' Z. A. CHANNA , J.-Appellant Jumma Khan was tried alongwith one Aurangzeb by a learned Additional Sessions Judge, Karachi, in respect of an offence under section 302 read with section 34, P. P. C., for committing the murder of Tanweer Iqbal Ahmad, and while co-accused Aurangzeb was acquitted, the learned Additional Sessions Judge, by his judgment delivered on 28-7-1976, convicted the appellant under section 302. P. P. C. And sentenced him to death. The appellant has preferred an appeal against his conviction and sentence and also the proceedings have been submitted to us by the learned Additional Sessions Judge under section 374, Cr. P. C. For confirmaticn of the capital sentence awarded to the appellant. By a short order, we had, on 10-10- 1976, partly accepted the appeal of the appellant and had substituted for the death sentence awarded to him under section 302, P. P. C. a sentence of 7 years' R. I. Under section 304, Part H. We now proceed to give reasons for that order.
2. The prosecution case, shortly stated, is that on 6-3-1972, at about 12 noon, deceased Tanweer was standing at the bus stop near Saeed Manzil, alongwith his friends, Ashiq Hussain and Abdul Manan, when a bus arrived and stopped at the bus stop. Two men alighted from the bus and started running towards Radio Pakistan. In the meanwhile cries were heard from passengers in the bus "catch them, they are thieves". Thereupon, the deceased and his two friends chased the two men who were running away. On the commotion, other persons, including Mohammad Shah and Mohammad Rafique, joined in the chase. The deceased, however, was the foremost in the thaw and was able to come very close to the two men running away. Thereupon, it is alleged, one of these persons, at the instigation of the other, turned round and with a churri stabbed the deceased in the chest, who immediately fell down. The person who is said to have stabbed the deceased is stated to be the appellant. Despite the knife attack upon the deceased, the chase continued and ultimately both the appellant and his companion, Aurangzeb, were apprehended at a distance of about 100 paces from the vardat and the blood-stained churri is stated to have been snatched away from the hand of the appellant. Thereafter, the appellant and co-accused Aurangzeb wore taken by Abdul Mennen and others to Preedy P. S. Where they handed them over, alongwith the blood-stained churri secured from the appellant, to the Police. An entry was made in the Station diary, giving the time of the entry as 12.60 p. m. About the production of the appellant and Aurangzeb and the churn. In the meanwhile, P. W. Ashiq Hussain had taken injured Tanweer Iqbal in a private car to the Civil Hospital, where it was found that Tanweer Iqbal had died. On a telephonic message being sent about the death to S. H.
0. Fareed Ahmed of Nabi Buz P. S. The latter went to the Civil Hospital, where ho recorded the statement of P. W. Ashiq Hussain which was sent to the P. S. For incorporation in the register of cognizable cases. This statement, however, was recorded at 1 p. m. That is ten miatues after the production of the appellant and co-accused Aurangzeb at Preedy P. S. And the recording of the entry in the Station diary of that P. S. In that behalf. As such, the learned Additional Sessions Judge rightly held the entry in the Station diary of Preedy P. S. And not the statement of P. W. Ashiq Hussain to be the F. I. P.
3. On hearing of the production of the appellant and co-accused Aurangzeb at the Preedy P. S , S. H.
0. Mohammad Farid went to that P. S., took over their custody and secured a blood-stained shirt from each of them. He also took possession of the churn' which had been produced at the Preedy P. S. The S. H.
0. Also secured a blood-stained chappal and bloodstained earth from the vardat.
4. The autopsy on the deceased was conducted by Dr. A. S. Shamim who has deposed that he found the following external injury on the deceased t- "Incised wound 1' xr wr cavity deep on the fourth inter-costal space, one inch lateral to right side eternal margin and about 2' about the right nipple."
5. In the opinion of the doctor, the above injury was caused with a sharp-edged and pointed weapon and was homicidal in nature. He has further testified that on internal examination he found the chest cavity full of blood, an incised wound in the interior surface of middle lobe of right lung and a penetrating incised wound in the right sternum of the heart, penetrating up to the left auricle, posteriorly.
6. {{BLURr PAGE}}
7. Two more doctors have been examined in the case. One is Dr. Moose Ibrahim who examined the appellant and found 4 injuries on his person, of which two were contusions, one a Iacono!" wound on the head and the last an abrasion on the fore=arm. The ether doctor examined P. W. Abdul Manan and on whom the doctor fou0s1 a contused abrasion on the loft hand. According to P. W.
Abdul Maness this injury was caused to bias W the appellant when he was attempting to apprehend him.
8. The appellant, in his statement under section 347, Cr. P. C., completely o, the prosecution allegations, inehiding the recovery of a bloodottaiOod tt frism hiuperson. His sapiens** for the injuries On his perms was that he woheaten and tortured by the police. IL The learned Additional Sessions Judge, in our opittins, has cenrully apPraitted the evidence ia the case, and rightly held that it km* the alsisellant who caused the fatal injury to the *Std. Indeed hi topf opittlom "hen is overwhelming evidence on this p*t. As :001 as fiv !IWO* -ham testified to having ICOR the impalas' giviettise fatal blow tetlaidecemseed. They are P. Ws. Ashtq Hussain and &Witt *MO (who were with the deceased at the 'time of the incident iitid had jollied him in cbasieg the appellant), Mohammad Sherif (who ea* theineldent from the verandah of his house) and Mohammad Saleem and Habib- nr-Rehmste (who wan taking tee in a hotel and joined the chase upon hearth; 0411:01t '1104 Wet% P.
We Abdul Manan and Mohammad Salons have further-delposedta'ksW11/ apprehended the appellant after a chew On distance eirpboat 100 pante from the place where be bad stabbed' the denaid, snatched away the blow"' stained Awl from him and his productiot alongwIth the churl at the ?Reedy P. S.
9. The evidence of the eye-witnesses Is *Metal MO convincing. MI of them are independent and disinterested *tittle* Who had no motive to falsely implicate the appellant. The prawn" is injury oe P.
W.. Ahdel Mayan lends further support to his version of having chased and apprehended the appellant. The possibility of a wrong'penon having been caught is ruled out by the fact that the appellant, who was being chased by a large number of persons, was apprehended only a short, distance away from the virus and at the time of apprehending bias a . Blood-stained chard was recovered from his hand. There are' no doubt some contradictions in the teatimon of the eye- witnesses but they are minor in nature and do not affect Veracity or the essential points of their evidence.
10. Corroboration to the testimony of the eye-witnemes provide by the presence of injuries on the person of the apPellant, which he seems t have sustained during the struggle to apprehend him, and the recovery o a blood stained shirt from his person; as deposed to by the S. H.
0. Pari Ahmad. Masbir Sardar, however, has not supported the proseCution c in regard to the recovery of the shirt and has stated that he saw the shirt a the police station. In our opinion he appears to have been won over b the defence, as in the first place the mashirnama for the recovery of the bears his signature, and secondly S. H.
0. Parisi Ahmed had no motive t foist a blood-stained shirt on the appellant.
11. {{BLURR PAGE}}
12. Mr. Mohammad Hayat Junejo, the learned counsel for the appellee submitted that even if it be held that the fatal injury to the deceased w caused by the appellant, the offence committed by the appellant at bas would fall under motion 304, Patt I, in that he acted in the right of priva defence though he may have exceeded his right. His precise contention we that the appellant was being chased by a number of persons who wanted to apprehend him but had no legal right to do so, and as such the appellant was entitled to resist his unlawful arrest by them. The learned counsel relied upon section 59, Cr. P. C. Which empowers a private person to arrest another person only if such other person is a proclaimed offender or if he commits cognizable and non-bailable offence within the view of the person first named. Mr. Mohammad hayat Junejo submitted that in the instant case not only no witness joining in the chase of the appellant claims to have seen the appellant committing theft but further there is no evidence. To establish that any theft was committed and all that is stated on this point is that cries of "thief", "catch him" were heard coming from the bus from which the appellant and the co-accused are said to have alighted. The learned counsel submitted that not only such cries cannot be said to have established the factum of theft but further the persons chasing the appellant cannot be said to have acted in aid of persons who had seen the theft being committed. The learned counsel relied upon a number of rulings in support of his contention that in the circumstances the appellant clearly had a right of private defence of person though he may have exceeded the same,
12. The first authority on which the learned counsel relied upon was the decision of their Lordships of the Supreme Court in the case of State v. Mohammad Akbar (1). The facts of that case were that in consequence of hearing an alarm of "thief", "thief", a number of persons, who were on patrol duty, seeing two persons approaching them, who were followed by others cr)ing "thief", "thief", attempted to stop them, whereupon one of those men, fired three revolver shots, two of which struck one of the patrol party and injured him fatally. While holding that the person firing the pistol shots had, in the circumstances of the Case, the right of self-defence to the point of killing a person, Cornelius, C.
J. Observed as follows :- "It is necessary to point out that the words "in his view" 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 committei a non-bailable and cognizable offence, may, in our view, be regarded as an attempt to legislate, The differential power expressly given by section 54 to a Policer Officer to act on reasonaNe suspicious of thing not actually seen by him, would by itself appear to stand in the way of any attempt to enlarge the powers given to a private person under section 59."
13. The next case relied upon by the learned counsel for the appellant was Murad v. State (2) in which a semew hat broader view of section 59, Cr. P. C. Was taken. In that case it was held that "the combined effect of section 59, Cr. P. C. And subsection (2) of section 46 is that a person who has not witnessed the occurrence can effect the arrest of a person running after committing a non- bailable cognizable offence if he is called upon to do so by a person who has seen such an offence being committed by the culprit running away".
1 J. The latter view was upheld by their Lordships of the Supreme Court in the case of Sultan Ahrnad v. State (3). In that case it was observed as follows I- "In our view, section 59 should not be construed so as to burden the {{FOOT NOTE}}
(1) PLD 1966 SC 432 (2) PLD 1961 gar. 137
(3) PLD 1970 SC 206 {{FOOT NOTE}} Legislature with the intention that in providing the shield to private individuals to apprehend the culprits who commit cognizable and non-bailable offences in their preserce, it had intended that this shield is to be limitad 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 neighbours and others who might come to the rescue of the victims of dastardly crimes, and help them in bringing the culprits to book."
15. We are, however, of the view that even if the pursuers of the appellant had no legal right to arrest the appealant inasmuch as neither they had themselves seen the appellant committing the theft nor has any one come forward to say that theft was actually committed or even attempted be committed by the appellant, the appellant had no right of self-defence against the deceased.
Section 99, P. P. C. Provides that there is no right of private defence in cases in which the a is time to have recourse to the protection of public authorities. The incident took place in broad daylight on a very busy road in Karachi. We can take judicial notice of the fact that on this road there are policemen posted at short distances at road-intersections and other important points for control of traffic. The deceased was unarmed and he was caused the fatal injury before he could even touch the appellant. The latter could, if he had desired, sought the protection of the traffic Police if he thought that he was being unjustifiably and illegally arrested. This, however, he failed to do and instead started running towards the byelanes, clearly indicating thereby that he did not desire assistance of the authorities.
16. Though in our opinion the appellant does not appear to have had any right of private defence against the deceased, we are of the view that he had no intention to kill the deceased. Admittedly only one blow with knife was given by the appellant to the deceased. No doubt; the blow was given on a vital part of the body and apparently was with considerable force, for the knife penetrated the chest cavity and punctured the lung as well as cut into the heart of the deceased, but we are of the view that the blow was given without any premeditation, in the heat of the moment and for the purposes of detecting pursuit and avoiding capture. The appellant cannot in those circumstances be credited with the intention of deliberately seeking out a vital part of the body for the knife attack.
He apparently struck wildly but the blow unfortunately caused fatal injuries to the deceased.
Though the appellant did not appear to have the requisite intention, we consider that he must be saddled with the knowledge that a knife blow, struck with such force as was used by the appellant, was likely to result in death, specially as the blow was aimed at the upper part of the body which houses the lungs and the heart. We would accordingly alter his conviction and sentence of death under section 302, P. P. C. To a conviction and sentence of seven years' IL I. Upder section 304, Part IF, and allow his appeal to that extent.