510 Mahmood v.

Government of Malaysia & Anor [1973] 1 MLRH

MAHMOOD
v.
GOVERNMENT OF MALAYSIA & ANOR

High Court, Kuala Lumpur

Yong J
[Case Referred Civil Suit No. 12 Of 1969]
20 December 1973

JUDGMENT
Yong J:
In this suit the plaintiff claimed damages for physical injuries suffered by him as a
result of a gunshot wound caused by the second defendant a police constable in the
employ of the Government of Malaysia. In his amended statement of claim the
plaintiff alleged that while he was lawfully in the Lake Gardens in the early
morning hours of 1 am on 4 January 1968, he heard a commotion and ran away
and while running away the police without any warning unlawfully and
negligently shot and wounded him. The defence was that the second defendant
while on police duties in the Lake Gardens heard a woman screaming for help. He
and another constable rushed towards her direction. He saw the plaintiff and
another Malay running away from the scene. He gave chase and shouted to them
to stop. They ignored his warnings and continued to run away. He fired a warning
shot. As they still continued to run away a second shot was fired. It hit the plaintiff
and brought him to a halt. The defence contended that when the second defendant
fired those shots he was lawfully discharging his police duties to prevent the
plaintiff from escaping.
The question before the Court is whether the second defendant was justified or
negligent in firing the second shot injuring the plaintiff under the circumstances of
this case.
The facts showing the circumstances under which the plaintiff was shot may be
briefly described as follows.
The plaintiff and his three friends, Sulaiman, Moktar and Aziz after spending three
hours in drinking and dancing left the Bukit Bintang Joget Hall in the early
morning hours of 4 January 1968. From there they went to Jalan Tuanku Abdul
Rahman, where they met two young ladies near the Mara Building. "I offered
them a lift home in our car" said the plaintiff. They accepted the invitation and
were conveyed not to their homes but to a restaurant in Jalan Brickfields, and after
food they were taken to the Lake Gardens. Moktar who was the driver, stopped the
car near the vicinity of the Lake Club Buildings and its car park.
[1973] 1 MLRH Mahmood v. Government of Malaysia & Anor 511

In the car were four men and two girls. They decided to split up into two groups so
that two men could be with one girl. Sulaiman and plaintiff got out of the car with
one girl, and the others remained in the car. Sulaiman took the girl to a bush and
the plaintiff followed them. The bush was about 50 yards away from the car. When
they were inside or near the bush, plaintiff, according to his story, was requested by
Sulaiman to go away and he then walked back to the car. While he was talking to
Moktar and Aziz in the car, he heard screams coming from the bush. The girl in
the bush was screaming for help. The girl in the car got out and went to the
assistance of the girl in the bush. Plaintiff followed the girl and went towards the
direction of the bush. On reaching the bush he saw Sulaiman and the girl on the
ground. He asked Sulaiman to go home, and his suggestion was ignored. Then he
heard people speaking and saw them coming towards them. They were about 50
yards away and were shining their torch lights towards his direction. He became
frightened and told Sulaiman to run away and they both ran away leaving the girl
behind.
When he was cross-examined why he had followed Sulaiman and the girl into the
bush, plaintiff reluctantly replied:
Now I admit that I went with Sulaiman into the bush in order to have sexual
intercourse with the girl but not against her will. There was no arrangement to pay
the girl. No arrangement for payment was ever made with the girls. If the girl had
not screamed for help but had given her consent I would have taken my turn to
have sexual intercourse with her. But I did not have my turn yet. I was waiting. I
do not know whether the girl was a good or a bad girl. She did not at any time
throughout the evening ask for money.
When asked why he had run away towards the direction of darkness instead of
running back to his car where his friends were, or to the Lake Club premises where
it was brilliantly lighted up, plaintiff replied:
I thought Sulaiman had raped the girl. Since he has committed a criminal offence I
did not want to get myself involved in his offence. With that in mind I thought the
best thing for me was to run away. I ran away for the purpose of escaping from
every body. I was frightened at that time. I did not want to be arrested or detained
by the police. I was trying to escape regardless whether from the police or anyone
else.
He went on further:
So I ran away by sliding down the slopes of the hill. I heard a shot being fired. I did
not hear anyone asking me to stop running away. After hearing the first
shot I continued to run to escape. I did not care whether the man who fired that
shot was or was not a policeman as I wanted to escape. That shot was fired from
behind me. I do not know how far behind me that man was when he fired that
shot. That shot did not deter me from running away. The man who had fired that
shot could be the policeman or anyone else. What was in my mind at that time was
512 Mahmood v. Government of Malaysia & Anor [1973] 1 MLRH

to escape and to run away. If there was a shout asking me to stop running away, I
would still run away, because my intention was to run away and escape from being
arrested.
Re-examination of plaintiff by his Counsel threw even more light to disprove
plaintiff's allegations contained in his statement of claim in which he alleged that
he ran away because he had heard a commotion. His replies under reexamination
belied his allegations. They showed that he ran away for fear of being arrested by
the police. He had thought that his partner in pleasure, Sulaiman, had raped the
woman and he did not wish to be arrested together with him. So he ran away. This
is what he said under reexamination:
When I was being cross-examined by Razak I did say that Sulaiman might have
committed a criminal offence. I did not see the actual rape being committed but I
thought a criminal offence could have been committed because the girl cried and
screamed for help.
When the girl screamed I knew something bad had happened. I did not know
whether rape had actually taken place or not. I was afraid I would be involved in
the matter. Sulaiman might have raped the girl. From the time when I heard voices
coming towards us, and saw torch lights shining on us, I immediately ran away. I
have no time to think whether the people coming were policemen or not. I could
not say whether the beams of light had or had not been shone at us. I went to the
Lake Gardens but I have no prior intention to have sexual intercourse with either
of the girls. We picked up the two girls at Mara Building in Jalan Tuanku Abdul
Rahman. Mara Building has many offices where girls worked. When we picked up
these two girls at Mara Building we did not plan to have sexual intercourse with
them. Neither have we such intention at the restaurant in Brickfields. While in the
car there was no discussion about sexual intercourse. I do not know whether
Sulaiman had any such plan.
Plaintiff's witness Sulaiman admitted taking the girl out of the car but denied
taking her into the bush. He said he took her to a "higher ground" under some
trees. Although he was there alone with her for half an hour, he did nothing to her.
His hands never touched her. He denied interfering with her breasts or her private
part or trying to take her knickers off. He denied raping or molesting her. He could
not give any reason why the girl should scream for help, other than saying that she
might have screamed on seeing her girl friend and plaintiff coming towards her. He
however admitted that when plaintiff came, plaintiff did advise him to go home but
denied that he told him not to use force on the girl. At that moment he said he
heard footsteps and people coming towards them, shouting "Jangan Lari, Jangan
Lari" meaning "Don't run, Don't run." He became frightened and ran away leaving
the girl behind. He ran up a hill and then down its slopes towards the direction of
Jalan Parliament. While running he heard the sound of a gunshot. He continued to
run as fast as he could. After crossing a road he heard another shot. He then
stopped running because he felt something had gone wrong. He then saw two
[1973] 1 MLRH Mahmood v. Government of Malaysia & Anor 513

persons. Plaintiff was lying on the ground.

Sulaiman was an unmarried young man, physically strong and well built, aged 28
and weighed 160 lbs. For a Malay he was exceptionally tall almost six feet in
height. He is a technician employed in the Royal Malaysian Air Force. In this Air
Force he carried firearms. He said he could shoot well. He did not appear to me to
be a person who could be easily frightened. When he ran away leaving the girl
behind he did not run back to his car which according to him was only 30 to 40
yards away and in this car were his two friends Moktar and Aziz, who could help
him. When he was asked why he chose to run away into the dark places away
from his car and his friends, he could give no satisfactory explanation. This is what
he said:-
I ran away from the car. I did not run towards the car. I agreed that I have two
men friends in the car who could help me. I ran away from them. I did not run
away in order to escape from being found by the police. I deny I tried to escape
from the police. I deny I molested the girl. I deny that when the girl screamed the
police came with their torch lights shining. I deny I ran away for fear of being
arrested by the police.
When he was questioned by the prosecution through the Court, he reluctantly
admitted:
If one was chased by robbers one would naturally run towards the Lake Gardens
buildings and its car park where both places were well lighted up. If one had
wanted to escape from the police one would naturally run away to a dark place
where the police could not find him.
Sulaiman did not impress me to be a witness of truth. He was evasive in his
answers and prevaricating in his replies. The reasons given by him for taking the
girl to that lonely spot in the early hours of the morning, his description of his
behaviour towards her while they were in the bush or under the trees, his
explanation why the girl should scream for help, and his story why he ran away
did not appear to me to be true and I do not believe them.
The defence of the second defendant was a simple one. He was at all relevant times
a detective constable attached to the Criminal Investigation Section of the Police
Headquarters. He was 30 years of age and had been in the Police Force for ten
years.
Just before midnight on 3 January 1968 he received instructions to go to the Lake
Gardens. As there were frequent cases of rape, robbery and thefts in the Lake
Garden areas he was instructed to carry out patrol duties there. Including him
there were five detective constables assigned to carry out such duties. He and
Abdul Aziz were in one party and the other three in another. All five were given
firearms and torch lights. The beam of second defendant's torch light could reach a
distance of 200 yards. While patrolling, and laying in ambush near a tree he heard
screams. They were screams of a woman in distress calling for help. It was then
514 Mahmood v. Government of Malaysia & Anor [1973] 1 MLRH

2.20 am He and Abdul Aziz rushed towards the direction where the screams came
from and shone their torch lights. He saw plaintiff and another Malay running
away from the scene. He disclosed his police identity and shouted to them to stop.
He shouted to them several times in Malay, asking them to stop and not to run
away otherwise he would shoot with his gun. They ignored his warning and
continued to run away. After a long chase he then fired a warning shot towards
their direction. They continued to run away. He shouted to them again ordering
them to stop running away. As they did not stop, he fired a second shot aiming at
their legs. The two men were running one after the other. This second shot hit the
man running behind the first man, and that man was the plaintiff. That shot
brought plaintiff to a stop but the first man escaped and disappeared into the
darkness.
When he was cross-examined why he had used his gun second defendant's
explanation was as follows:
The plaintiff was shot by me. The act of shooting is a dangerous act. I shot at him
to prevent him from running away. I aimed at his legs. To prevent him from
running away and after I had given him the warnings, it would be necessary to
shoot if he continued to ignore my warnings. He was trying to escape by running
away into the dark places. I do not know if plaintiff was a dangerous man. I
suspected and believed that he had committed rape or robbery or grievous hurt to
the woman who had screamed.
As he was running away from the place where the screams came from, I suspected
that he had committed the offence of rape, robbery or hurt or stabbing. He might
have used a dangerous weapon in assaulting and causing bodily injuries.
The plaintiff ran away from the place where the screams of distress came from. He
refused to stop, although I had shouted to him to stop. What else can I do. If
plaintiff was innocent he would have stopped when a policeman had asked him to
stop. I wanted to arrest him and that was why I chased after him. He kept running
away in spite of warnings. After he was shot he fell down on the grass verge, I ran
up to him. On seeing him bleeding, I asked a fellow policeman to take him to
hospital in his patrol car. As he had fallen down he was as good as being arrested.
He was in our custody.
If I had not shot him he would have run away and escaped into the darkness.
The Deputy Superintendent of Police BD Henry testified that since November
1967 it was his duty to detail policemen to patrol the Lake Gardens areas. This was
due to many armed robberies taking place there. Between 5 November 1967 and 30
December 1967 a period of only 55 days there was a total of nine robberies and
thefts. If Jalan Duta area was included the number of robberies and rapes would be
considerably more. The victims were usually courting couples. On the night of 3
January 1968 he detailed Ahmad Rasul (second defendant) and Abdul Aziz and
three others to patrol the Lake Gardens areas. They were given firearms and torch
[1973] 1 MLRH Mahmood v. Government of Malaysia & Anor 515

lights.
When he was cross-examined on second defendant's duties he said:
If the patrol men heard screams of distress from a woman, it is their duty to go to
her assistance, and if they see persons running away from the scene they should
apprehend them. They are permitted to open fire with their firearms to prevent
them escaping from arrest after having given them the necessary warning not to
run away. They are entitled to shoot if their warnings were ignored especially if the
patrol men suspected that the persons running away had committed rape, robbery
or stabbing. If a woman scream for help, I would suspect that she was being raped,
robbed, stabbed or murdered.
Before they shoot, they must first give warning to the persons running away and to
shout to the fugitives to stop running away or else they would shoot. Those
warnings are sufficient. If I heard a woman screaming for help and policeman
shouting, asking people not to run, I would remain stationary and not run away.
It is only natural for policeman who heard a woman screaming for help to
converge to that direction where screams came from. Because of the frequency of
the serious offenses being committed, the patrolmen were briefed to apprehend the
offenders and take all reasonable steps including use of firearms to prevent the
offenders from escaping or running away.
In order to prevent them escaping, one should as far as possible aim to shoot at
their legs. Policemen are not selected on marksmanship but on other
qualifications." "The policeman must give warning before shooting. Under our
regulations it was not necessary to fire a warning shot before shooting at them."
The regulations I mentioned are the Departmental Police Regulations."
On the evidence before me I find that the plaintiff has failed to prove his allegations
that he had been shot by the second defendant negligently and without warning.
Both Counsel have also referred me to certain provisions in the Criminal
Procedure Code. Under the Chapter on Arrest, Escape and Re-taking, ss. 15 and
23(i)(a) read as follows:
15 (i) In making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested unless there be a
submission to the custody by word or action.
(ii) If such person forcibly resist the endeavour to arrest him or attempt to evade
the arrest such officer or other person may use all means necessary to effect the
arrest.
(iii)Nothing in this section gives a right to cause the death of a person who is not
accused of an offence punishable with death or with imprisonment for life.
23.(i) Any police officer or penghulu may without an order from a Magistrate and
516 Mahmood v. Government of Malaysia & Anor [1973] 1 MLRH

without a warrant arrest -

(a) any person who has been concerned in any offence committed anywhere in
Malaysia which is a seizable offence under any law in force in that part of
Malaysia in which it was committed or against whom a reasonable complaint has
been made or credible information has been received or a reasonable suspicion
exists of his having been so concerned;.
Under s. 15(ii) it is evident that a police officer is entitled to use all means
necessary to effect the arrest of a person attempting to evade arrest. This section is
similar to s. 46(2) of the Indian Code of Criminal Procedure 1898. D v. Chitaley*
commenting on the meaning of the words "Use all means necessary to effect the
arrest " has this to say:-
On the other hand, the person effecting the arrest is justified under sub-section (2)
of the section in using so much violence as is necessary to effect his object, with
this qualification, namely, that his right does not, except in the two cases
mentioned in sub-section (3) extend to causing the death of the person sought to be
arrested. Thus, where a chowkeedar seeking to arrest a fugitive thief, seeing no
other means of capturing him, wounded him with a spear, it was held that he was
justified in doing so. Similarly, a shot fired over the head of a suspect, a dangerous
person, in order to effect his arrest, was held to be justified. Where a supposed
offender took shelter in his own house and would not come out when called by the
police officer desiring to effect his arrest it was held that the latter was justified in
firing a shot at the house as last extremity and committed no offence if the shot
fired by him killed the offender who could not be seen from the place from which
the officer fired."
In the Chowkeedar Sutherland weekly Reporter, Vol. 2 p. 9 case where
Chowkeedar speared and wounded a fugitive thief to prevent him from escaping,
Mr. Campbell J said:
it seems to me that the chowkeedar, seeking to arrest a fugitive thief, and who sees
no other means of capturing him, is fully justified in using so much violence as is
necessary to effect this object.
Earlier on in his judgment, his Lordship said:
I gather from the judgment and the previous proceedings, that the prisoner in good
faith took the complainant for a thief (whether he really was so or not, does not
appear), whom he, as a chowkeedar, was bound to capture. If there was any
mistake regarding the fact of complainant's being a thief, it was a mistake of fact,
and not a mistake of law, and prisoner is entitled to the benefit of ss. 76 and 79 of
the Penal Code . "Mr. Glover J concurring said:
Now, it is admitted by the Judge that the prisoner did not use his spear until he saw
no other means of securing the fugitive, for whose escape he, as a chowkeedar,
would have been held responsible, and the wounds inflicted do not appear to have
[1973] 1 MLRH Mahmood v. Government of Malaysia & Anor 517

been in any way dangerous. Taking all these circumstances into consideration, I
think, with Mr. Campbell, J that the violence used by the prisoner was justifiable,
and that the sentence of one year's rigorous imprisonment passed upon him should
be reversed.
Section 23(i)(a) of our Criminal Procedure Code empowers a police officer to
arrest without warrant or order from a Magistrate, any person who has been
concerned in a seizable offence or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists of
his having been so concerned.
This s. 23(i) is similar to s. 54(1) of the Indian Code of Criminal Procedure. DV
Chitaley ibid pp. 230, 231 (3) commenting, on the meaning of the words
"Reasonable suspicion exists of his having been so concerned" says:
A police officer can arrest a person without warrant where a reasonable suspicion
exists of his having been concerned in any cognizable offence. Where a police
officer suspecting that certain pieces of cloth which a man was carrying early in the
morning were stolen property, went to him and questioned him and having
received unsatisfactory answers arrested him, it was held that he was entitled to do
so. Where a person was found armed, lurking at midnight in a village inhabited by
persons well known to the police as professional dacoits, it was held that there was
a reasonable suspicion against the person of his being concerned in a cognizable
offence. But this does not mean that the police are limited only by their own
discretion as to what persons they may arrest without warrant. Their powers in this
respect are, as has been seen in Note 2 strictly defined by the Code.
In order to act under the first clause, there must be a reasonable complaint or
reasonable suspicion of the person to be arrested having been concerned in a
cognizable offence. What is a reasonable complaint or suspicion must depend
upon the circumstances of each particular case; but it should be at least founded on
some definite fact tending to throw suspicion on the person arrested, and not on a
mere vague surmise. The words 'reasonable suspicion' have been held to mean a
bona fide belief on the part of the police officer that an offence has been
committed, or is about to be committed. Where there is personal enmity between
the police officer concerned and the person arrested, a very high standard of
evidence would be required to prove that the police officer acted in good faith.
In Mahadeo Rai and Ors. v. King Emperor AIR 1924 All 201 a girl complained to
the police that she had been raped by Mahesh and Ram Lal. The Sub- Inspector
deputised certain constables to arrest them. When these constables reached the
scene, the two persons concerned ran into a house and when the constables
attempted to enter the house to effect the arrest, they were stopped by the
applicants on the ground that the constables were not armed with a warrant of
arrest and were not in their uniforms. Kanhaiya Lal J held that:
even if they were not in uniforms and had no warrant of arrest with them they had
518 Mahmood v. Government of Malaysia & Anor [1973] 1 MLRH

sufficient authority under s. 54 of the Criminal Procedure Code to arrest Mahesh

and Ram Lal on the suspicion of having committed the offence with which the girl
was charging them.
In Romesh Chandra v. Emperor AIR [1914] Cal. 456 a constable had been told of
certain occurrences on the road and was led to the spot where he found the men
had disappeared. He was told by the occupant of a hut that no one was in the hut,
but the constable saw a man "spring" from the south hut to the north hut. He
followed that man through the open door and found a number of persons sitting
together in a room in the dark. The constable was about to look under a Machan to
see if anyone was hiding there when one of the men sitting there made a statement
to him. He then removed a basket which was under the machan and found a gun.
It was contended that the entry into the hut made by the constable was illegal.
Beachcroft J held that in view of these suspicious circumstances the constable had
reasonable suspicion that a cognisable offence had been committed, and under s.
54 of the Criminal Procedure Code the constable had sufficient authority to effect
an arrest and the entry was therefore not illegal.
After examining these and other authorities I come to the conclusion that if there
exist sufficient grounds to raise a reasonable suspicion in the minds of a police
officer that (i) a seizable offence has been committed and that (ii) the persons seen
running away from the scene are concerned in its commission, he may arrest them,
and may after disclosing his police identity and after issuing the necessary
warnings take all steps including the use of firearms as a last resort, to prevent
them from escaping. Should such persons in attempting to escape ignore such
warnings and are injured they have themselves to be blamed. A police officer
cannot however use more force than is necessary to effect their arrest or capture
nor can he cause their death unless the alleged offence is one punishable with death
or imprisonment for life. The question whether there existed sufficient grounds to
raise such a reasonable suspicion, is a question for the Court to decide.
In the present case the following circumstances in my opinion would raise such a
suspicion in the minds of a prudent man and even more so in the minds of a police
officer who has had knowledge of the frequent occurrences of the offence of rape,
robbery, stabbing or assault committed against courting couples in the Lake
Gardens and Jalan Duta areas. The circumstances are these:
(a) A woman was heard crying and screaming for help in the early morning hours
of 2.20 am in or near the areas where many robberies and rapes had recently taken
place.
(b)So much so that the Security Department of the Police had to detail special
constables to patrol these areas.
(c)On hearing such distressing screams in such a place and at such an hour it is
quite natural, as the Deputy Superintendent of Police had put it, for any reasonable
person to suspect that the woman screaming was being raped, robbed, stabbed or
 [1973] 1 MLRH Mahmood v. Government of Malaysia & Anor 519

murdered.
(d)Even the plaintiff himself had suspected that the screaming woman was being
raped by Sulaiman.
(e)When the police officer ran towards her direction he saw two persons running
away from the scene.
(f) They were running away towards the direction of darkness to escape.
(g)Inspite of police warnings asking them not to run they ran away as fast as their
legs could carry them, climbing up a hill and scaling down its slopes.
(h)Inspite of the warning shot being fired at them, they continued to run away to
escape.
On the evidence before me I am satisfied and find that there existed sufficient
grounds to raise a reasonable suspicion in the minds of the second defendant that
(i) a seizable offence has been committed and (ii) that the two persons (plaintiff and
Sulaiman) seen running away from the scene were concerned in the offence and
that under s. 23(i)(a) of the Criminal Procedure Code , second defendant was
empowered to arrest them and under s. 15(ii) he was entitled to use all means
necessary to effect their arrest and capture. In the circumstances of this case second
defendant was not negligent and was justified as a last resort to fire the second shot
to effect the plaintiff's arrest, otherwise he would have escaped and disappeared
into the darkness as his companion did.
I find as a fact that the plaintiff knew that the person asking him not to run away
was a policeman and that inspite of his repeated warnings he chose to continue to
run away to escape. He also knew that if he did not stop running away he would be
shot.
The suit is accordingly dismissed with costs. In view of this it is unnecessary for me
to decide the question of damages claimed by the plaintiff.
Suit dismissed.

Powered by TCPDF (www.tcpdf.org)