' AGHA ALI HYDER, J.- The appellant and one Shaman were tried by the learned Sessions Judge, Khairpur, for offences under sections 302 and 307, read with sections 34, P. P. C. And 13-D of the West Pakistan Arms Ordinance, 1965. Shaman was acquitted, but the appellant was convicted. On the first count, he was awarded death sentence, while, on the second count, be was given R. I. For four years, and a fine of Rs, 500.00, or, in default, to suffer R. I. For six months more, and, on the third count, R. I. For one year. There is a reference by the learned Sessions Judge under section 374 of the Code of Criminal Procedure, and there is an appeal preferred by the convict. The reference and the appeal will be disposed of by this common judgment.
2. On the midnight of the 9th April 972, P. Ws. Murid Hussain, Muhammad Faqir and Nazar Hussain, chowkiaars of IVIohalla Nizamani the town of Khairpur Mirs, saw two prowlers moving in suspicious circumstances. When they were accosted, a shot was fired, and P. W. Faqir Muhammad fell down, being struck on the thigh. There was a commotion raised. The prosecution story is that, in the secinity, there was a police party,-on patrol duty, consisting of A. S. I Muhammad Husain and A. S. I.
Hyder Mir. Some men from the neighborhood, apart from tte.:, police party, joined the chase. To escape apt_ her-Imrenoth ten prowlers are alleged to have opened fire, killing Paryal, the Chowkidar of Col. Shah Hostel. However, during his bid to escape, the appellant is stated to have stumbled, and was secured, but his companion eluded their grip. The appellant was apprehended at the spot where he ad fallen own. He had a .32 bore revolver. It was found to contain five empty sells of bullet. His personal search had yielded a knife and a bunch of Keys. The appellant was taken to the Police Station, Kbairpur, where the Report was lodged by A. S. I Muhammad Hussain.
There were some injuries on the person of the appellant, and a vlashirnama' was prepared for his arrest. Faqir Muhammad and the appellant were sent to the Civil Hospital. On getting information, S. H.
0., ,viian Masood Hayat had also turned up at the "wardat", and found an empty shell lying there It was secured in the presence of the masnirs. Then, came the inquest report. Enquiries were then made from P. Ws. Naz o Hussain, Murid Hussain and triers. After due investigation, the case came to be challenged before the Court.
3. The appellant in his statement at the Court of enquiry denied the various allegations made against him, and had the following to say : "I have been implicated falsely. I got down from Iran at 11-30 p.m. Which came from Rohri sicie is the sister of my brother nad expired. The houses of my relatives are situated in Bachal Monaca and I had come to inform them about the death of mother's sister. I was coming by main road. When I reached near Hostel, one person cane and sudden), gave lathi blow at my head. I raised cries and then went unconscious. After some time l regained my senses. 1 had a bundle of clothes in hand I again went unconscious and regained my senses in Civil Hospital and found my bundle of clothes missing. I gain regained my senses in police on toe next day. I was again returned to Civil Hospital for treatment."
' The same stand was maintained by him at the trial, the only difference being that he supplied the name of the relation to whom he was going to break the news.
4. As for the death of Parya', apart from the oral testimony in the. Case, there is also the deposition of Dr. Sean Nawaz, who had performed the autopsy, and found that there was a lacerated fire arm wound i" in diameter x chest cavity of the front of the left chest as a wound of entry. As a result of this injury, the chest wall, the left pleura and heart, the left lung and pulmonary and critic vessels were ruptured. The above injuries, according. To the Medical Officer, were sufficient, in the ordinary course of nature, to cause instantaneous death.
5. The said Medical Officer also found the following injuries on the person of Faqir Muhammad t
(1) Gunshot wound at the upper portion of the front side of the thigh x (wound of entry).
(2) 2' x 4" at the back of the upper portion of the thigh opposite to injury No, 1 (wound of exit).
These injuries, according to him, were grievous in nature, and had been caused by fire-arm.
6. At the starting point of the incident, out of the prosecution witnesses, only three persons were present, namely, P. W. Murid Hussain, P. W. Nazar Hussain, son of Muhammad Khan, and P. W. Faqir Muhammad. P. W. Faqir Muhammad has stated that the faces of the two persons, whom they had challenged, were muffled, and he could not see as to what they had in their hands; it being a dark night. However, one of the two had fired at him, hitting in the thigh. Any way, he has stated that, on their cries, a number of people, including some policemen, had turned up on the scene, and took up the chase. He did not know as to what happened thereafter, as he had lost his consciousness. P.
W. Murid Hussain also supports him as far as the arrival of other persons, once the cries had been raised, is concerned. He had given up the pursuit, and had later heard gun reports. However, P. W.
Nazar Hussain had kept on the chase along with others, and had seen the apprehension of the appellant near Col. Shah Hostel. He mentions the securing of the knife and a bunch of keys, but is reticent about the revolver. From amongst the pursuing party, the prosecution, apart from A. S. J.
Muhammad Hussain and A. S. I. Hyder Mir, had examined Nazar Hussain, son of Rasool Bukhsh a photographer, who states to have joined the police patrol party. P. W. Nazar Hussain states to have seen two thieves running and being chased by a number of men from the locality. He also states to have followed suit. He added that, when the thieves had reached Col. Shah Hostel, the chowkidar of the hostel came in front of them. He was fired upon, and met an instantaneous death. He (the witness) had a torch; so had A. S. I. Muhammad Hussain. In the flash of the torch light, they could see the faces of the thieves. At the boundary of Col. Shah Hostel, one of the thieves got entangled in the wires, and fell down, and was nabbed. His companion, however, made a bid for safety. The same is the version which has been furnished by the two police officers named above. P. W.
Ghulam Shabbir and P. W. Illahi Bux, especially the former, relate the happenings near the hostel, and the securing of the appellant.
7. The appellant also admits his apprehension in this area at the relevant time. He, however, maintained that he had come to Khairpur to break the news of a bereavement in the family to his relations at Khairpur, and, while he was on the way, he came to be gratuitously involved in this misfortune because of mistaken identity. At the Court of Enquiry, he however, did not care to name even the relation where he was going at that odd time. On his own showing, he was coming by the main road. The record clearly makes out that a number of people, including the police party, had collected together, once the outcries had been raised. Faqir Muhammad, because of his injuries, had remained behind. Even P. W. Murid Hussain concedes that he gave up the pursuit. However, P.
W. Nazar Hussain has categorically mentioned that he had kept on the pursuit, and had been joined by a number of persons. Looking to the evidence of the Tapedar, and otherwise, the distance between the place, where Faqir Muhammad had been felled down, and the boundary of Col. Shah Hostel could not be much. There is no suggestion that any alleys, or, labyrinthine passages were involved. Paryal had come out of the Hostel, and within the sight of the pursuers had been mowed down to the ground, by a revolver shot. The apprehension is alleged to have taken place, as the appellant got entangled in the wires by the boundary of the Hostel. There is also the evidence of P.
W. Ellahi Bakhsh, who was then the Superintendent of Col. Shah Hostel, and, later on, enrolled as an advocate, who had seen the appellant holding a revolver in his hands, which had been secured by the police. To the same effect is the evidence of P. W. Ghulam Shabbir, the chowkidar of the Hostel.
There is no reason to look askance at the testimony of Ellahi Bukhsh, who is a totally independent witness. The securing of an empty shell from the "wardat" is deposed to by the police officers, but all the other witnesses have stopped short by mentioning only the five empty shells inside the revolver. These empty shells had been sent to the ballistic expert, and Mr. Mukhtar Ahmad has deposed that the same had been fired by the revolver in question. As the matters stand, I have no hesitation in agreeing with the learned Sessions Judge that the appellant was one of the persons involved in this incident.
8. It is an admitted position that, when the appellant had been nabbed, there were injuries on his person. He was examined by Dr. Shah Nawaz, who had found two injuries, firstly a lacerated wound 34' scalp deep, and another lacerated wound 24' x 4" also scalp deep. The same might have been the result of the fall he had, as a result of stumbling on wire-fencing, or as a result of drubbing after his apprehension. These injuries were simple in nature. The appellant mentions of one lathi blow being given to him, but the injuries could not have been inflicted the way as stated by the appellant, nor could he have become unconscious as a result of the same. There is no suggestion that he had protested his innocence of the blood orgy before that attack on him. The version put forward by the appellant appears to be only an afterthought.
9. Mr. Muhammad Hayat Junejo, learned counsel for the appellant, in the alternative contended that, since a number of persons had taken up the chase without seeing for themselves that a non- boilable and cognizable offence had been committed, they had taken up a venture not permissible within the meaning of section 59 of the Code of Criminal Procedure. He maintained that the appellant had not only an apprehension of being visited by mob fury, but had actually received two injuries on his head, and therefore the right of private defence of his person had accrued in his favor. In support of his contention, he relied upon the case of The State v. Muhammad /attar (1). It was held therein that under section 59 of the Criminal Procedure Code, the right of a private person to make an arrest was confined to arresting any person who "in his view" commits a non-boilable and cognizable offence". Notice was taken also of the case of Muhammad Ishaq v. Crown (2) where the learned Judges had taken the view that the words "in his view" occurring in section 59 of the Criminal Procedure Code were to be liberally interpreted. Though it was observed, that the line of connection by sight and sound was to be established, their Lordships of the Supreme Court neither approved nor disapproved the statement of law in the Lahore case. However, the precedent case was examined in Sultan Ahmad and another v. The State (3) and their Lordships held that the view, that the pursuers of a culprit who has committed
(1) PLD 1966 SC 432 (2) PLD 1954 Lah. 45
(3) PLD 1970 SC 206 ' a non-boilable and cognizable offence in their presence, have a right to seek the assistance of others, proceeds on the basis of section 46 of the Code, as the words "all means" used therein are very wide and have been held to include the taking of assistance from others in effecting the arrest of such a person. It was further observed that ".. . Section 59 should not be construed so as to burden the Legislature with the intention that in providing the shield to private individuals to apprehend the culprits who commit cognizable and non-boilable offences in their presence, it had intended that this shield is to be limited only for those individuals who actually see the commission of the crime by their own eyes and is not available to those who come to their assistance on their outcry for help. Such a restricted view, in our opinion, would destroy the much wanted, but rarely displayed public spirit on the part of the neighbors and others, who might come to the rescue of the victims of dastardly crimes, and help them in bringing the culprits to book." The participation of Nazar Hussain, son of Muhammad Khan, Ghulam Shabbir and others in the pursuit, under the circumstances, would, therefore, not be open to any exception. There is also no merit in the contention, that Paryal had been killed as a result of the firing from the police officers. The two police officers do admit that they had fired two rounds each from their revolvers, but the evidence on the record is unmistakably clear that Paryal had died as a result of the firing from the appellant.
I am clearly of the opinion that Faqir Muhammad had received the injury as a result of the firing by the appellant or his companion, and Paryal met his A end at their hands. Therefore, the conviction of the appellant for an offence under section 302/34, P. P. C. Is in order. However, the injury sustained by Faqir Muhammad was on the thigh, which is not a vital part. Looking to the consequences that ensued, it will also not be safe to infer that the /3 intention was to cause Faqir Muhammad's death in inflicting the said injury. To my mind, the offence would fall under section 326 read with section 34, P. P. C. Even the conviction under section 13-D of the Arms Ordinance will not be open to any challenge.
10. None of the witnesses has said for definite that the injury received by Faqir Muhammad was at the hands of the appellant. Similarly, nobody has said that the fatal shot sustained by Paryal was from him. Mr. Muhammad Hayat Junejo, learned counsel for the appellant, therefore, urged that it was not a case where the appellant should be visited with the supreme penalty under the law, as the identity of the individual responsible for fatal blows was not discovered. In support of his argument, he relied upon Godho and others v. The State (1), Sarfraz and 4 others v. The State (2) and Niamat and others v. The State (3). There is force in this contention. We will, therefore, substitute the sentence of imprisonment of life for the death sentence. The reference, in the circumstances, is not accepted. As against the sentence of the appellant for the offence under section 326/34, as found by us we will maintain the sentence of four years awarded by the learned Sessions Judge, but remit the fine of Rs, 500.00. We will also maintain the sentence of one year under section 13-D of the West Pakistan Arms Ordinance, 1965; all the sentences will be concurrent.
With this modification, the appeal stands dismissed.
(1) 1968 P Cr. L J 791 (2) 1971 P Cr. L J 205
(3) PLD 1961 Lah.
1.