 is Shaukat Ali, A.S.I. Who produced the apprehension role (P.8) of Ghazanfar Ali accused about his desertion from Army. P.W.15 is Muhammad Akram who recorded statement of the complainant "
(Exh.P.A,.) and also partly investigated the case.
4. The appellant when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication due to enmity and suspicion.
5. Learned counsel for the appellant while assailing the impugned judgment of conviction submitted that the judgment under appeal is violate of the principles laid down by this Court for the safe administration of justice; that the prosecution failed to prove its case beyond a shadow of doubt and that even if the prosecution evidence is admitted to be true, the appellant was within his right to exercise his right of private defence as he was being apprehended although he had committed no offence.
6. Learned State Counsel has defended the impugned judgment and submitted that it was a broad daylight occurrence; that the F.I.R. Was lodged promptly; that the appellant and co-accused were specifically named and no enmity with the complainant was brought on record to warrant an inference that the.Case was false or product of mala fides.
7. We have given our anxious considerations to the arguments addressed at the bar and have also gone through the record.
8. It is in evidence that appellant Muhammad Javed had come to the spot later in time and not with those accused who had given the forged currency note. There is no evidence that, he was privy to the transaction along with the other co-accused. The question would, therefore, arise whether the witnesses were justified in their attempt to apprehend the appellant? To better appreciate this question as also the conduct of the witnesses a reference to the relevant provision of law enshrined in section 59, Cr.P.C. Would be of assistance which reads as under:-- "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 the absence of a Police Officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 54, a Police Officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a Police Officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section
57. If there is no sufficient reason to believe that he has committed any offence, he shall be at once released."
Although appellant Muhammad Javed, during trial, never specifically took up this plea but a perusal of the evidence would show that as the witnesses had not seen him committing within their view a 'non-boilable' and 'cognizable' offence and as such the appellant was within his right to resist his arrest.
' In The State v. Muhammad Akbar PLD 1966 SC 432, the Honorable Supreme Court drew a distinction between the powers granted to police for arrest of a person against whom a reasonable suspicion exists and the powers given to a private individual under section 59 of the Cr.P.C. And observed as under:-- "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 end devour 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-boilable and cognizable offence."
' The august Supreme Court quoted paragraph 2810 of Archibald Criminal Pleading, Evidence and Practice, 34th Edn. Which is to the following effect;-- "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."
Thus, the condition precedent for a private individual to exercise the right under the afore-referred provision of law is that something must have happened in front of the said private individual to persuade him to the conclusion that the person which is sought to be apprehended has committed some cognizable offence. This condition precedent being non-existent, the prosecution witnesses and Ali Asghar deceased had no authority in law to apprehend Muhammad Javed appellant. He had, therefore, a right of private defense. However, in the exercise of his right of private defense the appellant appears to have exceeded the said right and his case would, therefore, fall within the ambit of section 304, Part II, P.P.C.
' In this view of the matter the appeal is partly allowed, the conviction of the appellant is altered from section 302, P.P.C. To under section 304, Part II, P.P.C. And is sentenced to eight years' R.I. And a fine of Rs,20,000 in default whereof to undergo R.I. For a period of six months. He is also burdened with compensation of Rs,20,000 to be paid to the legal heirs of the deceased in default whereof to undergo further R.I. For six months. Benefit of section 382-B, Cr.P.C. Shall also be extended to him.
' Criminal Revision No,123 of 1989 filed by the complainant for enhancement of compensation is not tenable in law as nothing has been brought on record to justify enhancement of compensation.
The same is, therefore, dismissed.