COURSE TITLE: CRIMINAL LAW

SUBMITTED BY: HAMNA SIKANDER

SECTION: A
REGISTRATION NUMBER: 4626-
FSL/LLB/F16

1
 PAKISTAN PENAL CODE
RIGHT OF PRIVATE DEFENCE
SECTION 96-106

2
 SECTION 96
Things done in private defence: Nothing is an offence which is done
in the exercise of the right of private defence. 1
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,
1
[PLJ2001Cr.C953; PLJ2009 CR..C. 1129; 2002 YLR 1279; AIR 1960 SC 67].

3
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.

4
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

SECTION 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

5
of theft, robbery, mischief or criminal trespass, or which is an attempt to
commit theft, robbery, mischief or criminal trespass. 2

2011 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
2
[2012 SCMR 440; PLD 1975 SC 556; 2004 PCr.LJ 821; 2000 YLR 2976; AIR 2004 SC 2875].

6
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.

7
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

8
 SECTION 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. Illustrations (a) Z, under the influence of madness, attempts to kill A; Z
is guilty of no offence, but A has the same right of private defence which he
would have if Z were sane. (b) A enters by night a house which he is legally
entitled to enter. Z in good faith, taking A for a house-breaker, attacks A. Here
Z by attacking A under this misconception, commits no offence. But A has the
same right of private defence against Z, which he would have if Z were not
acting under that misconception. 3

SECTION 99
Act against which there is no right of private defence: There is no right of
private defence against an act which dose 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 dose 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.
Extent to which the right may be exercised : The right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the
purpose of defence. Explanation 1 :A person is not deprived of the right of
private defence against an act done, or attempted to be done, by a public
servant, as such, unless he knows, or has reason to believe, that the person doing
the act is such public servant.4

1990 PCr. LJ 419

[Peshawar]
Before Fazal Elahi Khan and Muhammad Bashir Khan Jehangiri, JJ
3
[AIR 1959 ALL. 790; AIR 1927 Rang. 121].
4
[2009 YLR 1938; 2001 YLR 1091; 2012 PCr.LJ 1342]

9
Dr. ATTA MUHAMMAD and anotherAppellants
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 & 100Right of selfdefence, extent ofExercise 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 selfdefenceIf 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 selfdefence 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
544A, 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

10
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

11
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.
Explanation 2: A person is not deprived of the right of private defence against
an act done, or attempted to be done, by the direction of a public servant, unless
he knows, or has reason to believe, that the person doing the act is acting by
such direction, or unless such person states the authority under which he acts, or
if he has authority in writing, unless he produces such authority, if deemed. 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.

SECTION 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.

2013 P Cr. L J 835

12
[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

13
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.

14
(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.

15
 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

SECTION 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. 5

SECTION 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. 6
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)-----7
5
[AIR 1971 S.C. 1491; AIR 1979 SC 577].
6
[2004 PCr.LJ 942; AIR 2008 SC 3083; AIR 2010 SC 3580].
7

16
 ----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.
(b) Penal Code (XLV of 1860)---
----S. 302---Appreciation of evidence---Accused had also received two injuries
with a hard and blunt substance which had been verified through medical
evidence on the record, but no evidence was available to suggest whether said
injuries were received by accused prior to the knife blows caused to the
deceased by accused or afterwards and whether deceased had caused accused
the injuries---Death of deceased occurred over a petty issue, which was non-
payment of a few rupees to complainant by accused---Complainant and accused
had been arguing about that matter for 10 to 15 minutes before deceased arrived
on the scene---Prosecution had totally failed to explain injuries sustained by
accused which had been proved through medical evidence---Prosecution
witnesses, in fact had tried to suppress said injuries by denying a suggestion in
cross examination that it was the complainant and deceased who had given said
injuries to accused---Plea of private defence taken by accused when put in
juxtaposition with prosecution case, had led to the conclusion that accused did
receive injuries at the scene of crime in question--- Reasonable doubt in the
facts and circumstances of the case, had been created regarding availability of

17
right of private defence to accused, the benefit of which must go to accused---
High Court allowing appeal, acquitted accused.
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 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.
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].

18
 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.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Appreciation of evidence---Presence of eye-witnesses was
disbelieved by the Trial Court and ultimately the conviction and sentence of
accused was recorded on the basis of report under S.173, Cr.P.C.---Validity---
When the prosecution evidence was disbelieved and the statement of accused
was taken into consideration for recording his conviction and sentence, that was
to be believed in toto and not in isolation from the exculpatory part of statement
of accused---Report under S.173, Cr.P.C. was never tendered in evidence by the
prosecution, nor the contents of same were proved in accordance with the
provisions of Art.74 of Qanun-e-Shahadat, 1984; same, therefore, could not be
relied upon by the Trial Court for the purpose of conviction and sentence of
accused---Presence of two prosecution witnesses, who were son and nephew of
the deceased, was disbelieved by the Trial Court---If all the three eye-witnesses
had been present on the spot they must have come forward to save their father
from accused who was armed with Churri and was aged 55 years, whereas all
the three eye-witnesses were young and able-bodied, according to the
observation of the Trial Court---Defence plea was more plausible---When the
defence plea was proved, then the prosecution case would stand shattered and
discredited; and if the defence plea was substantiated to the extent of creating
doubt in the credibility of prosecution case that would be enough and if it was
not established, no benefit would go to the prosecution on that account---
Prosecution was bound to prove its case beyond doubt and that burden of
prosecution would not diminish, if the defence plea was not proved or was
found false---In the present case accused, while proving the plea, had

19
discharged his onus---Accused was well within his rights to cause injuries to the
deceased to save his nearer and dearer---Conviction and sentence of accused
were set aside, in circumstances.
(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.89
SECTION 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.
8
[PLD 1975 AJ&K 1; AIR 2010 SC 3580; AIR 1973 SC 473.]

20
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.
SECTION 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

21
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.
SECTION 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

22
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. 10
SECTION 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 th
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

10

23
(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.

24