ABDUL HAYEE KURESHI, J.-Three appellants, namely, Hajan Shah, Ghous Ali Shah and Rajhi were tried along with acquitted accused Muhammad Bachal by the Additional Sessions Judge, Sukkur for offences under sections 302, 307, P. P. C. Read with section 34, P.P.C. For having caused the murder of one Ibrahim and injuries to Azim Shah and Latif Shah. They were convicted and on each count were awarded sentence of transportation for life and for the offence of murder they were awarded a fine of Rs. 100 or in default one month's R. I. In addition to the sentence of transportation.
Hajan Shah and Ghous Ali Shah have pre--ferred appeals from the jail whereas Bajhi has filed the appeal through Mr. Azizullah K. Shaikh, Advocate, Mr. Nooruddin Sarki has appeared for the State.
The appellants Hajan Shah and Ghous Ali Shah have, in pursuance of their request, also been heard in person.
2. Briefly stated the facts of the case are that Hajan Shah and Ghous Ali Shah are brothers. Hajan Shah was married to Mst. Husna. The said Mst. Husna is the daughter of Latif Shah complainant.
Prosecution witness Azim Shah is the brother of Latif Shah complainant, and prosecution witness Mst. Bhana is the wife of Azim Shah. The deceased Ibrahim is the son of Mst. Bhana and prosecution witness Razu is the brother of deceased Ibrahim.
3. As stated Mst. Husna was married to Hajan Shah appel--lant but Ghous Ali Shah appellant had abducted Mst. Shahzadi, the daughter of one Miran Shah, who is a Sala (brother-in-law) of complainant Latif Shah. After Ghous Ali Shah abducted Mst. Shahzadi, efforts were made by Latif Shah and Azim Shah to get back the girl but without success. For that reason Latif Shah called away his daughter Mst. Husna to his house probably with a view to exert pressure on appellants Hajan Shah and Ghous Ali Shah for return of Mst. Shahzadi.
4. About a week after the return of Mst. Husna to her father, the complainant Latif Shah the incident in this case occur--red. The facts of the incident as disclosed by the prosecution story are-that the three appellants together with acquitted ac--cused Bachal came to the house of Azim Shah and called him out. Hajan Shah, appellant, told Azim Shah to return his wife on which Azim Shah demanded the return of Mst. Shahzadi who had been abducted by appellant Ghous All Shah. On such refusal the three appellants who were all armed with hatchets, at the instigation of acquitted accused Bachal, opened an attack and caused hatchet injuries to Azim Shah who fell down. In the meantime deceased Ibrahim who lived at a distance of about 50 ft. From the house of Azim Shah came up and fell down on injured Azim Shah. The appellants caused him injuries resulting in his death. The complainant Latif Shah who was also present tried to run away but he too was given hatchet injuries by the appellants, so that in the transaction Ibrahim lost his life whereas Azim Shah and Latif Shah received the injuries. This incident took place on 5th April 1968 at 7-30 a.m. A report in regard to the incident was lodged by Latif Shah at Police Station, A. Section, Sukkur which is at a distance of 2-- miles from the sane of occurrence, at 8-15 a.m. This report was recorded by S.H.O.
Mahmood Ahmed and has been produced on record as Exh.
9. The said S.H.O. After recording the F.1.R. Started preparing the mashirnama of the injuries on the person of complainant Latif Shah in presence of mashirs Yousuf and Abdur Razzak and in the meantime deputed A.S.L Allah Dino to proceed to the wardat for investigation, A. S. I. Allah Dino reached the wardat and prepared mashirnamas of injuries of deceased Ibrahim and Azim Shah and referred them to the hospital.
The said A.S.I. Also wrote a letter to the Head Munshi and Third Class Magistrate for recording the dying declaration of injured Azim Shah. He also prepared the inquest report on the dead body of Ibrahim (Exh. 29) and is the meantime S.H.O. Mahmood Ahmed also came up to the scene. The said S.H.O. Prepared mashirnamas of wardat, (Exh. 35) in presence of the mashirs Mohammad Bashir and Sultan Ahmed. S. H. O. Then arrested appellants Hajan Shah and Ghous Ali Shah from their house which was situated across the road on which the dead body was lying, at 9-15 a.m. And from appel--lant Hajan Shah he secured a shirt a vest and loin-cloth which bore stains of blood and from the person of appellant Ghous Ali Shah he secured a bushirt, a vest and a loin-cloth which were blood-stained. The two appellants were wearing these clothes and the seizure was made under a mashirnana (Exh. 26) in presence 4 of the same mashira. At 9-50 a.m. S.H.O.
Mahood Ahmed was led by appellant Ghous Ali Shah to the chappar (shed) inside his house and produced a hatchet which bore stains of blood and this hatchet was secured under mashirnama (Exh. 27) in presence of the mashirs. Immediately thereafter Hajan Shah appellant also produced a blood-stained hatchet from underneath the daddy which was lying in the compound of the house and this hatchet was secured under a mashirnama (Exh. 28) in presence of the same mashirs.
5. Pursuant to the letter of A.S.I., Allah Dino, Mr. Ghulam Dastgir, the IIIrd Class Magistrate, recorded the dying declara--tion of Azim Shah, at Civil Hospital, Sukkur at 1-45 p .m. And this document has been produced in the trial Court as Exh.
7. Since Azim Shah survived the injuries this document cannot be used for any other purpose except for contradicting Azim Shah.
6. Dr. Ghiasuddin whose evidence was brought on record as Exh. 37 examined the dead body of Ibrahim and found the fol--lowing injuries
(1) Incised wound 9' x 1--' x skull bone cut brain matter pro--truding out on right fronto parietal bone and partly occipital region.
(2) Incised wound 1--' x --' x scalp deep on the top of the head in the middle on occipital parietal region.
(3) Incised wound 3' x 2' x muscle deep bone of vertebral injuries on posterolateral junction of left side of middle neck. Vertebra at the level of 6 x cervical puter table of bone cut.
(4) Fracture deformity of left firearm at lower 1/3rd and lower -- junction. Fracture of ulna and radius both occurred.
(5) Lacerated wound --' x --' x muscle deep and chop bone protruding outside on the wound at the back of the left fore--arm at upper wound of injury No. 4.
(6) Lacerated wound --' x --' x skin deep at lower 1/4th junction of the back of left forearm.
(7) A contusion 3' x --' on front of left shoulder.
(8) Incised wound 3' x 1' skin and cartilage of lower -- of the right car extended up to anole of lower jaw.
(9) Incised wound transverse 3' x -- x cutting the muscle right carotid vessels and nerves and vertebra at the level of 5-6" Cervical out partially.
The same doctor also examined injured Latif Shah and found the following injuries on his person
(1) Abrasion 1' x --' x irregular in the middle of front of head.
(2) Deformity of right elbow joint, seen, swelling on the outer side of the joint 3' x 2'.
Azim Shah complainant also had injuries which have been certified by the same doctor and the injuries are as follows:
(1) Incised wound 8 'x --' x bone deep on right of parietal occipital region.
(2) Incised wound in the middle of the back of occipito region 4' x --' x scalp deep.
(3) Incised wound 3' x --' x muscle deep on the back of right scapula on lateral border.
(4) Incised wound 2' x --' skin deep on back of middle of right forearm.
It maybe mentioned that appellants Hajan Shah and Ghous Ali Shah were also examined and they were found to be having the following injuries: Hajan Shah:
(1) Lacerated wound 1' x --' x scalp deep on left side of frontal bone.
(2) Lacerated wound -- x --" x scalp deep on right parietal bone.
Ghous All Shah:
(1) Lacerated wound 1--' x irregular shape x --' x skin deep in the middle of frontal region of the head.
(2) Lacerated wound 1' x --' x above left eve-brow.
(3) Incised wound --" x 1/8' x superficial skin deep on the left side of the cheek.
7. At the trial the prosecution examined the complainant Latif Shah, P. W. 2, Mst. Bhana, P. W. 3, Mst.
Husna. P. W. 4, Azim Shah, P. W. 5 and Razoo, P. W. 6 as eye-witnesses to the occurrence. In addition the prosecution also produced evidence relating to recovery of blood-stained hatchet and clothes from each of the appellants Hajan Shah and Ghous Ali Shah. In addition, Mr. Ghulam Dastgir, IIIrd Class Magistrate was exa--mined to prove the dying declaration of Azim Shah and also the memo.
Of identification of acquitted accused Bachal. The rest of the evidence is of the medical officer, the Investigating Officer and of formal witnesses.
8. The defence of appellants Hajan Shah and Ghous Ali shah was one of denial but they pleaded that Azim Shah, deceased Ibrahim, P. W. Razoo along with Miran Shah, Anwar Shah and Nadir Shah had come to their house armed with hatchets and lauds and forcibly abducted Mst. Shahzadi and in an attempt to save her both of them received injuries at the hands of the complainant party.
They, however, stated that they were un--armed and had caused no injuries. Both of them have denied the recovery of hatchets but owned the blood-stained clothes, explaining that the clothes had become blood-stained on account of the injuries that they had sustained at the hands of the complainant party. They further stated that Mst. Shahzadi had not been abducted but she was married to Ghous Ali Shah and since this marriage was not liked by the complainant party they had attempted to abduct Mst. Shahzadi. Appellant Bajhi denied all 'knowledge of the incident and stated that he had no concern, whatsoever, with appellants Latif Shah and Ghous Ali Shah. He however, attributed false implication owing to a quarrel which he had with Latif Shah on account of collusion of their tongas, two days before the incident. Appellant Bachal had also denied knowledge of the incident and pleaded that he had no concern with the co-accused. He further said that he had married Mst. Lai against the wishes of Azim Shah and Latif Shah and had, therefore, been implicated. He pleaded alibi and set up a case that he was with his officer, the District Food Controller, at the time of the incident.
9. Appellants Hajan Shah and Ghous Ali Shah examined Mst. Shahzadi in their defence and the evidence of Mst. Shahzadi is that Ibrahim deceased along with prosecution witnesses Latif, Shah, Azim Shah and Razoo had gone to the house of Ghous Ali Shah with Nadir Shah and Miran Shah and they dragged her out of the house on which the appellants Ghous Ali Shah and Latif Shah came out and both of them were given hatchet blows by this party of intruders. She claimed to be the wife of Ghous Ali Shah:
10. The acquitted accused Bachal also examined witnesses. Muhammad and Hashim in his defence to prove that at the time of the incident he was not present on the wardat.
11. Before discussing the evidence in this case it will be pro--per to advert to another matter involved in this case that has emerged out of the judgment of the trial Court. The trial Court in its judgment after framing the points for determination pro--ceeded to discuss the evidence against each one of the appellants and the acquitted accused. Towards the close of the judgment the trial Court recorded as follows: -- "Therefore it is quite clear that the accused are guilty under sections 302/34 and 307/34, P. P. C.
Except accused Bachal. For the reasons stated in the body of the judgment I find that the accused Bachal is not guilty under any of the offences. He is accordingly acquitted."
In the very next para the trial Court recorded that "the three accused persons, Hajan Shah, Latif Shah and Bajhi were found guilty under section 302/34, P. P. C. And tinder section 307/34, P. P. C.
And stand convicted". In the last para. However, the trial Court recorded: "Accordinglythe three accused persons are sentenced to transportation for life and to pay a fine of Rs. 100 in default further one month's R. I. Under section 302, P. P. C. They are further sentenced to transportation for life under section 307/34 P. P. C."
Thereafter the committal warrants of the three appellants were signed by the trial Court and each one of them was sent to Jail. In pursuance of the warrant of conviction appellant Ghous Ali Shah is undergoing sentence and has also filed an appeal and in pursuance of his re guest to be heard in person he was called from the jail and heard.
12. The name of Latif Shah has been underlined in the proceeding paragraph because it would appear that the trial Court instead of mentioning the name of Ghous Ali Shah has written the name of complainant Latif Shah as a convicted person.
13. After their conviction all the three appellants filed their appeal from jail. The office of this Court pointed out the mistake in mention of the name of Latif Shah instead of Ghous Ali Shah in the judgment. On such a mistake being pointed out Mr. Justice Abdul Kadir Sheikh and Mr. Justice Ghulam Safdar Shah ordered that Latif Shah should be relieved of the sentence of transporta--tion and Mr. Justice Abdul Kadir Sheikh in the order of admission observed as follows: "I am doubtful if this mist a can be treated as clerical error which can be corrected by him (Sessions Court). This Court even at this stage has ample powers to correct this mistake in the exercise of suo motu powers,"
Mr. Justice Ghulam Safdar Shah also agreed with Mr. Justice Abdul Kadir Sheikh.
14. The question that arises is whether this mistake in the mention of the name of complainant Latif Shah instead of appellant Ghous Ali Shah as a convicted person was a mistake of clerical nature and a result of inadvertence. On considering the facts and circumstances of this case there is no doubt, whatsoever, that the mistake is of a clerical nature and misdescription purely a product of inadvertence. On a fair reading of the judgment it is quite clear that the trial Court acquitted Bachal and convicted the three accused persons and the three accused persons were the appellants including appellant Ghous Ali Shah. Moreover, appel--lantGhous Ali Shah was committed to prison under a warrant signed by the same learned Judge.
15. The question then for consideration is whether this Court can correct this error in its appellate jurisdiction or in--herent jurisdiction. One of the ways apart from this Court correcting the error itself was to remit the case back to the trial Court for correction of error but this has not been considered advisable for the reason that the learned Sessions Judge who pre sided at the trial is now transferred to another district and for the purpose of enabling him to make this correction a long course will have to be followed so that he could exercise jurisdiction within the District where this case was tried. The other difficulty is that by such remittance of the case, by this Court, the trial Court will have to write another judgment which shall take effect only from the date on which it would be written and in that case the sentence of about three years which the appellant Ghous Ali Shah has already undergone would not and could not be con--sidered by the trial Court in the matter of inflicting sentence be--cause for an offence under section 302, P. P. C. The minimum sentence is transportation. This would have caused prejudice to appellant Ghous Ali Shah.
16. The question then for consideration is whether this Court by virtue of its powers under sections 423 (1) (d), Cr. P. C. And 561-A, Cr. P. C. Could correct this mistake which is as already stated of a clerical nature and a product of pure inadvertence.
17. Under section 423 (1) (d) an appellate Court has the power to making any amendment or any consequential or in--cidental order that may be just or proper. By substituting the name of Ghous Ali Shah for Latif Shah the amendment that would take place would be purely consequential and incidental apart from being proper. It is no body's case that Ghous Ali Shah has not been convicted or that the Sessions Court by its judgment expressed any doubt as to his guilt that being so it would be in the interest of justice that the name of Ghous Ali Shah is substituted for the name of Latif Shah. The fact of the matter is that Ghous Ali Shah is not being convicted by this Court but this Court is only giving effect to the judgment of the trial Court and for that reason it cannot be said that a conviction or sentence is being recorded by this Court. However, it may be stated that even under section 423, Cr. P. C. An appellate Court has the power to pass a sentence in respect of an offence for which an accused may have been convicted but has not been sentenced. In the present case the Sessions Court has clearly said that the accused (three appellants) are guilty under sections 302/34 and 307/34, P. P. C. Since the Sessions Court had found them guilty an order of conviction and sentence had to follow such a deter--mination of guilt.
18. The case in point is the case of Malik Feroze Khan Noon v. The State (PLD 1958 SC (Pak.) 333) where their Lordships of the Supreme Court while considering the scope of powers of an appellate Court under section 423, Cr. P. C. Laid down that.
"A consequential or incidental order can only follow from the operative order in appeal which can either be one of affirming the conviction or getting aside a conviction or reducing an order altering a sentence."
These observations would clearly mean that on affirming a conviction the consequential and the incidental order would be imposition of a sentence and in fact if after affirming a conviction sentence is not maintained car imposed the order would remain incomplete and ineffective.
19. The next case for consideration is a Single Judge judg--ement reported in Fateh Muhammad v.
The State (PLD 1961 Lah. 212). In that case Mr. Justice A. R. Changez also held as follows: "Therefore, in a case where the conviction is affirmed, the Appellate Court can pass a subsidiary order following from the operative order in appeal without which the order in appeal would be ineffective and incomplete. Therefore, if the High Court in revision, while affirming by order the conviction of the other Court, refrained from imposing a sentence for the same, that order would remain incomplete and ineffective."
For these reasons the conclusion is inescapable-that this Court has ample power to pass a sentence when in fact conviction has been recorded by establishing the guilt of the appellants but through inadvertence sentence has not been recorded in the judgment although the appellant is serving out a sentence pursuant to warrant issued by the Court.
20. In such cases even the provision of section 561-A, Cr. P. C. Would come into operation. Section 561-A, Cr. P. C. Con--fers an inherent power on this Court to make such order as may be necessary to give effect to any order under this Code. The proceedings in the case before the lower Court were proceedings under the Criminal Procedure Code and these proceedings result--ed in appellant Ghous Ali Shah being found guilty under sec--tions 302/34 and 307/34, P. P. C. On being found guilty an effect has to be given to such a finding and such effect can be nothing else but passing of a sentence in respect of the offences that he was found guilty of. Through inadvertence sentence was not record-- ed but as a fact Ghous Ali Shah is undergoing a sentence and, therefore, it becomes all the more necessary to give effect to the finding of the trial Court in respect of the appellant, Ghous Ali Shah. In the case of Crown v. Habibullah (PLD 1952 Lah, 587) the sentence of a convicted person was enhanced from transportation to death by a Division Bench of the then Lahore High Court. While imposing the sentence of death the mode of execution was not mentioned in the judgment and, therefore, an application was made by the Advocate-General under section 561-A of the Criminal Procedure Code to invoke the inherent powers of the High Court for correct--ing the clerical error. The High Court did act under section 561-A, Cr. P. C. To supply the omission of statutory directions.
The learned Judges observed as follows "Our order sentencing the respondents to death vas an order under the Code of Criminal Procedure and until that order is executed, we retain the jurisdiction, to use the language of section 561-A of the Code of Criminal Procedure to make such orders as may be necessary to give effect to that order, and there is no question of our reviewing or altering the judgment."
It. Would be observed from the words quoted above, that the learned Judges acted to supply the omission only with a view to made such orders as were necessary to make for the purpose of giving effect to an order passed under the Code of Criminal Pro--cedure. For these reasons it is proper that the name of Latif Shah in the judgment, as an accused person being sentenced should be substituted by the name of Ghous Ali Shah:
21. Coming now to the merits of the case, it would be pro--per to consider the case of appellants Hajan Shah and Ghous Ali Shah separately as from the case of Bajhi. In regard to appellant Bajhi it may be stated at the outset that he is neither related to the remaining appellants nor is he their caste-fellow. There is no evidence on the record that this appellant was in any manner aggrieved at the abduction of Mst. Shahzadi or detention of Mst. Husna. In fact he has pleaded that he is not concerned with the other accused. Secondly, there has been no incriminating re--covery from this appellant although he was arrested on the same day as the other appellants. We have the evidence of the mashir, Muhammad Bashir, who stated that on the day of the incident Bajhi was arrested by the police and he produced a hatchet but the same was not blood-stained. The recovery of this hatchet by itself cannot be used against this appellant, for it is normal to the people in the `Muffasil' of Sind to keep hatchets in their houses for protection. Even the trial Court has not taken the recovery of this hatchet into consideration for the purposes of evaluating the evidence against appellant Bajhi. Moreover even the police officer did not send this hatchet for chemical examination. The remaining evidence against appellant Bajhi is of the eye-witnesses.
From among the eye-witnesses Mst. Husna and Razoo had not stated before the police, in their statements under section 161, Cr, P. C., that Bajhi gave any hatchet blow to Latif Shah. These two witnesses were examined by the police at the wardat imme--diately after the incident and their omission to attribute any specific part to Bajhi is significant. In addition to this circum--stance the dying declaration of Azim Shah recorded after six hours of the incident, by a Magistrate, in the Civil Hospital, also makes no mention of the name of Bajhi even as a person present at the wardat. This dying declaration, for the fact of Azim Shah having survived the injuries, cannot be used as a dying declaration but only for the purposes of corroborating or contradicting Aziz Shah. Mr. Ghulam Dastgir, the IIIrd Class Magistrate, was asked a question in cross-examination and he has clearly stated that this statement (dying declaration) of Azim Shah does not mentio the name of Bajhi. It would thus appear that all the eye-witnesses, Azim Shah, Mst. Husna and Razoo Rind, did not implicate appel--lant Bajhi in their pre-trial statements and fully implicate this appellant at the belated stage of trial and such evidence, to say the least, would be considered to be suspicious.
The only wit--nesses then, whose evidence remains for consideration with regard to this appellant, are, Latif Shah and his wife Mst. Bhana. With regard to Latif Shah this appellant had pleaded enmity.
The appellant in his statement has said that he and complainant Latif shah are tooga drivers and two days before the incident they had quarrelled on account of collusion of tongas and he had given blows to the complainant Latif Shah. Regard being had to all these circumstances the case of appellant Bajhi is not free from re doubt and he is given the benefit of doubt and acquitted.
22. Coming to the case of appellants Hajan Shah and Ghous Ali Shah, the evidence consists of five eye-witnesses, namely, Latif Shah (P. W. 2), Mst. Bhana (P. W. 3), Mst. Husna (P. W. 4), Azim Shah (P.
W. 5) and Razoo Rind (P. W. 6). Each one of these eye-witnesses has implicated the two appellants and given a consistent narration of the events. These witnesses are living in the same house except Latif Shah (.P. W. 2), who lives at a dis--tance of 263 feet from their houses. Latif Shah and Azim Shah had received injuries and were sent to the Medical Officer on the same day which fact also proves their presence. In addition, Latif Shah had lodged the F. I. R. Within 45 minutes of the in-- cident. Moreover the presence of Azim Shah also cannot be doubted because when police came to the wardat immediately after registration of the case they found him lying there in an injured condition. The two women witnesses Mst. Husna and Mst. Bbana would normally be in the house where they were living and the incident has taken place outside their house. With regard to P. W.
Razoo it may be stated that he being a brother of deceased Ibrahim -was living with deceased Ibrahim and the house of deceased Ibrahim is next to the house of Azim, Mst. Husna and Mst.
Bhana. In addition, Ghous Ali Shah and Hajan Shah in their statements before the trial Court have said that a quarrel did take place in which, according to the appellants, Azim Shah, Razoo, Latif Shah and deceased Ibrahim had taken part. The appellants were related to the prosecution witnesses and it was a daylight incident and for that reason there was no chance of wrong persons being implicated. For all these reasons it is safe to hold that the prosecution witnesses, named above, did witness the incident which is the subject-matter of this appeal.
23. In addition to the ocular evidence, there are the circum--stances in the shape of recoveries from the two appellants which go to corroborate the ocular evidence. The incident took place on 5- 4-1968 and both the appellants were arrested from their house within an hour of the lodging of the F.I.R. Appellant Hajan Shah was found to be wearing a loin-cloth and a shirt and bunyan which were found to be blood-stained and were secured under mashirnama, Exh. 26, by S. H. O.
Mahmood Ahmad, in presence of mashir Muhammad Bashir. Almost at the same time Ghous Ali Shah appellant was also found wearing a bushirt, vest and a loin-cloth and each one of these clothes was stained with blood. The seizure of these clothes from Ghous Ali Shah was evidenced by the same mashir. All these clothes had been sent to the chemical analyser who has given a report (Exh. 36) certifying that the same were stained with human blood. Each one of the two appellants also produced their weapons of offence, namely, the hatchets. They produced their hatchets on the same day be--fore S. H. O. Mahmood Ahmad and in presence of mashir Muhammad Bashir.
The appellant Hajan Shah produced the hatchet from underneath the paddy that was lying in his house end appellant Ghous Ali Shah from a thatched shed on the eastern boundary wall of his house. The two hatchets were secured under separate mashirnamas (Exhs. 28 and 27) respectively and the Chemical analyser, vide his report, Exh. 36, has certified that the same bore stains of human blood. There appears to be no reason, whatsoever, for doubting these recoveries and that what only need be mentioned in this context is that mashir Muhammad Bashir in his cross- examination was confronted with his lower Court statement to the effect that the hatchet of Hajan Shah did not have any blood on it. When he was confronted with this statement made by him in the committal Court the mashir stated that he did not remember whether he had said so. But in his examination-- in-chief he had clearly said that the hatchet of Hajan Shah did have blood on it. This lapse is not of much importance in this case because even if the statement of witness in the committal Court is considered, by itself the same will show that a hatchet was recovered from Hajan Shah. This hatchet, according to the Investigating Officer and as per mashirnama, had blood-stains and the origin of blood has been certified to be human by the chemical analyser.
Furthermore if the hatchet had not borne marks of blood the police officer would not have secured the same and sent it to chemical analyser. It may be mentioned that the hatchet of Bajhi was not secured and not sent to the chemical analyser. For these reasons it would be safe to hold that the recoveries spoken of by the prosecution were in fact made and this evidence is reliable.
24. The next piece of evidence against the appellants is of motive which has already been spoken of in the beginning of this judgment. Suffice it to say that Mst. Husna the wife of Hajan Shah had been called away by Azim Shah who was detaining her because Ghous Ali Shah the brother of Hajan Shah had abducted Mst. Shahzadi daughter of Miran Shah, the sala (brother-in-law) of Latif Shah. The appellants had a grievance on that score and the detention of Mst. Husna has been proved to be the motive for the commission of this crime. The last point for con--sideration in the context of the evidence produced by the prosecution is the statements of the appellants themselves. Both the appellants in their statements admitted that a quarrel had taken place-on the day in question. Both of them state that the com--plainant party had come to their house on the day of incident with a view to abduct Mst. Shahzadi and a fight took place in which they (appellants) received injuries. These statements of the appellants substantially support the prosecution, evidence in regard to the identity of the appellants.
25. The only question that now remains for consideration is: whether the appellants were entitled to the benefit of any Exception to section 300, P. P. C. For the purposes of determining this question the broad circumstances of the case have to be kept in view. The proved circumstances of the case are--that the fight had taken place outside the house of the complainant, that the complainant party received as many as 15 injuries, most of which were incised wounds. Besides this circumstance the F. I. R. Was lodged only by the complainant party and no weapon of offence has been recovered from any member of the complainant party It may also be stated that the appellants did not set up a case of exercise of their right of private defence. No doubt the accused do not have to affirmatively prove the exercise of the right of private defence but in absence of such plea there should be strong circumstances in their favour to raise an inference of the accused having acted in the exercise of such a right. The appellants in this case have contended themselves by suggestions in cross-examination to some of the witnesses anal those suggestions are to the effect that the prosecution witnesses had armed themselves with hatchets and entered into the house of appellant Hajan Shah with a view to forcibly abduct Mst. Shahzadi Such suggestions have been repelled by the prosecution witnesses. But if these suggestions were true then there should have been blood in the house of Hajan Shah instead of on the road in front of the house of the complainant party. Moreover, if the complain-- ant party had gone to forcibly abduct Mst. Shahzadi, some marks of violence should have been found on the person of Mst. Shahzadi but she has no injuries and has not been sent to the medical officer. It may even be said that if 5 or 6 persons from the complainant party had gone, armed with hatchets, to the house of appellant Hajan Shah, severe injuries would have been caused to Hajan Shah. But the injuries of Hajan Shah are only two simple lacerated wounds of the dimensions of 1' x --' and --' x --'. These injuries are obviously not hatchet injuries and for that reason too it cannot be believed that the complain-- ant party had entered into the house of Hajan Shah to cause the injuries. Similarly the injuries of Ghous Ali Shah are also very minor in nature, being two lacerated wounds of the dimen--sions of 1--' x 1' and 1' x --', in addition to one superficial incised wound --' x 1/8'. It is, therefore, difficult to believe that these injuries on the persons of the two appellants could have been caused by the complainant party, who according to the appellants, consisted of at least four persons each one of them having a hatchet. Moreover the dead body of Ibrahim was found outside the house of the complainant party and if deceased Ibrahim or injured Azim Shah had received injuries in the house of Hajan Shah, there should have been a trail of blood from the house of Hajan Shah up to the house of the complainant. But no blood was found to indicate that the incident had taken place in the house of Hajan Shah. Apart from this, as stated above, the F.I.R. Was prompt and lodged by the complainant party whereas on the other side, viz. The side of the appellants, no report was lodged.
The number of injuries caused to the deceased and the prosecution witnesses also indicate no inference of the exercise of right of private defence in favour of the appellants.
26. The appellants have produced Mst. Shahzadi to give evidence for their defence. Admittedly Mst.
Shahzadi is living with appellant Ghous Ali Shah whom she claims as her husband but no nikahnama was produced. Mst, Shahzadi, it appears, was living with appellant Ghous Ali Shah as a concubine. The complainant party is related to Mst. Shahzadi and if she was really married to Ghous Ali Shah there would be hardly any reason for the complainant party to deny such marriage and brand her as a concubine. Mst: Shahzadi living in the house of appellant Ghous Ali Shah is capable of giving evidence in his favour and, therefore, her evidence is not above suspicion. More- -over, her evidence is to the effect that it was the complainant party that entered the house of Hajan Shah and Ghous Ali Shah being armed with lathis and hatchets. For the reasons that have been given already, this version is absolutely untrue, regard being had to the circumstances of the case. Moreover, if any party had a grievance, it was the party of the appellants as Mst. Husna had been detained. There is, for these reasons, no good reason to extend the benefit of Exception 1 or Exception 4 to section 300, P.P.C. In favour of the appellants.
27. For the aforesaid reasons the appeals of Hajan Shah and Ghous Ali Shah are dismissed.
NOORUL ARFIN, J.-----I agree.