1. Muhammad Afzal Zullah, J.--Fans Ahmad, aged 32 years and Hashim Ali, aged 25 years, two brothers have been convicted under section 302/34, P. P. C, and each one of them has been sentenced to transportation for life by the learned Additional Sessions Judge, Lahore, at Kasur vide his judgment, dated 19-12-1967 ; for the murder of Muhammad Siddiq, their co- villager. Both the convicts have filed Criminal Appeal No. 19 of 1968. Ahmad Din, the father of the deceased, has also filed Criminal Revision No. 47 of 1968 for the enhancement of the sentence, lt was admitted to hearing on 12-3-1968. Both the matters are being disposed by this judgment.
2. The prosecution case, as disclosed in the statement of Isa (P. W. 8) who is an eye-witness, is as follows On the day of occurrence which took place on 10-10-1966 at about 6-30 a.m., the witness went to take bath in the village mosque of Ahl-e-Hadith. Muhammad Siddiq deceased was also taking bath in the same mosque. After the bath the deceased left the mosque and started towards his house. The witness followed him at some distance. When the deceased reached near the house of Bahadur Hajam, the witness saw Yousaf (P. W. 13) and Arif (not produced) near a banyan tree.
3. Suddenly, the two appellants appeared from the side of a kikar tree. Faiz appellant caught hold of the deceased while Hashim appellant gave a knife blow on his neck. Hashim also caused injuries on the chest and wrist of the deceased. The witness and Arif and Yousaf raised an alarm whereupon the appellants ran away. The deceased staggered towards his house in front whereof he fell down. The witness brought some water for him but he could not drink it and died within five or six minutes. Ahmad (P. W. 7), the father of the deceased, came there, learnt about the incident from the witnesses and went away to Police Station Pattoki which is at a distance of 5J miles, where he lodged the report (Exh. P. A.) at 8 a.m., which was recorded by Muhammad Khan, A. S. I. (P. W. 14).
4. The motive for the crime, as disclosed by Ahmad Din P. W. is that there are two parties of Ahl-e- Hadith in the village* namely, Bhopewal ; but there is only one mosque for both the parties. One party is led by Faiz appellant and Suleman Lambardar while the other is headed by Ahmad Din and his brother Muhammad Ilyas (P. W. 6), Moulvi Abdul Ghafoor (P. W.3) was the Imam of the mosque for the last 4/5 years. The party of the accused wanted to oust Moulvi Abdul Ghafoor from the mosque while that of the deceased wanted him to continue. The accused party wanted Moulvi AbdulGhafoor to bereplaced by MoulviNazir Ahmad and the complainant party resisted it. One month prior to the occurrence, Ilyas, Moulvi Abdul Ghafoor P. Ws. and Faiz Ahmad appellant were sitting under the banyan tree. Moulvi Nazir Ahmad happened to pass near that place. On the asking of Faiz appellant, he told him that he was going to offer Junta prayer in another village named Gaga, lt appears that Moulvi Nazir Ahmad would not have liked to offer his prayers as muqtadi of Moulvi Abdul Ghafoor. Faiz appellant told Moulvi Nazir Ahmad that he should lead the prayer in the village mosque and that he would see that no body opposed it. At the same time he used some abusive language with reference to those who were likely to obstruct Moulvi Nazir Ahmad ; meaning thereby the complainant party. On this Ilayas P. W. objected and there ensued an altercation between Faiz and Ilyas. They grappled with each other but were separated by Moulvi Abdul Ghafoor. "Thus Ilyas P. W. was insulted". A day prior to the occurrence, Faiz appellant passed near the house of the deceased who in company of his cousin Muhammad Shaft, a son of Ilyas P.
5. W. assaulted him. Isa P. W. rescued Faiz appellant. Hashim appellant arrived there. Though he is not alleged to have done anything in this incident, yet it is asserted by Ahmad Din that when both the appellants left the place they said that they would lake the revenge very soon".
6. Muhammad Khan A. S. I. having reached the spot conducted the usual investingation. He collected blood-stained earth "from the place of occurrence" vide memo. (Exh. P. B.). He also Faiz collected blood-stained earth from the place "where the dead ]itate . , body was lying" vide memo. (Exh. P. C.). Raja Muhammad Iqbal I______ S. I. (P. W. 9) partly investigated this case. He arrested both Muhammad. the appellants on the same day, i.e., of the occurrence from Pattoki Hospital, Hashim appellant was injured. Shirt (P. 10) " and banyan (P. 11) which were blood-stained were removed from his body vide memo. (Exh. P. H.).
7. They were not made into a sealed parcel. On 12-10-1966 Hashim appellant led to the recovery of knife (P. 2) from his house which was taken into possession vide memo. (Exh. P. D.). This knife, on analysis, was found to have been stained with human blood.
8. On autopsy conducted on 11-10-1966 at 8 a.m. Dr.Muhammad Aziz Qureshi, Medical Officer, Chunian, found the following injuries on the dead body which was of a well-built man ofl 9 years wearing a blood-stained white Malmal shirt, a white bloodstained bunyan half-sleeved and white silken chadar blood-stained as a loin-cloth :-- "(1) A stab wound 3/4"x 1/3" and 3^" deep in the downward and inward direction over the middle part of the right side of the neck 3" below right ear. The neck blood vessels and muscles have been injured.
(2) A stab wound 3/4"x 1/3" and deep into the chest cavity over the inner part of the right supraclavicular region just above the clavicle. The wound was directed downwards and to the left.
9. There were corresponding cuts in the bttnian and the shirt he was wearing.
(3) An incised wound l"xl/4" and bone deep just above wrist-joint outer part." ?
10. On opening the chest cavity, the upper lobe of the right lung was found cut to a depth of 3/4". The oesophagus in the thoracis part had also been cut. The other small thoracic vessels other thau aorta were also injured. The stomach contained five ounces of dark blood. Large and small intestines contained faecal matter and chyme respectively. Bladder was full of urine. Death was due to shock and haemorrhage as a result of injuries 1 and 2 which were caused with a sharp- edged weapon and were sufficient in the ordinary course of nature to cause death. Injury No. 3 which was simple was caused with a sharp-edged weapon. The death occurred within half an hour of the injuries and the time . that elapsed between death and post-mortem was 18 to 36 hours.
11. After the post-mortem examination the clothes of the deceased "signed by the doctor" were handed over to Abdul Ghafoor, F. C.
12. Dr. Muhammad Amin, Assistant Medical Officer, Civil Hospital, Pattoki, examined Hashim appellant on 10-10-1966 af 9 a.m. and found the following injury on his persons "1. An incised gaping wound of 51" x 1|" x 1/2'semilunar in shape situated on the front axillary left side of chest in its lower part 3" above the anterior superior Illiac spine.
13. The injury was kept under observation but was declared on 12-10-1966 as simple in nature. It was caused within 24 hours with a sharp-edged weapon. The injured accused had come to the hospital at 9 a.m. The doctor handed over to the police the shirt (P. 10) and bunyan (P. 11) which were removed from the person of the appellant. The recovery memo. (Exh. P. H.) is signed by the doctor.
14. Both these garments bore cuts and were blood-stained. The police, vide application dated 13-10- 1966 (Exh. P. J.) asked the doctor (after the demonstration of Hashirn appellant wearing the bunyan and shirt with cuts thereon) to report whether the injury could be suffered from a friendly hand as according to the police the cuts did not correspond with the injury. On this the doctor replied vide (Exh. P. J./l) of the same day that in his opinion the injury in question "can be self-suffered. The cut marks on shirt and underwear do not correspond with the wound." It needs to be mentioned here that in Exh. P. J. the police informed the doctor that according to their investigation Hashirn appellant "was a murderer" and that "he did not suffer any injury at the spot from anybody". In cross-examination the doctor stated that as the injury was on the vital part, therefore he preferred to keep it under observation and to wait and see if there was any complication. Ultimately, he however did not find any complication, therefore the injury was declared simple. He also stated that grievous injury on a vital part of the body, generally speaking, cannot be self-inflicted. When asked as to why he treated this injury as on vital part, he answered thus: "The injury was situated on the wall of chest and in the chest cavity, they are vital parts". He admitted that it was possible that the injury caused by a person may have variation on the corresponding cuts on the garment when it is loose. He, however, qualified this statement by saying that according to him there could not be much difference in the dimensions of the cuts on the clothes and the injury. Finally he opined that "the possibility cannot be ruled out that injury may have been inflicted by an enemy hand." He admitted that he had not, before the enquiry by the police, made any note that the injury could be self-suffered. In the light of these admissions in cross-examination with regard to the possibility of the injury having been inflicted by an adversary, it is necessary to reproduce what the witness stated in examination-in-chief as to the reason why he earlier thought that it could be self- suffered. It is that : "The cuts on the shirt do not correspond with the injury and as such in my opinion the injury on the person of the accused can be self-suffered".
15. At the trial, Isa and Yousaf P. Ws. supported the prosecution case as eye-witnesses. Muhammad Arif, who it appears was an independent witness, was given up by the prosecution as won over. The recovery of knife (P. 2) was sought to be proved by Isa and Raja Muhammad Iqbal, S. I. As noted earlier, the recovery of shirt (P. 10) and bunyan (P. 11) is proved by Raja Muhammad Iqbal and Dr. Muhammad Amin. The motive was sought to be proved by Ahmad Din, Isa and Ilyas P. Ws.
16. When examined under section 342, Cr. P. C. Faiz appellant denied his presence at the spot and attributed his implication in the case to the enmity with the P. Ws. He did not deny the party faction in the Ahl-e-Hadith of the village and his having belonged to one of the parties while the complainant party having belonged to the other ; but he denied that Suleman Lambardar was their leader. He admitted the incident which occurred about a month before the occurrence wherein, on account of his talk with Moulvi Nazir Ahmad, he quarrelled with Ilyas P. W. and insulted him ; but he specifically denied the incident alleged to have taken place a day prior to the occurrence in front of the house of the deceased.
17. Hashim appellant denied knowlege about the party faction and the incident of a month prior to the occurrence. About the attack on the deceased, he denied the allegations by the eye-witnesses and stated that he was employed in Army Medical Corps and had come on leave to his village when, he explained "On the day of occurrence I had gone to the house of Bahadur barber for a shave. I asked him to shave me and Bahadur had just entered his room when all of a sudden Siddiq armed with a knife attacked me upon which I picked up a chhuri lying on the thara of Bahadur and gave injuries to Siddiq in self-defence. Siddiq had given me a knife blow earlier and he wanted to give more injuries to me. I only acted in self- defence. I reached the hospital of Pattoki immediately after the said occurrence and my brother went to report the matter to the P. S. but the report was not recorded and afterwards I was arrested."
18. Hashim specifically admitted that the clothes (P. 10 and P. 11) belonged to him and were removed from his person by Dr. Muhammad Amin.
19. The learned trial Judge rejected the plea of self-defence of Hashim appellant on the grounds : that the cuts on his clothes were longer than the length of the wound on his person ; that the deceased if he had attacked would not have fared so badly as to have caused only one blow ; and that it was improbable that the appellant would have found a chhuri lying on the thara of a barber. He believed the prosecution evidence with regard to the incidents constituting the motive and relying on the eye-witness account and the recovery of the knife from Hashim appellant, he found him guilty for the offence of murder. With regard to Faiz appellant, he came to the conclusion that after taking into consideration the number and nature of the injuries on the person of the deceased he felt convinced that these injuries could only be sustained by the deceased "when he was caught by another". Therefore, he convicted Faiz appellant as well for the offence of murder. He, however, awarded the lesser sentence because according to him the deceased and his cousin brother Muhammad Shafi were the aggressors in the incident which took place a day prior to the occurrence. This gave some provocation to the appellants, therefore they did not deserve the capital punishment.
20. As there is a plea of self-defence against the allege^f^j^s^jipn by the deceased, therefore, question of motive need^j^pp^ul scrutiny. It is an admitted position that both thsjpar^ viifre inimical to each other on the question of the Imamat in the mosque. Both the parties admit that an incident took place about a month before the occurrence in which Ilyas P. W. a real paternal uncle of the deceased was not only insulted but also beaten by Faiz appellant. This beating is specifically mentioned in the statements of Moulvi Abdul Ghafoor (P. W. 5) and Muhammad Ilyas (P. W. 6) who are direct witnesses to the said incident. It is natural to expect that the complainant party would have a grudge against the accused on account of abuse and beating to Ilyas, As to how the complainant party would have reacted in respect of this grudge is clear from the evidence itself.
21. Ahmad Din, who is the brother of Ilyas, when informed about the said insult and beating, asked his son Muhammad Siddiq "to take revenge of the insult of his uncle". After having admitted this he became wiser and tried to dilute the effect thereof by saying that this party had not instructed their youngmen i.e. Siddiq and Shafi the son of Ilyas, to take revenge of the insult ; and explained the inconsistency by asserting that he was "not keeping good memory". The spontaneous admission referred : to above does not appear to be without basis. Ilyas P. W. stated in cross-examination that after the said insult beating when this party met at Juma prayer, he narrated the incident to his brother Ahmad Din P. W., the deceased and his son Muhammad Shafi. He denied having asked his relatives to take the revenge and to teach a lesson to Faiz. This denial, however, is of no avail to the prosecution because the witness had made a statement before the committing Magistrate with which he was duly confronted. The statement made before the committing Magistrate in this behalf is very significant and is as follows :-- "The accused Faiz had gravely insulted me and also beat me.
22. I had narrated this story to my son and my nephew Muhammad Siddiq deceased to teach a lesson to the accused for insulting."
23. The prosecution cannot get out of the position that the deceased and his party wanted to take revenge from "the accused." Therefore, an effort has been made to introduce an incident a day before the occurrence in which, according to the prosecution, the deceased and his cousin with the intention of taking the revenge gave beating to Faiz when he was passing in front of his house.
24. The only conclusion, therefore, that can be reached is that the deceased and or his cousin Muhammad Shafi and other persons of this party had decided about and were looking for taking revenge from the accused for insult and beating to Ilyas P. W. As there was a definite party faction, therefore it would be too much to say that in these circumstances the target of attack would only be Faiz and nobody else from his side, particularly his brother Hashim. It is, therefore, legitimate to assume that there is nothing improbable in the version of the accused that in order to take revenge of the insult and beating to Ilyas, the latter's nephew, i.e. the deceased, attacked him.
25. Probably realizing the above position as going against the prosecution, the incident of a day prior to the occurrence was introduced to shift the motive on the accused. It is obvious that if this alleged incident had not taken place the motive to attack, as discussed above, would have continued to remain with the complainant party. It is necessary, therefore, to examine whether the prosecution has been able to prove beyond reasonable doubt that au incident, as alleged, did take place a day before the occurrence. The two direct eye- witnesses in this behalf are Ilyas (P. W. 6) and Isa (P. W. 8). It is interesting to note that Ilyas P. W. did not state a word about this incident before the committing Magistrate. He was duly confronted with his statement but failed to offer any explanation for this serious omission, lt is doubtful, therefore, that he is a witness to any such incident. Moreover in his statement before the committing Magistrate, Isa P. W., who at the trial claimed to be the other eye-witness of this incident, did not state that it was also seen by Ilyas P. W. He was also confronted with his statement and he did not offer any explanation. It appears, therefore, that Ilyas P. W. is not at all a witness to that incident and he has told a lie about it. Coming now to the statement of Isa P. W., apart from the fact that he appears to be a person who has offered to become a witness for the prosecution of the motive, of the occurrence and incriminating recovery, it is important to note that he did not state a word about this incident in his statement before the police with which he was duly confronted and he did not give any explanation. Thus it is not possible to rely on the statements of these two witnesses to come to a conclusion that an incident did take place a day before the occurrence in which Faiz appellant was beaten by the deceased and his cousin. In reaching this conclusion, we have also taken note of the fact that both the witnesses who deposed about this incident at the trial are closely connected with the complainant party and there is no other independent evidence to show that any such incident took place. We are, therefore, of the view that this incident was introduced only to show that before the occurrence the grudge that the deceased and the complainant party bore against Faiz and his party had lost all its effect because of the revenge that they allegedly took from the accused in this incident ; with the result that in our view till the day of the occurrence the deceased and his party were yet to take revenge from the accused.
26. It is in the above background that 1he claim of the eyewitnesses, namely, Isa and Yousaf, that the appellants launched an unprovoked attack on the deceased, is to be scrutinised while placing it in juxta position to the plea of self-defence. The first question to be examined is whether the two witnesses are of type and character that if they would have seen the occurrence they would concede in favour of defence the allegedly aggressive part of the deceased. The answer is in the negative. Both the eyewitnesses, according to a clear admission by Moulvi Abdul Ghafoor, belong to faction led by Ahmad Din and Ilyas P. Ws. while both the accused belong to the other faction led by Suleman Lambardar and Faiz appellant. The enmity is admitted; therefore both the eye- witnesses are inimical and partisans. Not only this, it has been admitted by Qamar Din (P. W. 4) who is the real brother of Ahmad Din and Ilyas P. W. that both the eyewitnesses are closely related to these three brothers. Yousaf P, W. is the son of Allah Din who is real uncle of Qamar Din, etc. In other words, Yousaf is their first cousin and thus an uncle of the deceased. Mst. Haleema, a real sister of Yousaf, is the wife of Qamar Din P. W. Isa is not less closely related. Mst. Sakina is a sister of aforesaid Haleema. Her husband Ahmad was the son of Ismail whose wife named Mst. Hatan was real sister of Isa P. W. Apart from this, Isa P. W. was a co-accused of Qamar Din P. W. in a case under section 364, P. P. C. in which Abdul Ghani, the maternal uncle of the appellants, was a prosecution witness. As such Isa is also a partisan, inimical and interested witness. Another eye-witness, namely, Arif who admittedly belongs to a different caste and does not appear to have been connected with the parties at least by relationship, has not been examined at the trial by the prosecution. There is no satisfactory evidence to show that he was in any way connected with the accused and, therefore, would have been won over by them. In the background of this case, attempt of the prosecution not to produce such a witness is not without significance. Not only this but it is also to be mentioned that according to Muhammad Yousaf P. W. Abdul Rehman and Bahadur whose houses are admittedly close to the place of occurrence, and other inhabitants of the lane did inform the police about the occurrence. None of them has been produced as a witness. On the contrary, two persons, namely, Yousaf and Isa, have appeared as eye-witnesses who admittedly are not the residents of that lane. In light of the above discussion it is legitimate to assume that the two witnesses are not of the type that if the version of self-defence would have been true they would have conceded the same. It is in these circumstances, when there are parallel versions, that corroboration of statements of such like witnesses from independent sources becomes necessary. The only piece of corroboratory evidence in this case is the recovery of a knife at the instance of Hashim appellant. His learned counsel has frankly stated that in view of the plea of self- defence raised by Hashim it does not make any difference whether he caused the injury with a chhuri claimed to have been picked up from the barber's shop or with a knife which in view of the background of this case he might have kept with him for the purpose of defence; therefore, the recovery of the knife can be treated as having been admitted but it does not in any way advance the case of the prosecution because it equally supports the defence version. We agree with him that the recovery of the knife in this case cannot be treated as a supporting circumstance for the prosecution version only. It is satisfactorily explainable on the basis of the defence version as well.
27. The next question to be examined is whether plea of self- defence raised by Hashim in this case is reasonably plausible so as to be seriously taken note of. We may remark here that the learned trial Judge did not devote the attention to this aspect of the case which it deserved. One circumstance which according to the learned trial Judge is most important and influenced him to a great extent, is that the cut marks on the banyan and shirt of Hashim appellant are longer than the length of the injury on his person. He failed to notice that the clothes were not made into a sealed parcel. It is not in evidence that the doctor signed the cut marks on the two garments at the time of their removal from the body of the accused. The query with regard to these clothes, vide Exh. P. J. was made by the police on the third day of their removal from the body of the accused. In these circumstances one cannot at all be certain that there was no tampering with the cuts on these clothes, particularly in view of the fact that the complainant party and the police know from the very first day that there was a serious injury on the person of JHashim and that the same had been kept under observation by the doctor. It is quite possible that the police waited till 13-10-1966 under the apprehension that the injury might prove either fatal or at least serious ; therefore no query was made till that date. It was only after the doctor had declared the injury to be simple that the police sent the clothes to the doctor for getting an opinion with regard to the question whether the injury could be self- sulfered. This circumstance, that the length of the cuts on the clothes was a little longer than the length of the injury is of no avail to the prosecution. Moreover, it is not impossible to imagine certain positions of the victim and the assailant in which after the injury the weapon may be dragged in such a way as to cause longer cut in the clothes. This circumstance therefore does not in any way negate the defence version. Another circumstance which could go in favour of the prosecution and which was noticed in the statement of the Investigating Officer, was an assumption that on demonstration when Hashim accused was made to wear the clothes, the cuts did not correspond with the injury in so far as its location is concerned. We called for the accused and having made him to wear these clothes, have ourselves seen that the cut on the banyan even in ordinary standing position corresponds with the injury and the cuts on the banyan as well as on the shirt fully correspond with the injury if the left hand is raised and is slightly inclined towards the right. Such a position I in a fight or attack, as suggested by the defence, is not impossible. One cannot be sure as to the manner in which the reflexes at that time work. A strong possibility cannot at all be excluded that the cuts on these two clothes were caused by the same blow and weapon which caused the injury to the accused. In his behalf we may notice that the margins of the cuts of the banyan are fully soaked in blood while those on the shirt are not so soaked. It is not necessary to imagine all the explanations in that behalf. But one explanation offered by the leamed counsel for the appellants in quite plausible, namely, that the banyan is of cotton yarn while the shirt is of artificial yarn. The blood was immediately soaked in the banyan and the same created a smear/smudge on the shirt at the place where it directly came upon the location of injury and by the time the blood had started coming out the cut on the shirt had slipped downward. Although the margins of the cuts on the shirt arc not soaked in blood, there are blood spots around those margins. Considering all these circumstances, we are in no :loubt that the shirt and the banyan were on the body of the appellant Hashim when he suffered the injury, and that it is not ;orrect to say that the cuts did not correspond with the same. Hie learned trial Judge also adverted to the fact that it was mprobable that a chhuri would be lying on the thara of the larber which could have been picked up by the accused to save Iiis life. We attach no importance to this aspect of the matter. As explained by the learned counsel, the accused might have added an embroidery to his plea of self-defence and introduced the c/ihuri from the barber's thara while, in fact, he might have used the knife. And about the other circumstance that because of the deceased having alleged to have caused only one injury to the accused it was not possible to believe that he was the aggressor, we do not want to make any lengthy comment. The substantial injuries suffered by the deceased are two in number. In a fight like the one suggested by the defence, it cannot be said to be an impossible position that the accused after having received an injury might have inflicted two blows on the deceased. It is strange to note that the learned trial Judge, devoted thought to comparatively less important circumstances and did not analyse the nature and location of the injury. It was a gaping wound of little less than 6' with a width of 1 J*. The depth as shown in the formal description of the injury is 1/2". But as noted earlier, according to the doctor, the injury was situated on the wall of the chest and "in the chest cavity" which are vital parts. The injury is of semi-lunar type. The doctor kept the same under observation and declared it as simple on the third day. It is doubtful whether his opinion that the injury was simple is correct. The dimensions, the location and particularly the depth (going to the chest cavity) show that it could be dangerous to life. The doctor also thought on that line and kept it under observation because, as he put it, it was on vital part and he preferred to wait and see if there was any complication. The probe not being possible because of the underlying vital organs (pleura and lung) it is not possible to say that the injury was not grievous. The opinion of the doctor that the injury could be self-suffered was based only on the fact that the cuts on the shirt did not correspond with the injury. We have discussed this aspect above.
28. Under cross-examination, the doctor may have realised his mistake and stated that the possibility could not be excluded that the injury might have been inflicted by an enemy hand. His earlier opinion given to the police, we are sure, must have been influenced by what was written by the police as conclusions in the query (application Exh. P. J.) with regard to the guilt of the accused.
29. After having carefully considered this aspect of the matter, we are of the view that a strong and reasonable possibility cannot be excluded that Hashim appellant suffered the injury in question in the occurrence. In reaching this conclusion we did take serious note of a suggestion by the prosecution that Hashim appellant being a Nursing Orderly might have been able to manufacture this injury. Firstly it is a farfetched possibility ; and secondly the same is negatived by the conduct of the accused. It is in evidence that Hashim was seen going towards Pattoki where the Police Station and the hospital are situate, within 15 minutes of the occurrence and it is also in evidence that he did not lose'any time in reaching the hospital. There was, therefore little time for manufacturing such an injury. Moreover if the same would have been manufactured in a careful manner the injury and the cuts on the clothes would not have been in the position they were ultimately found. We have also taken note of an argument advanced from the side of the State that no blood was found on the thara of Bahadur Barber j therefore the plea of self-defence should be rejected. The conduct of the investigation in this case does not appear to be \absolutely above-board. Therefore we are not certain about the assertion.
30. Secondly, it is clear from the prosecution evidence that blood was not picked up from all the relevant spots : for example according to the P. Ws. there was trail of blood between points 'A' and *B\ The police did not collect the blood from this trail. It cannot, therefore, be said that if it had found some blood on or near the thara of the barber, the police must have taken it into possession.
31. Thirdly, even according to the prosecution case, the place where the deceased is said to have received the injuries does not exactly fall on the normal route in the lane which he should have followed. If he could move aside by few paces or karms even according to the prosecution version, presumable on the basis that in such an occurrence the position of the victim and/or assailant cannot be pinned down, the seme could apply to the defence version. After the accused having received the injury on the thara of the barber, the height of which is not known, both the victim and the assailant might have come down from thara in the lane and there the position would be the sajme as advanced by the prosecution. We, therefore, attach no importance to the contention raised in this behalf. Considering all the circumstances, we are of the view that the plea of right of private defence raised by Hashim appellant finds sufficient support from the medical evidence about the injury suffered by him and other circumstances of the case including the motive and grudge that the deceased had against him.
32. The two eye-witnesses have deliberately concealed the fact that Hashim appellant had suffered the injury concealed the hands of the deceased at the time of occurrence. That being so, it is not possible to rely on their statements. As such it cannot be said that they would have stated the truth. The acceptance of the plea raised by Hashim reacts on the entire prosecution case Therefore, it is not possible to give a verdict in favour of the prosecution that both the appellants participated in an attack on the deceased. The eye-witnesses not having told the truth and there being a strong and reasonable possibility of the defence plea being true, we have no hesitation in extending the benefit of doubt to both the appellants. There are many other infirmities in the statements made by Yousaf and Isa P. Ws. showing that they did not see the occurrence. But in view of the above discussed type and character of the prosecution evidence and the reasonable possibility of the defence plea being true, we do not want to discuss those infirmities.
33. In the light of the above discussion, we hold that the prosecution has failed to prove the charge against the appellants beyond reasonable doubt. Therefore, their appeal is accepted and they are acquitted. They shall be released forthwith if they are not required to be detained in any other matter.
34. As the appeal against conviction has succeeded, therefore no question of enhancement arises.
35. Thus the revision petition filed in this behalf is dismissed. .