Right of Private Defence

96. Things done in private defence:

Nothing is an offence which is done in the exercise of the right of private defence.

2015 P Cr. L J 712

[Lahore]
 
Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ
 
IBRAHIM and 2 others---Appellants
 
versus
 
The STATE---Respondent
 
Criminal Appeal No. 768 of 2007, heard on 10th October, 2013.
 
Penal Code (XLV of 1860)---
 
----Ss. 302(b), 34, 96 & 97---Qatl-i-amd, common intention, right of private defence, exercise
of---Appreciation of evidence---Benefit of doubt---Accused persons were recommended for
prosecution in cross-version, and complainant while introducing the cross-version, did not
explain the death of deceased in that case---Such suppression of magnum fact alone could be
taken sufficient to doubt prosecution case---Post-mortem report of the deceased, had shown no
injury having been caused with firearm---Role attributed to accused had not been found likened
by the post-mortem report---Complainant party, in the cross-version, while armed with deadly
weapons launched assault and there was free-fight between the parties---Liabilities attributed to
two accused persons, were that they had common intention to cause injuries on the person of
deceased which fact was supported by the opinion of the doctor--- Special mitigating
circumstances existed because complainant party was the aggressor---Accused, in circumstances,
even in absence of specific plea of right of self-defence, it could by inferred by the court that
right of self-defence had accrued to accused persons and they were protected by Ss.96 & 97,
P.P.C.---Prosecution had not been able to prove its case against accused persons beyond shadow
of reasonable doubt and right of self-defence had legitimately been exercised by accused persons
and they had committed no offence---Convictions, sentences of all accused persons, were set
aside and they were acquitted of the charges impugned against them by extending benefit of
doubt.

1993 P Cr. L J 255

 
[Quetta]
 
Before Amirul Mulk Mengal and Iftikhar Muhammad Chaudhary, JJ
 
JAWAD ALI ---Appellant
 
Versus
 
STATE---Respondent
 
Criminal Jail Appeal No.90, Criminal Appeal (Acq.) 83, Criminal Revisions Nos.29 and 39 of
1992, decided on 13th. October, 1992.
 
Penal Code (XLV pf 1860)---
 
----Ss. 96, 300, Exception 2 & 302---Self-defence---Right of self=defence cannot be justifiably
claimed by an offender. who has committed a non-bailable offence and when attempt is made for
his apprehension he uses force to resist.---[Private defence, right of].
 
Durya Khan v. The Crown 1969 S C M R 637 and P L D 1980 Kar. 199 ref.
 
Penal Code (XLV of 1860)---
 
----Ss. 96, 300, Exception 2 & 302---Self-defence---Aggressor cannot claim right of self-
defence.---[Private defence, right of].
 
1987 S 6 M R 385 ref.
 
(c) Penal Code (XLV of 1860)---
 
----Ss. 302, 300, Exception 2 & 96---Appreciation of evidence---Accused had no right of private
defence in the attending circumstances of the case---Defence version was an afterthought and
worthy of no credence---Ocular account was consistent, inspired confidence and was
corroborated by medical evidence as well as by circumstantial evidence i.e., recovery of empties
from place of incident, recovery of pistol at the instance of accused and positive report of
Ballistic Expert---Conviction of accused was upheld in circumstances.

1988 S C M R 521
 
Present: Hamoodur Rahman, C.J. and Waheeduddin Ahmad, J
 
AHMAD ALI and others--Petitioners
 
versus
 
THE STATE--Respondent
 
Petition for Special Leave to Appeal NO-10-P of 1971, decided on 17th November, 1971.
 
(On appeal from the judgment and order of the Peshawar High Court, dated the 4th November,
1970, in Criminal Appeal No.20 of 1969).
 
Penal Code (XLV of 1860)--
 
---Ss.302/149, 304, Parts I & II, 307 & 326 read with Ss.96, 97 & 100--Private defence, right of--
Trial Court convicting accused under S.304, Part II, P.P.C. and sentencing them to undergo ten
years' R.I.--High Court on State appeal, altering conviction of accused from S.304, Part II, P.P.
C. to one under 5.304, Part I, P.P. C. but maintaining the sentence--Contention of petitioner that
once High Court comes to conclusion that the petitioners were entitled to right of self-defence of
persons, and without holding that it was exceeded, it was a case of acquittal--Such contention
found to be without any basis whatsoever--Fact that High Court had convicted the accused under
5.304, Part I, P.P.C. showed that it was of the opinion that they had exceeded the right of self-
defence and the fact that two persons had died and the third had received injury on his person left
no doubt that the accused had exceeded the right of self-defence- Conviction of accused under
S . 304, Part I , P . P . C . , held, was proper and no grave miscarriage of justice had been done--
Petition for leave to appeal dismissed

97. Right of private defence of the body and of property:

Every person has a right, subject to the restrictions contained in Section 99, to defend;
First: His own body, and the body of any other person, against any offence affecting the
 human body;

Secondly: The property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery,
mischief or criminal trespass, or which is an attempt to commit theft, robbery,
mischief or criminal trespass.

2 0 1 1 S C M R  45
 
[Supreme Court of Pakistan]
 
Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Pervez Khan, JJ
 
MUSHTAQ HUSSAIN and another---Appellants
 
Versus
 
THE STATE---Respondents
 
Criminal Appeal No. 285 of 2009 out of Criminal Petition No. 286 of 2009, heard on 9th
March, 2010.
Penal Code (XLV of 1860)---
 
----Ss.97, 99 & 302---Qatl-e-amd---Private defence, right of--Contradictory pleas---Alibi and
self defence---When accused admits that he was not present at the place of occurrence by
taking the plea of alibi then he cannot claim right of private defence, as it is self
destructive---Plea of right of private defence can be taken by a person who admits the act
charged against him but pleads an excuse--If a person states that he did not do the act at all, it
is difficult to see how at the same time the question of right of private defence would arise---
Such fact by itself is sufficient to discard the plea of right of private defence.

JUDGMENT
 
TARIQ PERVEZ KHAN, J.---When Criminal Petition No.286 of 2009 was heard by this
Court on 16-5-2009, leave to appeal was granted therein to reconsider the entire evidence,
therefore this appeal.
 
2. Mushtaq Hussain and Muhammad Nazir are two appellants who were tried by learned
Additional Session Judge, Rawalpindi, as they were charged for causing fire-arms injuries to
Ashfaq Hussain and Altaf Hussain, therefore at the end of trial they were both convicted
P L D 2003 Lahore 564
 
Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ
 
ASHIQ HUSSAIN alias NANNA and another---Appellants
 
Versus
 
THE STATE and another--Respondents
 
Criminal Appeal No. 135 of 1999 and Murder Reference No. 196 of 1999, heard on 22nd April,
2003.
 
(a) Penal Code (XLV of 1860)---
 
----S. 302(b) read with S.97---Appreciation of evidence---Private defence, right of---Burden of
proof---Principles---Date, the time and the place of occurrence, apart from the weapon used
therein were admitted by the parties and accused had not only admitted his presence and
participation in the alleged incident but had also gone on to admit that he was the one who had
killed the deceased by firing at him---Accused, though had taken a plea of exercise of right of
private defence but he had utterly failed to discharge the onus on him in that regard---Accused
had sustained injury at the hands of the deceased at the time of occurrence but no Chhuri/dagger
allegedly being carried by the deceased at the time of the occurrence had been recovered from
the spot or from the person or clothes of the deceased and no witness had been produced at all to
support or substantiate the assertion of the accused that he had fired at the deceased only after the
deceased had assaulted the accused with a Chhuri/dagger---Held, two questions were of vital
importance, i.e. firstly, as to who had done it and secondly, as to whether the person doing it had
any legal or factual justification for doing it---Onus of proof regarding the first question though
was always on the prosecution but the moment an accused person admitted killing the deceased
under whatever circumstances, onus of the prosecution on the said general issue was
automatically discharged and then the onus of proof shifted on the defence to establish through
independent evidence as to what legal or factual justification the accused person had for killing
the deceased---Fact which was admitted may not be proved when an accused person pleaded any
general or special exception the onus was always on him to prove the circumstances in that
regard through independent evidence and the Court was to presume the absence of such
circumstances---Plea of the accused regarding exercise of right of private defence or exceeding
such right, in view of the evidence available on the record, was not at all impressive---
Conviction and sentence recorded by the Trial Court was upheld and maintained by the High
Court with a modification that instead of rigorous imprisonment to be suffered by him in case of
default of compensation to the heirs of the deceased he shall undergo simple imprisonment in
that regard.  

JUDGMENT
 
ASIF SAEED KHAN KHOSA, J.---Ashiq Hussain alias Nanna appellant was convicted for an
offence under section 302(b), P.P.C vide judgment dated 24-2-1999 handed down by the learned
Additional Sessions Judge, Gojra, District Toba Tek Singh and was sentenced to death by way of
Ta'zir and to pay a sum of Rs.20,000 to the heirs of Muhammad Shahid deceased by way of
compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo rigorous
imprisonment for four months. However, through the same judgment the learned trial Court had
acquitted six co-accused of the appellant. The appellant has challenged his conviction and
sentence before this Court through Criminal Appeal No.135 of 1999 which has been heard by us
alongwith Murder Reference No.196 of 1999 seeking confirmation of the sentence of death
passed against the appellant. We propose to decide both these matters together through the
present consolidated judgment.

1988 S C M R 532
 
Present: Aslam Riaz Hussain and Ali Hussain Qazilbash, JJ
 
DIN MUHAMMAD and another--Petitioners
 
versus
THE STATE--Respondent
 
Criminal Petition No.209 of 1984, decided on 4th April, 1987.
(From the judgment of the Lahore High Court, Multan Bench, dated 2nd May, 1984, passed in
Criminal Appeal No.105 of 1981).

 
Penal Code (XLV of 1860)--
---Ss.302 & 309, Part I read with Ss. 97 & 100--Leave to appeal--Private defence, right of--Trial
Court though accepting availability of plea of private defence to accused yet holding that they
had exceeded their right, and thus convicting and sentencing them under' S.304, Part I, P. P. C.--
Contentions (i) that accused were entitled to acquittal on ground of right of private defence; (ii)
that the Trial Court had erred in holding that accused had exceeded right of private defence; and
(iii) that High Court had dealt with the plea of private defence in a most slipshod and perfunctory
manner which had resulted in the miscarriage of justice needed examination--Leave to appeal
granted

98. Right of private defence against the act of a person of unsound mind,
etc.:
When an act, which would otherwise be a certain offence, is not that offence, by reason of the
youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of
the person doing that act, or by reason of any misconception on the part of that person, every
person has the same right of private defence against that act which he would have if the act
were that offence

99.

Act against which there is no right of private defence:

There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant
acting in good faith under colour, of his office, though that act may not be strictly justifiable
by law.

There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of
a public servant acting in good faith under colour of his office though that direction may not
be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.

1990 PCr. LJ 419

 
[Peshawar]
 
Before Fazal Elahi Khan and Muhammad Bashir Khan Jehangiri, JJ
 
Dr. ATTA MUHAMMAD and another--Appellants
 
Versus
 
THE STATE Respondent
 
Criminal Appeal No. 18 and Criminal Revision No. 10 of 1988, decided on 3rd October, 1989.
 
(a) Penal Code (XLV of 1860)---
 
----Ss. 99 & 100---Right of self-defence, extent of---Exercise of right of self -defence of body or
property is subject to restrictions contained in S.99, P.P.C., one such restriction being that no
harm is to be caused other than what is absolutely necessary for exercise of right of
self-defence---If harm caused to offending party is out of all proportions to harm which is
threatened by other party and which gives occasion for exercise of that right, then right of
self-defence will stand completely negatived

JUDGMENT
 
MUHAMMAD BASHIR KHAN JEHANGIRI, J.--- The appellants, Atta Muhammad, aged
about 59 years and his son Hamidullah, aged about 28 years were tried for offences under
sections 324 and 302 read with section 34, P.P.C. and sentenced to rigorous imprisonment for
life and a fine of Rs.20,000 each for in default to undergo two years' simple imprisonment each
for the murder of Khoshboi Jan, by the learned Sessions Judge, Bannu, vide his judgment and
order, dated 12th July, 1988. Half of the fine, after recovery, was directed to be paid to the legal
heirs of the deceased. Hamidullah appellant was also convicted under section 324, P.P.C. for
causing, in the same transaction, simple hurt to Najib Khan P.W. and was further sentenced to
two years' rigorous imprisonment and a fine of Rs.2,000 or in default to undergo simple
imprisonment for six months. Both the appellants have appealed to assail their convictions and
sentences. Naqibullah Khan, complainant filed revision petition under section 439, Cr.P.C. for
the enhancement of sentence awarded to the convicts under section 302/34, P.P.C. from
imprisonment for life each to that of death each and for separately determining the compensation
under section 544-A, Cr.P.C. This judgment will dispose of the appeal and revision petition.

2009 Y L R 1938
 
[Lahore]
 
Before Tariq Shamim and M.A. Zafar, JJ
 
SARWAR KHAN---Appellant
 
Versus
 
MUHAMMAD AYUB and another---Respondents
 Penal Code (XLV of 1860)---
 
---Ss. 99, ---Right of self-defence, exercise and extent of---Once an occasion of the exercise
of the right of private defence has arisen, the accused cannot be expected to regulate the
extent of force to be used by him to keep his act within the limits prescribed by the law and
therefore, the law gives some marginal latitude to the accused---Where the force used is
grossly out of proportion to the danger precipitated by the assailant or the force used after the
danger is over that the law considers such force to be in excess of the right of self-defence
and imposes punishment.

2001 Y L R 1091
 
[Lahore]
 
Before Riaz Kayani and Bashir A. Mujahid, JJ
 
MUHAMMAD SARWAR alias Kala---Appellant
 
versus
 
THE STATE---Respondent
Penal Code (XLV of 1860)---
 
----S.99---Self-defence, right of---Extent to which the right of self-defence may be exercised---
Right of self-defence at such moment of impulse cannot be measured in golden scales and it is
well-nigh impossible to modulate one's attack in the exercise of right of self-defence step by step
to ensure that force used is commensurate with the danger averted---Law, therefore, always gives
certain degree of allowance if the right of self- defence is marginally exceeded---Only when the
force used in self-defence is grossly out of proportion to the danger precipitated by the assailant
or the use of force after danger comes to end that law considers such force to be in excess of
right of self-defence and visits the perpetrator with punishment.
 
JUDGMENT
 
RIAZ KAYANI, J.---Muhammad Sarwar alias Kala has laid challenge to the judgment of the
learned Additional Sessions Judge, Kallurkot dated 22-7-1996 whereby he was convicted under
section 302-B, P.P.C. and sentenced to death by way of Ta'zir. He was further directed to pay a
sum of Rs.30,000 by way of compensation to the legal heirs of the deceased and in default of
payment to further undergo six months, R.I. Death sentence awarded was subject to confirmation
by this Court.

100. When the right of private defence of the body extends to causing
death:
The right of private defence of the body extends, under the restrictions mentioned in the last
preceding section, to the voluntary causing of death or of any other harm to the assailant, if
the offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:--
First: Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
Secondly: Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
Thirdly: An assault with the intention of committing rape;
Fourthly: An assault with the intention of gratifying unnatural lust.
Fifthly: An assault with the intention of kidnapping or abduction.
Sixthly: An assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be
unable to have recourse to the public authorities for his release.

2013 P Cr. L J 835

 
[Lahore]
 
Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ
 
MUHAMMAD RAFIQUE---Appellant
 
Versus
 
ANAYAT ALI and 3 others---Respondents
 
Criminal Appeal No.449 of 1998, heard on 4th October, 2012.
 Penal Code (XLV of 1860)---
----S. 100---Right of self-defence extending to causing death---
Restrictions underwhich such defence is available enumerated.
JUDGMENT
 
SYED IFTIKHAR HUSSAIN SHAH, J.---This judgment will dispose of Criminal Appeal
No.449 of 1998 filed by Muhammad Rafique, who is complainant of case F.I.R. No.231 of 1996
registered under section 302/34, P.P.C. at Police Station City Kehror Pakka District Lodhran for
setting aside judgment dated 18-11-1998 passed by the learned Additional Sessions Judge,
Lodhran whereby respondents Nos.1 to 3 were acquitted. The appeal to the extent of respondents
Nos.2 and 3 was dismissed as withdrawn vide order dated 22-5-2009.
 
2013 P Cr. L J 1650
[Lahore]
Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ
JAFAR and 6 others---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.419 and Murder Reference No.121 of 2008, decided on 5th March, 2013.

Penal Code (XLV of 1860)--- 

----S. 100---Right of private defence---Extent---Right of private defence of body would extend to

the voluntary causing the death of the assailant, if assailant would launch an assault which could
reasonably cause the apprehension that grievous hurt would be the consequence of such assault.

JUDGMENT 
MALIK SHAHZAD AHMAD KHAN, J.---Jafar, Ali Sher, Riaz, Ozair, Yousaf, Afzal and
Safdar appellants along with three others were tried in case F.I.R. No.572 of 2005 dated 9-7-
2005 offences under sections 302, 109, 148 and 149, P.P.C. registered at Police Station
Tandlianwala, District Faisalabad. After conclusion of the trial, learned trial Court vide its
judgment dated 15-4-2008 has convicted

2004 P Cr. L J 942

[Karachi]
Before Sarmad Jalal Osmany, J
RASHID ALI SHAH---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.34 of 2001, decided on 22nd September, 2003.
(a) Penal Code (XLV of 1868)-----
 
----Ss. 97, 100 & 102---Private defence, right of---Scope---Burden to prove---Burden of proving
the right of private defence was not a heavy one upon accused and overall circumstances of the
case were to be looked into for the purpose of coming to a conclusion whether such right was
available to accused or not---Where a doubt had been created in the mind of the Court as to the
likelihood of the existence of such right, benefit of such doubt must go to accused---Right of
private defence in S.97, P.P.C. had provided that every person had a right to defence his own
body and the body of any other person against any offence affecting the human body and also
any movable or immovable property belonging to himself or any other person against any act of
theft, robbery, mischief or criminal trespass or an attempt to do so---Section 100, P.P.C. had
further provided that the right of private defence of the body extended to using death or any other
harm to the assailant where the assault could -her reasonably cause the apprehension of death,
grievous hurt, rape gratification of unnatural lust, kidnapping or abduction or wrongful
confinement---Finally S.102, P.P.C. had provided that the right of private defence of the body
would commence as soon as a reasonable apprehension of danger to the body would arise from
an attempt or threat to commit the offence though the offence had not been committed; and
would continue as long as such apprehension of danger to the body continued.

JUDGMENT 
Briefly stated the facts of the case per F.I.R. No.11 of 1998 Police Station Quaidabad District
Malir, Karachi are that on the date of incident viz, 11-1-1998 at 14-00 hours the complainant was
available in his shop when the appellant/accused Rashid Ali Shah son of Moazzam Shah came to
the shop and asked him to give two cigarettes for which he paid one rupee. The complainant
demanded fifty Paisa more as well as balance amount upon which the accused given him kicks,
abused him and took out a knife. Thereafter he exchanged harsh words with the complainant. In
the meantime the complainant's son Zaheer Ahmad came to the scene and asked the accused as
to why he was creating a commotion and abusing the complainant. Upon this the accused gave
two knife blows to Zahir with the intention to kill him at his left armpit and on the abdomen
whereupon the latter was severely injured and fell to the ground. Then the complainant's
nephews namely Muhammad Asif and Shakeel Ahmad as well as neighbours arrived at the scene
and tried to apprehend the accused. In this scuffle Muhammad Asif received injuries on his
fingers and the accused succeeded in fleeing away. Zahir Ahmad was taken to JPMC for medical
treatment but he succumbed to his injuries on his way

101. When such right extends to causing any harm other than death:
If the offence be not of any of the descriptions enumerated in the last preceding section, the
right of private defence of the body dose not extend to the voluntary causing of death to the
 assailant, but dose extend, under the restrictions mentioned in Section 99 to the voluntary
causing to the assailant of any harm other than death.

 
102. Commencement and continuance of the right of private defence of the body:
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; and it continues as long as such apprehension of danger to
the body continues

P L D 1979 Lahore 668

Before Aftab Farrukh, J

Syed MUSHTAQ HUSSAIN SHAH BOKHARI-Petitioner

versus

THE STATE AND ANOTHER-Respondents

Criminal Revision No. 639 of 1977, decided on 29th April, 1979.

(a) Criminal Procedure Code (V of 1898)--

--- S. 197-Sanction for prosecution, question of-Can be raised at any stage of proceedings-
Question raised-Court to advert to proposition, apply its mind and record finding on question-
Finding unless recorded of S. 197 being not applicable, further proceedings, held, not proper-
Nature, extent or scope of enquiry-Defend upon particular circumstances of each case in context-
of allegations made by parties.-[Sanction for prosecution].

Syed Ahmad v. The State P L D 1958 S C (Pak.) 27 ; S. M. H. Rizvi v. Abdus Salam

JUDGEMENT
This revision arises in the following circumstances ;

The petitioner Syed Mushtaq Hussain Shah Bokhari was posted as Deputy Superintendent of
Police (Sadar), Lahore on the 30th September, 1973. Police Station, Manawan was in his charge.

2009 M L D 596
[Lahore]

Before Muhammad Ahsan Bhoon, J

GHAFOOR AHMED alias FLATOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.409 of 1998, heard 17th December, 2008.

(b) Penal Code (XLV of 1860)---

----Ss. 100 & 102---Right of self-defence---Starting point of---Right of self-defence would start
the moment apprehension to body would arise and would continue till the danger was over and it
was not necessary that one received any injury, as apprehension of body injury or death could
not be measured at golden scale.

Sultan Ahmad Khawaja for Appellant.

Adeel Aqil Mirza, DPG for the State

Munir Ahmad Bhatti for the Complainant.

Date of hearing: 17th December, 2008.

JUDGMENT

MUHAMMAD AHSAN BHOON, J.---This appeal is directed against the judgment, dated 15-
4-1998 passed by the learned Sessions Judge, Sialkot whereby he convicted the appellant under
section 302(b), P.I.C. and sentenced him to imprisonment for life and to pay compensation of
Rs.25,000 to the legal heirs of the deceased, in default whereof to undergo further imprisonment
for six months in case F.I.R. No.373, dated 24-6-1995 offence under sections 302/34, P.P.C.
registered at Police Station Ugooki District Sialkot. Benefit of section 382-B, Cr.P.C. was
extended to the appellant whereas co-accused Muhammad Akram and Muhammad Ilyas were
acquitted.12

2004 P Cr. L J 942

[Karachi]

Before Sarmad Jalal Osmany, J

1
[PLD 1975 AJ&K 1; AIR 2010 SC 3580; AIR 1973 SC 473.]

2
RASHID ALI SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.34 of 2001, decided on 22nd September, 2003.

(a) Penal Code (XLV of 1868)-----3

---Ss. 97, 100 & 102---Private defence, right of---Scope---Burden to prove---Burden of proving
the right of private defence was not a heavy one upon accused and overall circumstances of the
case were to be looked into for the purpose of coming to a conclusion whether such right was
available to accused or not---Where a doubt had been created in the mind of the Court as to the
likelihood of the existence of such right, benefit of such doubt must go to accused---Right of
private defence in S.97, P.P.C. had provided that every person had a right to defence his own
body and the body of any other person against any offence affecting the human body and also
any movable or immovable property belonging to himself or any other person against any act of
theft, robbery, mischief or criminal trespass or an attempt to do so---Section 100, P.P.C. had
further provided that the right of private defence of the body extended to using death or any other
harm to the assailant where the assault could -her reasonably cause the apprehension of death,
grievous hurt, rape gratification of unnatural lust, kidnapping or abduction or wrongful
confinement---Finally S.102, P.P.C. had provided that the right of private defence of the body
would commence as soon as a reasonable apprehension of danger to the body would arise from
an attempt or threat to commit the offence though the offence had not been committed; and
would continue as long as such apprehension of danger to the body continued.

Zarid Khan v Gulsher 1972 SCMR 597; Ahmad Din v. Faiz Ahmad 1972 SCMR 549; Gulabat
Khan v. The State PLD 1971 Pesh. 7; Sadiq v. The State PLD 1967 SC 356; Samoo v. The State
PLD 1962 Kar. 495; Sultan Muhammad v. The Crown 1970 PCr.LJ 670; Muhammad Shareef v.
The State 1992 PCr.LJ 1219; Ejaz Ahmed alias Gandhi v. State PLJ 1999 Lah. 306 ref.

Shaukat H. Zubedi for Appellant

Fazal-ur-Rehman for the State.

Date of hearing: 11th December, 2002.

JUDGEMENT
Briefly stated the facts of the case per F.I.R. No.11 of 1998 Police Station Quaidabad District
Malir, Karachi are that on the date of incident viz, 11-1-1998 at 14-00 hours the complainant was
available in his shop when the appellant/accused Rashid Ali Shah son of Moazzam Shah came to

3
the shop and asked him to give two cigarettes for which he paid one rupee. The complainant
demanded fifty Paisa more as well as balance amount upon which the accused given him kicks,
abused him and took out a knife. Thereafter he exchanged harsh words with the complainant. In
the meantime the complainant's son Zaheer Ahmad came to the scene and asked the accused as
to why he was creating a commotion and abusing the complainant. Upon this the accused gave
two knife blows to Zahir with the intention to kill him at his left armpit and on the abdomen
whereupon the latter was severely injured and fell to the ground. Then the complainant's
nephews namely Muhammad Asif and Shakeel Ahmad as well as neighbours arrived at the scene
and tried to apprehend the accused. In this scuffle Muhammad Asif received injuries on his
fingers and the accused succeeded in fleeing away. Zahir Ahmad was taken to JPMC for medical
treatment but he succumbed to his injuries on his way. Hence the complaint.

103. When the right of private defence of property extends to causing death:
The right of private defence of property extends, under the restrictions mentioned in Section
99, to the voluntary Causing of death or of any other harm to the wrong-doer, if the offence,
the committing of which, or the attempting to commit which, occasions the exercise of the
right, be an offence of any of the descriptions hereinafter enumerated, namely:-
First: Robbery;
Secondly: House-breaking by night;
Thirdly: Mischief by fire committed on any building, tent or vessel, which building, tent
or vessel is used as a human dwelling or as a place for the custody of property;
Fourthly: Theft, mischief or house-trespass, under such circumstances as may reasonably
cause apprehension that death or grievous hurt will be the consequence, if such
right of private defence is not exercised.

P L D 2001 Lahore 219

Before Riaz Kayani, J

MUHAMMAD FAYYAZ and others---Petitioners

versus

THE STATE---Respondent

Criminal Appeal No.699 of 1998, heard on 16th February, 2001.

(a) Penal Code (XLV of 1860)----

----Ss. 97, 103 & 104---Right of private defence---Provisions of S.97, P.P.C. have given every
person a right to defend movable or immovable property belonging to himself or to any other
person against any act which is an offence falling under the definition of theft, robbery, mischief
or criminal trespass or attempt to commit such offences---Provisions of 9.103, P.P.C. have
defined the right of private defence of property which extends to causing death, in certain cases
whereas S.104, P.P.C. has limited the harm to be caused to the assailant in the exercise of right
of self-defence of property to any injury or harm, but certainly not death, if the danger to the
property was not the one as envisaged by S.103, P.P.C.

JUDGMENT
Muhammad Fayyaz son of Noor Muhammad and Rab Nawaz son of Mian Muhammad have
assailed the judgment of the Additional Sessions Judge, Khushab dated 31-7-1998, whereby
appellants were convicted under section 302(b), P.P.C. for the murder of one Muhammad Azeem
and sentenced to life imprisonment by way of Ta'zir and also directed to pay Rs. 5,000 each as
compensation under section 544-A, Cr.P.C. to the heirs of the deceased. In default of payment of
compensation both the appellants were ordered to undergo 4 months S.I. Benefit of section 382-
B, Cr.P.C. was extended to the appellants.

104. When such right extends to causing any harm other than death:
If the offence, the committing of which, or the attempting to commit which, occasions the
exercise of the right of private defence, be theft, mischief or criminal trespass, not of any of
the descriptions enumerated in the last preceding section that right dose not extend, to the
voluntary causing of death, but dose extend, subject to the restrictions mentioned in Section
99, to the voluntary causing to the wrong-doer of any harm other than death.
P L D 2001 Lahore 219

Before Riaz Kayani, J

MUHAMMAD FAYYAZ and others---Petitioners

versus

THE STATE---Respondent

Criminal Appeal No.699 of 1998, heard on 16th February, 2001.

(a) Penal Code (XLV of 1860)----

----Ss. 97, 103 & 104---Right of private defence---Provisions of S.97, P.P.C. have given every
person a right to defend movable or immovable property belonging to himself or to any other
person against any act which is an offence falling under the definition of theft, robbery, mischief
or criminal trespass or attempt to commit such offences---Provisions of 9.103, P.P.C. have
defined the right of private defence of property which extends to causing death, in certain cases
whereas S.104, P.P.C. has limited the harm to be caused to the assailant in the exercise of right
of self-defence of property to any injury or harm, but certainly not death, if the danger to the
property was not the one as envisaged by S.103, P.P.C.

105. Commencement and continuance of the right of private defence of property:

 The right of private defence of property commences when a reasonable apprehension of
danger to the property commences.

The right of private defence of property against theft continues tilt the offender has effected
his retreat with the property or either the assistance of the public authorities is obtained, or
the property has been recovered.

The right of private defence of property against robbery Continues as long as the offender
causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the
fear of instant death or of instant-hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as
long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house breaking by night continues as long as
the house-trespass which has been begun by such house-breaking continues.
106. Right of private defence against deadly assault when there is risk of harm to innocent
person:
If in the exercise of the right of private defence against an assault which reasonably causes the
apprehension of death, the defender be so situated that he cannot effectually exercise that right
without risk of harm to an innocent person, his right of private defence extends to the running of
that risk.

001 SCMR 51

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

MUHAMMAD ANWAR ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.55 of 1999, decided on 2nd June, 2000.

(On appeal from the judgment, dated 23-6-1996 passed by Lahore High Court, Lahore in
Criminal Appeal No. 192 and Murder Reference No.71 of 1992).

(a) Penal Code (XLV of 1860)----

----Ss.105, 106 & 302---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was
granted by Supreme Court to consider as to whether the accused in the circumstances of case had
exercised the right of self-defence, therefore, extreme penalty of death was not called for; and
whether High Court had appraised

IFTIKHAR MUHAMMAD CHAUDHRY, J.---Instant appeal arises out of leave granting

order, dated 25th February, 1999 to examine the 'following questions:--

(i) Where the petitioner in the circumstances of the case had exercised the right of self-defence,
therefore, extreme penalty of death was not called for; and

(ii) whether the High Court has appraised the evidence in conformity with the well-established
principles relating to appreciation of evidence as laid down by the superior Courts td ensure safe
administration of justice in criminal cases.