1. ' ALLAHDINO G. MEMON, J.--- In Criminal Appeal No, 72 of 1988 appellants Raisuddin, Najamuddin, Jawed and their brother Shakecluddin (since acquitted) were tried before the IIIrd Additional Sessions Judge (East), Karachi, under sections 302, 307, 34, P.P.C. Who has convicted appellant Jawed under section 302/34, P.P.C. And sentenced him to suffer imprisonment for life and to pay fine of Rs,5,000 in default whereof he was to undergo further R.I. For six months. Fine if realized a sum of Rs,3,000 was to he paid to the heirs of deceased Muhammad Shafi under section 544-A, Cr.P.C., while accused Raisuddin and Najmuddin were convicted under section 307 read with section 34, P.P.C. And sentenced to undergo R.I. For seven years each and to pay fine of Rs,2,000 each or in default to undergo R.I. For six months more. Fine if realized from both the accused the same was to be paid to injured Nom Muhammad as compensation under section 544-A, Cr.P.C., while co-accused Shakecluddin was acquitted vide judgment, dated 30th April, 1988.
2. ' In Criminal Appeal No, 73 of 1983 appellant Raisuddin was tried under section 13-E before the IIIrd Additional Sessions Judge (East), Karachi, who has convicted and sentenced him to suffer R.I. For three years. However, this sentence was ordered to run concurrently with the sentence awarded under section 307/34, P.P.C. Which is subject-matter in Criminal Appeal No, 72 of 1988.
3. ' Criminal Acquittal Appeal No, 179 of 1983 has been filed by the State against the acquittal of accused Shakeeluddin Baroque, whereas Criminal Revision No, 18 of 1983 has been filed for the enhancement of sentence of accused Javed, Raisuddin and Najmuddin.
4. ' Criminal Revision No, 34 of 1988 has been filed by complainant Raisuddin and others against the acquittal of accused Noor Muhammad and others.
5. ' The brief facts of the prosecution case are that on 9-8-1983 complainant Noor Muhammad son of Sher Muhammad, resident of Quarter No, H-413, Korangi Karachi and deceased Muhammad Shafi were brought to the Jinnah Hospital, Karachi. The Medical Officer informed the Duty Officer, Police Station Korangi, Karachi and A.S.I. Adalat Khan went to the hospital and recorded the statement of complainant Noor Muhammad under section 154, Cr.P.C. Which reads as under:- "I reside on the above mentioned address alongwith my parents and my sister, brothers, and I used to make badges etc. In a house which I have taken on rent basis in the `Mohalla'. Tonight at about 1-1/2 o'clock, when electric supply had failed and we and other Nohalla people' were sitting outside the houses, due to heat where Najamuddin, Jawed and Raees, the three brothers were also sitting there. In the meantime those three brothers during conversation taunted me that 3/4 years hack your father had suffered knife injuries at the hands of one Azad and even after that your father apologized and had compromised with the said person. And they asked that they used to bring medicine for my father at that time and the payment whereof is not paid yet. And they demanded the said payment. On this affair the dispute arose and those three brothers gave me beating with slaps and fist blows, whereupon Mohalla people intervened and separated us. I had lodged the report of the said occurrence at the police station, and thereafter I returned to my house and slept.
6. In the morning at about 6-1/2 o'clock, when I was going from my house towards hotel for taking milk, while passing in front of the Quarter No, 403/H of Najamuddin, accused, Najamuddin, Jawaid, Raees and Shakeel caught hold of me in the lane in front of their house. Races inflicted me a dagger blow saying 'kill him today which I received on my chest on the right side. I raised cries whereupon my (maternal) uncle Muhammad Shafi came there but Najamuddin who was armed with `Sarya' (Iron bar), holding in his hand, caught hold of him (Muhammad Shafi) and Jawaid inflicted knife blow to my (maternal) uncle Muhammad Shafi which hit him on the front side of his neck at aorta the great artery and on ribs. In the meanwhile my another maternal-uncle Muhammad Rafique also came there to rescue but he was also beaten. After seeing this occurrence Ismail, Waseem, Muhammad Ameen, Muhammad Yaseen Yaqoob and other people came and intervened and saved us. And thereafter Muhammad Yaseen, Yaqoob, and Ismail got boarded me and my maternal-uncle Muhammad Shall in a Taxi and brought us to Jinnah Hospital.
7. I had received dagger blows on the chest and `Sarya' (Iron bar) blows injuries on my left arm. My maternal-uncle Muhammad Shall receive injury on his aorta (the great artery), and on his body, due to which he died. My another maternal-uncle Muhammad Rafique also received injuries. My complaint is against the (said) four brothers for attacking me, my maternal-uncle Muhammad Shafi and my maternal-uncle Muhammad Rafique with intention to kill us and to kill my uncle Muhammad Shafi."
8. ' This statement was sent to police station through constable Khizar Hayat No, 10967 for registration of the F.I.R. The above statement was recorded by A.S.I. Iqbal in 154 book and the same has been produced as Exh.28. After sending the statement of Noor Muhammad to police station for registration of the case A.S.I. Adalat Khan gave a letter, to the Medical Officer for permission to record statement of injured Noor Muhammad, who endorsed that injured Noor Muhammad was fit to give his statement, the said letter has been produced as Exh.26. He then recorded the statement of injured Noor Muhammad verbatim which has been produced as Exh.14. Thereafter S.H.O. Ch. Muhammad Ashraf P.W.14 went to the J.P.M.C. Mortuary where he found dead body of deceased Muhammad Shall. He prepared the Mashirnama of inspection of dead body before witnesses Muhammad Yaqoob and Muhammad Yasin, and the Mashirnama has been produced as Exh.19. He also held inquest over the dead body of deceased Muhammad Shall before the same witnesses and inquest report has been produced as Exh.20. He then requested the Medical Officer to hold post-mortem examination of dead body and detailed Police Constable Khizar Hayat to get the dead body after post-mortem and the same may be handed over to its relations. He then went to the place of Wardat and prepared such Mashirnama in presence of witnesses Muhammad Ayub and Saleem, the Mashirnama has been produced as Exh.31. He secured 8 blood-stained stones and one blood-stained cement block from the place of Wardat. He recorded statements of P.Ws.
9. Muhammad Ayub, Saleemuddin, Fateh Muhammad, Muhammad Yaqoob, Muhammad Yasin, Muhammad Ismail, Ghulam Nabi, Abdul Aziz, Shabbir Ahmed and Muhammad Rafique. On the same day at about 2-00 p.m. He arrested three accused namely, Raisuddin, Javed and Najamuddin in front of their house under Mashirnama which has been produced as Exh.17-A. At about 2-13 p.m. On the same day accused Raisuddin produced Khanjar (dagger) from the Almirah lying in his house in presence of witnesses Muhammad Waseem and Muhammad Amin. He secured the same and prepared such Mashirnama which has been produced as Exh.17-B. He registered a separate case against accused Raisuddin under section 13-D of the Arms Ordinance after his return to police station. Accused Javed produced a blood-stained Chhuri from the back of Almirah lying in his house, while accused Najmuddin produced an iron rod from the same place in presence of witnesses Muhammad Amin and Muhammad Waseem. He prepared such Mashirnama which has been produced as Exh.17-C. All three accused had injuries on their person and therefore, they were referred to the hospital for treatment. The blood-stained clothes of complainant Noor Muhammad were produced by one Muhammad Rafique before him in presence of witnesses Muhammad Yasin and Muhammad Ismail which were secured and sealed under Mashirnama, the Mashirnama has been produced as Exh.51. He then handed over all the blood- stained articles to the Head Muharrer for sending the same to the Chemical Examiner for examination and report. On 10th August, 1983 he went to J.P.M.C. Karachi and recorded further statement of complainant Noor Muhammad because he was admitted in the hospital. He also recorded statement of P.W. Fateh Muhammad. On 13-91984 accused Raisuddin produced an application before Ch. Muhammad Ashraf S.H.O. Korangi, which was incorporated in 154, Cr.P.C.
10. Book as a counter-case. The application moved by Raisuddin reads as under:- "Janab Incharge Sahib, Korangi Police Station, Karachi.
11. ' This is to request that on 9-8-1983 in the night time a quarrel took place between my brother Jawaid and Noor Muhammad and his maternal-uncle Rafique over giving and taking of money but the Mohalla people intervened and pacified.
12. ' On 9-8-1983 at about 6-30 a.m. While I and my two brothers Jawaid and Najamuddin were sleeping in our house, all of a sudden (1) Noor Muhammad, (2) Muhammad Shafi, (3) Muhammad Rafique, (4) Muhammad Ismail, (5) Muhammad Ayoob, (6) Saleemuddin, (7) Din Muhammad, (8)
13. Muhammad Yaseen, (9) Bashir Ahmed, (10) Abdul Aziz, (11) Ghulam Nabi, (12) Muhammad Yakoob and (13) Fatch Muhammad duly armed with Lathis, Sarya, knives and hatchets after forming unlawful assembly with common intention to kill, used abusive language, entered in my house, and started beating me and my two brothers with the result we sustained serious injuries on our body.
14. In the meanwhile witnesses, Razaque, Khurshid, Farooque, Sabir and Shakir came and intervened, they also saw the incident. I alongwith my two brothers immediately went to Police Station Korangi where we were arrested by the police, and since we were seriously injured the police referred us to hospital for medical examination and we were treated by the hospital through medical certificate vide M.C. No, 4437, 4438 and 4439. As per medical certificate injury No,2 sustained by me was declared as grievous and injury No,2 substained by Jawaid was declared having been caused by sharp-edged weapon. Since we all brothers were under custody therefore, could not approach police and our brother Jawaid is still in judicial custody, and I after release on bail approached the police against the above accused persons for making attack and causing grievous and simple injuries to all of us after forming unlawful assembly with full preparation having common intention along with deadly weapons by entering in my house, action may kindly be taken."
15. ' After necessary investigation the parties were challaned before the Court on 20-8-1983.
16. ' A formal charge was framed against the appellants and co-accused to which they pleaded not guilty.
17. ' In Criminal Appeal No, 72 of 1988 the prosecution examined complainant Noor Muhammad P.W.1, he has produced entry containing his complaint regarding incident which took place during night on 9-8-1983, as Exh.13 and his statement recorded under section 154, Cr.P.C. As Exh.14. Muhammad Ismail an eye-witness P.W.2, Ghulam Nabi an eye-witness P.W.3. Muhammad Waseem son of Muhammad Naim an eye-witness and Mashir P.W.4, he has produced Mashirnama of arrest of 3 accused/appellants as Exh.17-A, Mashirnama regarding production of blood-stained dagger from appellant Raisuddin as Exh.17-B, Mashirnama regarding production of iron rod by accused Najamuddin as Exh.17-C, Mashirnama of production of blood-stained Chhuri by Jawaid as Exh.17-D, Muhammad Yaqoob an eye-witness P.W.5, he has produced Mashirnama regarding examination of dead body as Exh.19 and inquest report as Exh.20. A.S.I. Adalat Khan P.W.6, he has produced the copy of message received by him from Medical Officer which was recorded in Roznamcha maintained at police station as Exh.25. Letter seeking permission from Medical Officer to record statement of complainant Noor Muhammad with endorsement of medical officer as Exh.27, A.S.I.
18. Muhammad Iqbal P.W.7, he had incorporated the statement of complainant Noor Muhammad in 154, Cr.P.C. Book which he has produced as Exh.28. A.S.I. Asrarul Hague P.W.8, he has produced the entry dated 9-8-1983 regarding complaint lodged by Noor Muhammad complainant at 2-30 a.m.
19. Mashir Muhammad Ayub P.W.9, he has produced Mashirnama of place of Wardat and securing of cement block and small stone as Exh.31, Abdul Aziz an eye-witness P.W.10, Medico-legal Officer, Kamaluddin P.W.11, he had examined injured Muhammad Shafi and complainant Noor Muhammad, he has produced the medical certificates as Exh.34 and Exh.35. He has also produced supplementary certificate with regard to the nature of injury on the person of Noor Muhammad as Exh.35-A, case-sheet of injured Noor Muhammad containing twenty pages and thirteen X-ray films Exh.35-B, statement of D.P.P. Giving up P.Ws. Salimuddin, Muhammad Amin, Fateh Muhammad, Muhammad Rafique as Exh.36, Court witness No,1, Muhammad Aslam P.C. He was given process regarding service on Dr. Zulfiqar Ali but the same could not be served and, therefore, it was returned hack, as such, with endorsement as Exh.38. An application under section 540, Cr.P.C.
20. Requesting the Court to direct Police Surgeon to depute any other doctor to produce the post- mortem report as Dr. Zulfiqar was not available as Exh.39, Dr. Khalil Ansari, Assistant Police Surgeon J.P.M.C. P.W.12, he has produced the post-mortem report as Exh.41, and medical certificate No, 4432/83; regarding injuries on the person of Muhammad Rafique as Exh.42, Dr. Capt. Bashir P.W.13, he has produced Medical Certificate regarding injured/accused Raisuddin as Exhs.44 and 45, accused Najmuddin as Exhs.46 and 47, accused Javed Ahmed as Exhs.48 and 49, S.H.O. Ch. Muhammad Ashraf P.W.14, he had carried on investigation and challaned the appellants. He has produced the chemical examiner's report as Exh.52; he has also produced F.I.R. Recorded by him on the basis of application moved by Raisuddin Exh.35, copy of charge-sheet in the case, filed by accused Raisuddin as Exh.54.
21. ' After close of the prosecution case, the statements of appellants and co-accused Shakiluddin were recorded under section 342, Cr.P.C. In which they have denied the allegations. The appellants also examined Mr. Muhammad Shahzad Hussain Siddiqui, Advocate, Bahawalpur, D.W.1, he has produced Agreement of Sale executed in favour of accused Shakeel by Mst. Maqsood Jehan in respect of Quarter No,31, situated in Quetta Town, Karachi as Exh.62, Receipt of Rs,2,000 as earnest money by Maqsood Jehan from appellant Shakiluddin as Exh.63, photostat copy of allotment order as Exh.64, and original allotment order as Exh.65. Appellant Raisuddin Farooqui D.W.2 appellant Najmuddin D.W.3, Muhammad Ismail D.W.4, Sub-Inspector Ghulam Jillani D.W.5, he has produced leave application of Shakiluddin as Exh.71, entry regarding leaving the duty by Shakiluddin as Exh.73, appellant Shakiluddin D.W.6, he has produced copy of his application for leave as Exh.74. Part II statement regarding grant of leave on 168-1983 as Exh.75, Abdul Qayum D.W.7, appellant Javed Farooqui D.W.8, Ajmal Hussain, Petition Writer, Bahawalpur D.W.9, he has produced the original register in which entries regarding documents written by him are being kept, and the entry has been produced as Exh.79, Sajjad Hussain clerk of Mr. Muhammad Shahzad Hussain Siddiqui, Advocate, D.W.10 he has produced his affidavit as Exh.81.
22. ' Dr. Kamaluddin P.W.11 has deposed that on 9-8-1983 he was posted as Medico-legal Officer at J.P.M.C. At about 7-10 a.m. Two injured persons namely Muhammad Shafi and Noor Muhammad were brought to the hospital by Muhammad Yasin. First he examined injured Muhammad Shafi soh of Abdul Ghafoor and found the following injuries on his person:--
(1) Incised wound 1" x 1/2" cutting neck structure at front of neck.
(2) Incised wound 1" x 1/4" cavity deep at right side of the chest posteriorly.
(3) Lacerated wound 1" x 1/2" scalp deep at right front of temporal region.
23. ' The general condition of the patient was not satisfactory. He was unconscious, forthy secretions were coming out from his mouth and nose and pulse was week. Blood pressure was not recordable, pupils were dilated. Necessary first aid was given to the injured but unfortunately he died at 7-20 a.m. The above injuries were fresh. The injuries Nos. 1 and 2 were caused by some sharp-edged substance while injury No,3 was caused by some hard and blunt substance. He had informed H.C. Muhammad Sharif No, 959 Korangi Police Station.
24. ' INJURED NOOR MUHAMMAD.
25. ' There was single injury. Incised wound 1-1/2" x 1/2" cavity deep at right side of upper chest interiorly/oblique in direction. Necessary treatment was given to the injured. He was admitted in Chest Surgical Ward No,21. The injury was fresh and was caused by sharp-edged substance. His general condition was not satisfactory. Patient was restless and looking anxious. Pulse was feeble, blood pressure not recorded but he was conscious oriented in time and space. He has produced the medico-legal Certificates Nos.4430 and 4431 as Exh.34 and Exh.35. He has further deposed that as per case sheet patient Noor Muhammad was admitted on 9-8-1983 and was discharged on 24- 9-1983. It was diagnosed haemothorax. Patient was operated on 31-8-1983, left sixth rib was removed, tear of liver was repaired. Blood clot removed from chest cavity and chest cavity was closed, as such, he was of the opinion that reserved injury is grievous/dangerous to life in nature.
26. He has produced supplementary certificate as Exh.35-A. In his opinion there is clerical mistake of the words 'liver' instead of 'lung' as injury belongs to chest cavity so lung would have been damaged and repaired.
27. ' Dr. Zulfiqar Ali, who had conducted post-mortem examination on the dead body of Muhammad Shall was not available and, therefore, Dr. Khalil Ansari P.W.12 was examined. According to Dr. Khalil Ansari he has been working as Assistant Police Surgeon in J.P.M.C. Karachi. He knew Dr. Zulfiqar Ali since last 7/8 years as he has been his colleague and had worked with him. He was fully conversant with the handwriting and signatures of Zulfiqar Ali who was also working in Medico- legal Section of J.P.M.C. On 9-8-1983, Dr. Zulfiqar Ali had conducted post-mortem examination of dead body of Muhammad Shafi son of Abdul Ghafoor. He started post-mortem at 12-45 p.m. And finished it at 2-15 p.m. He had issued such post-mortem report which he has produced as Exh.41. It was in his handwriting and also bears his signatures, On the same day, Dr. Zulfiqar Ali had examined one Muhammad Rafique son of Abdul Ghafoor and had issued M.L.C. No, 4432/83 in respect of injuries on the person of Muhammad Rafique and he has produced the certificate as Exh.32. In cross-examination he has deposed that he did not remember if he was working with Dr. Zulfiqar Ali in August, 1983. About two years back (witness) has joined J.P.M.C. Karachi. He has denied that he had not worked with Dr. Zulfiqar Ali (Note; the witness was examined on 7-12-1986).
28. The post-mortem notes Exh.41 show that the following injuries were found on the person of deceased Muhammad Shafi.
(1) Incised wound 1/2" x 1/2" on front of neck 2" below chin.
(2) Incised wound 1/2" x 1/4" on the right and lower part of chest.
29. ' From the external and internal examination of the dead body Dr. Zulfiqar Ali was of the opinion that the death of the deceased had occurred due to hemorrhage and shock due to cardio respiratory failure resulting from the above injuries which appeared to have been caused by sharp-cutting substance may be by knife or dagger.
30. ' Dr. Capt. Bashir Ahmed, P.W.13 had examined accused/appellant Raisuddin, Najamuddin and Javed on 9-8-1983 at J.P.M.C. Karachi at 4-00 p.m. And had found the following injuries:--
(1) Lacerated wound 2" x 1/4" x scalp deep on the right parietal region.
(2) complains of pain in the left middle and ring finger swelling and movement restricted.
(3) Abrasion 1/4" x 1/4" on the front of right wrist.
(4) Contusion 1-1/2" x 1/2" on the back of right shoulder.
(5) Contusion 1-1/2" x 1" on the front of right arm.
31. ' Injury No,2 is grievous while the rest were simple in nature. He has produced the medical certificate and supplementary report, as Exhs.44 and 45.
2. Najamuddin son of Nasiruddin.
(1) Lacerated wound 1-1/2" X 1/2" x scalp on the centre of forehead.
(2) Contusion 1/2" x 1/2" on the back of right elbow.
(3) Complains of severe pain in the back of chest right side.
(4) Complains of pain in the left shoulder movement normal.
(5) Abrasion 1" x 1/2" on the front of left leg.
(6) Complains of pain in the right big toe.
(7) Lacerated wound 1/2" x 1/4" x skin deep on the right parietal region.
32. ' The injuries were simple in nature and appeared to have been caused with blunt weapon. He has produced the medical certificate and supplementary certificate as Exh.46 and Exh.67.
33. ' Javed Ahmed son of Nasiruddin.
(1) Contusion 2" x 1" on the back of right forearm movement of elbow joint restricted.
(2) Incised wound 1/2" x 1/4" x skin deep on the front of left elbow/in direction.
(3) Lacerated wound 1/2" x 1/4" on the front of left index finger with swelling positive and restriction of movement.
(4) Two abrasions each 2" x 1/2" on the left deltoid region.
(5) Abraded contusion 1" x 1" on the right wrist.
(6) Lacerated wound 1/2" x 1/4" on the tip of right thumb.
(7) Lacerated wound 1/2" x 1/4" on the back of right index finger.
(8) Abrasion 1/2" x 1/2" on the front of right knee.
34. ' The injuries were fresh. Injury No,2 was caused by sharp-edged cutting weapon such as knife, blade or any other substance and rest appeared to have been caused by hard blunt weapon. He has produced medical certificate and supplementary certificate as Exh.48 and Exh.49. In cross- examination he has stated that he has not mentioned in the column that the injuries on the person of injured could be self-inflicted or by hand. He has admitted that he has not mentioned in his certificate that the said injuries could be caused by fall of stones.
35. ' Complainant Noor Muhammad P.W.1 has supported the contents of his F.I.R. He has produced the entry No,73 dated 9-8-1983, from the station diary as Exh.13 regarding non-cognizable report lodged by him regarding earlier incident. He has also produced his statement which was recorded under section 154, Cr.P.C. As Exh.14. According to him, he was in the hospital for about 1/2 month and thereafter he was discharged. In cross-examination he has deposed that he had not mentioned the name of owner of the hotel from where he was going to purchase milk in his statement. The door of his house and that of the house of accused open in the same street. His house is separated by eight houses and one street from the house of the accused. He was going to purchase milk from Muhammad Sharif Mullah. He has denied that there is no hotel of Muhammad Sharif Mullah in the area. That hotel is situated in 'H' area. There is one Tara' (cattle pen) on the backside of house. The milk is available in that Tara'. His deceased uncle used to permanently reside in Sherabad, Landhi Colony, 'K' Area, Karachi. Police had recorded only his one statement i,e, Exh.14. He had not made any further statement before the police. Direct way to hotel of Muhammad Sharif Mullah was short which was adopted by him. There was other indirect way also leading to his hotel. He has denied that the hotel of Muhammad Sharif Mullah is not near the house of the accused. He has admitted that the way to the Tara' behind his house is shorter than the way to hotel of Muhammad Sharif Mullah near Quarter No,403, but shop of Shahzad is not there. He has admitted that the upper storey of Quarter No, 403 was not yet completely constructed, it was under construction. He had stated in Exh.13 that accused started beating him and that they passed circastic remarks that they had supplied medicine to his father who had apologized from one Azad even after sustaining injuries at his hands. It is correct that he had stated in the F.I.R. That he had sustained injuries on his chest with knife and on left arm with Saria. He had stated in F.I.R. That Shakil and Najmuddin were armed with Saria and they gave him Saria blows (There is a note from the Court confronted not so recorded). He had stated in the F.I.R. That Najmuddin gave Saria blows to his maternal-uncle (confronted not so recorded). He had stated in the F.I.R. That while he was saving his maternal- uncle Muhammad Shari accused Rais gave second blow with dagger on his neck (confronted not so recorded). He had stated in the F.I.R. That when his maternal- uncle Muhammad Rafi tried to intervene all accused had beaten him. (There is note confronted not so recorded). Many persons including the complainant appeared at the spot one after the other. Houses Nos.413, 414, 415, 416, 417 to 420 are close to each other in one row. P.W. Ghulam Nabi resides in Quarter No, 417. Excepting Ghulam Nabi none of the witness resides in this row. P.Ws. Muhammad Ayub, Yasin and Yaqoob are real brothers. Yasin is son-in-law of his maternal-uncle Rafique. Abdul Aziz is son-in-law of deceased Muhammad Rafique. P.W. Fateh Muhammad is his brother. Yasin resides two furlongs away from the place of incident. All the three brothers are residing with their father in the same house. He has denied a suggestion that none of the accused had beaten him and caused injuries to deceased Muhammad Rafique and deceased Muhammad Shafi. He has denied that on the day of incident he alongwith P.Ws. Muhammad Ayub, Muhammad Yasin, Muhammad Yaqoob, Din Muhammad, Fateh Muhammad, Ghulam Nabi, Abdul Aziz, Shabir Ahmed, Muhammad Rafique, Muhammad Ismail, and Salimuddin armed with Chhuris and sticks entered the house of accused Raisuddin, Javed and Najmuddin and caused them injuries in their house. He has denied that in the above attack, persons on both sides received injuries. He has denied that he had invited all his relatives and people of community and attacked the accused in their house. He has denied that A.S.I. Adalat is his friend.
36. ' Muhammad Ismail P.W.2, Ghulam Nabi P.W.3, Muhammad Wasim P.W.4, Muhammad Yaqoob P.W.5 and Abdul Aziz P.W.10 have supported the version, as given by complainant Noor Muhammad, except the role played by respondent Shakeeluddin.
37. ' The medical evidence shows that complainant Noor Muhammad, Muhammad Rafique and Muhammad Shafi had received injuries in the incident, and Muhammad Shafi died as a result of injuries.
38. ' The evidence of Muhammad Wasim P.W.4, further shows that after the incident the injured were removed to the hospital. After some time he came to know that Muhammad Shafi died. On the same day at about 2-00 p.m. He was sitting in the hotel when police party came and arrested all the four accused persons and took their personal search but nothing was secured from them. The police prepared such Mashirnama in his presence and obtained his signatures. The Mashirnama has been produced as Exh.17-A. Thereafter, all the accused persons were taken to the police station and after shortwhile accused Raeesuddin and Najamuddin were brought to their house. He was called by police to act as Mashir. Accused Raeesuddin and Najmuddin led the police party inside their house where Raeesuddin took out blood-stained dagger from the lower part of the almirah which was secured by the police. Then accused Najmuddin took out an iron rod from the back of the alminah. Police prepared such Mashirnama and obtained his signatures and the same has been produced as Exhs.17-B and 17-C, respectively. Thereafter police brought accused Javed to his house after about five minutes and led the police in his house and produced blood-stained Chhuri from the back of the almirah which was secured by police and such Mashirnama was prepared in his presence which has already been produced as Exh.17-C. The dagger, Chhuri and iron rod has been produced as articles 'A', 'B' and 'C'. In cross-examination, he has deposed that article 'A' which shows that it was secured from the possession of accused Javed. This article 'A' was not sealed by the police in his presence. He could not give the length of Article 'B' which shows to have been recovered from accused Raeesuddin. As far as Article 'A' was concerned, its blade was about one foot. He is not employee anywhere from very beginning. His father is driver on a private car, at present he is out of job. He does not possess National Identity Card as the same has been lost 4/5 months back. He has not lodged any report about the same. He has denied that he is not Wasim.
39. The police took the accused after their arrest in a Suzuki of police. He was sitting at a hotel at that time. There were 4/5 other persons present in the hotel. He did not know as to how many rooms were there in the house of the accused. He has denied a suggestion that Exhs.17-A, 17-B and 17-C do not bear his signatures. At the time of arrest of all the accused persons neither they had any injury on their person nor their clothes were blood-stained. The incriminating articles were lying in between the wall and almirah. He had stated before the police that the accused persons had produced blood-stained dagger from the lower drawer of the almirah. He has denied a suggestion that his father is working as driver with the complainant, Noor Muhammad and that he was giving false evidence, after taking money from the complainant Noor Muhammad. Deceased Muhammad Shafi was not the permanent resident of the locality where the incident took place.
40. ' P.W. Adalat Khan A.S.I. Was posted at Police Station Orangi, Karachi on 9th August, 1983. According to him, he received a telephonic message from J.P.M.C. On that day at 7-30 a.m. That one of the injured namely Muhammad Shafi has died in the hospital and there was also another injured who has been admitted in the hospital and therefore, some police officials be sent to the hospital. He recorded message in the station diary maintained at police station and copy of the same has been produced by him as Exh.25. On receipt of above information, he immediately proceeded to J.P.M.C. Gave letter to the Medico-legal Officer for permission to record statement of injured Noor Muhammad which was allowed and the letter with endorsement has been produced as Exh.26. He then recorded the statement of injured Noor Muhammad verbatim Exh.14 was the same. After recording the statement he sent the same to police station through Khizer Hayat for incorporating in 154, Cr.P.C. Hook. Thereafter S.H.O. Muhammad Ashraf came to the hospital and he conducted further investigation of the case.
41. ' S.H.O. Ch. Muhammad Ashraf P.W.14, who had carried on investigation of both the cases and his evidence has been mentioned in the earlier part of this judgment. In cross-examination he has admitted that a counter-case in F.I.R. No, 463 of 1984 was registered on the complaint of accused Raeesuddin against Noor Muhammad and others, he has produced photostat copy of F.I.R. As Exh.53 and charge-sheet as Exh.54. In this F.I.R. Accused Raeesuddin has stated that the incident took place inside his house. The place of incident in that F.I.R. Was pointed out by Raeesuddin and it was confirmed by his witness. From the evidence and the statements of witnesses, produced by accused Raeesuddin it was proved that the place of incident in his case was inside the house. The place of incident in F.I.R. No, 395 of 1983 lodged by complainant Noor Muhammad has been shown in front of Quarter No, H-403. The medical certificates in respect of injuries on the person of accused Najmuddin and Jawaid were received from medical officer after submission of charge- sheet in F.I.R. 395 of 1983. He came to know about nature of injuries on the persons of injured Raeesuddin, Najmuddin and Jawaid and for the first time when he registered their F.I.R. Against Noor Muhammad and others. He has admitted that whenever they referred any injured to the hospital for examination and treatment, they mentioned the injuries on the person of the injured person. He has also admitted that he inspected the injuries on the person of the injured, when he came to the police station for report. It was not necessary to obtain the medical certificate in respect of the injuries on the person of the accused before submission of challan against them in Crime No, 395 of 1983. He had received the medico-legal numbers of medical certificates in respect of three injured/accused persons namely Jawaid, Raeesuddin and Najmuddin on the same day on which he had sent them to J.P.M.C. For examination and treatment, but he did not receive formal medical certificates till 20-8-1983. He could not say when medical certificate bearing No, 4437, 4438 and 4439 were received. He had mentioned the description of injuries on the persons of accused Jawaid, Raeesuddin and Najmuddin in the station diary kept at the police station when he sent them to J.P.M.C. For examination and treatment. Again stated, after going through the police papers that the details and description of the injuries of the above-mentioned accused were not mentioned anywhere in the station diary. He did not remember if the above three certificates were received from Police Surgeon, Karachi at police station on 10th August, 1983.
42. He could not say if any application was moved by the mother of the accused that robbery of money and ornaments was committed from their house and her sons were injured nor he could say if such application was available on the record, of counter-case No,846 of 1985. He has admitted that in charge-sheet No, 473 of 1984, in case filed by Raeesuddin he did not cite Jawaid Farooqui as a witness. He also did not cite womenfolk as witnesses in that case lodged by accused.
43. He did not arrest any of the accused in F.I.R. No, 463 of 1984 lodged by accused persons and all ten accused got bail before arrest on 29-9-1984. He has admitted that he has received medical certificates of Raeesuddin and others on 25-1-1984, which was sent to him by higher authority alongwith application moved by the mother of accused Jawaid after due inquiry he submitted report to the higher authority. He has admitted that he did not record statement of any witness by name of Waseem son of Muhammad Naeem. Voluntarily says, that in this respect the father's name of Waseem was written as Mustaqueem instead of Naeem which was lately corrected. He has admitted that he did not make correction in the calendar of witnesses cited by him in the challan i,e, the name of Muhammad Wasim son of Muhammad Naeem. He has not mentioned in Exh.52 as to when the articles were sent to the chemical examiner. P.W. Muhammad Ayub, Muhammad Yasin, and Muhammad Yaqoob are real brothers and they are related to the complainant as well as the deceased. Deceased Muhammad Shafi was permanent resident of Landhi Colony, Karachi. He did not record statements of the persons residing in Quarters Nos. 401 to 420 except of P.W. Muhammad Waseem. He did not examine anybody from the hotel. He has denied that the accused had gone to him for lodging report but he refused to record the same.
44. After the arrest of the accused persons, he did not take them to the police station before recovery of articles mentioned in Exh.17-B and Exh.17-C. He has denied a suggestion that the crime-weapons were not recovered from the accused and the same were foisted on them. He has admitted that accused Shakil was posted as Wireless Operator at Police Station Korangi at the time of incident.
45. He did not record the statement of Superior Officers from Head Office where accused Shakil was working. He has produced the chemical report as Exh.52.
46. ' After close of the prosecution case, the statements of accused were recorded in which they have denied the allegations. They have also examined themselves on oath as envisaged by section 340(2), Cr.P.C. The accused also examined Mr. Muhammad Shahzad Hussain, Advocate, Bahawalpur as D.W.1, who has deposed that he is a practising Advocate at Bahawalpur. He is also Vice-President of District Bar Association, Bahawalpur. He knows accused Shakil as his wife Mst.
47. Maqsood Jehan had sold a plot bearing No,R.25, situated in Quetta Town, Karachi for a sum of Rs,20,000 on 9-8-1983 to Shakil. He has produced the photostat copy of agreement as Exh.62. It was signed by him as well as by his wife as a seller. He knows Sajjad Hussain, Clerk of Mr. Behram Khan, Advocate, Bahawalpur who has also signed the agreement as witness. Petition-writer Ajmal had written the agreement. It was about 9-00 a.m. On 9-8-1983. It was executed at Bahawalpur in his presence. He has produced the photostat copy of receipt of Rs,20,000 regarding payment by Shakil Farooqui to his wife on 9-8-1983 at Bahawalpur towards consideration as Exh.62. This receipt bears signatures of his wife and witness Sajjad Hussain. It was written by Ajmal Hussain and bears his signature also. He has also produced the photostat copy of allotment order as well as original allotment order as Exh.64 and Exh.65. Photostat copy of the same was given to the purchaser Shakiluddin at the time of execution as Exh.62. So also photostat copy of the plan. He has produced original plan as Exh.65. The entire transaction was completed at Bahawalpur in his presence on 9- 8-1983. This agreement was not completed as accused Shakiluddin could not pay the balance of Rs,18,000 within the period specified in the agreement. The transaction could not be finalised as accused Shakiluddin stated that he was involved in a murder case and, therefore, is not in a position to pay money. In cross-examination he has stated that he has not paid the first payment himself. He has admitted that Rs,1,200 was paid by him on 6-5-1985. He has produced the original receipt of payment of Rs,1,277 to Quetta Town Co-operative Housing Society, Karachi as Exh.66.
48. Accused Shakil had gone to him in the last week of August, 1983. This agreement was later on cancelled but he has no written documents to this effect. The transaction was made at Karachi through his maternal-nephew through some broker and the accused came to him at Bahawalpur after taking his address. There was no mention of any broker in the agreement. He had purchased the stamp paper on behalf of his wife at Bahawalpur. The stamp vendor is still alive. His wife, the petition-writer and the clerk are also alive. He knew accused Shakiluddin who had gone to him 2- 1/2/3 months prior to execution of the agreement. He is not in possession of the lease document in respect of the property of which this agreement was executed. He has denied that Exh.62 is fictitious document and has been prepared to save accused Shakiluddin. In reexamination, he has deposed that his father-in-law Khan Bahadur Habib-urRahman had made first payment of this allotment.
49. ' Sub-Inspector Ghulam Jillani, D.W.5 deposed that he knows accused Shakiluddin as he is working in Police Communication Department as H.C. He has brought in Court the Register kept by the Department for maintaining leave. Accused Shakiluddin applied for earned leave for two months which was granted w,e,f, 8-8-1983 to 7-10-1983 and he was relieved from duty on 8-8-1983 afternoon. He has produced photostat copy of Exh.71 and Exh.72. Accused Shakiluddin deposited kit at Korangi Police Station he had availed two months' leave. In cross-examination he has deposed that he has brought the application for leave which was made by accused Shakiluddin and the same has been produced as Exh.74. The leave was granted to Shakiluddin on the ground of marriage of his younger brother and repairs of house. The departure of accused was made on 8- 8-1983 at about 16-05 hrs. He did not know as to where Shakiluddin had gone after leaving the office.
50. ' Ajmal Hussain Petition-writer D.W.9 and Sajjad Hussain Clerk of Mr. Behram Khan, Advocate, Bahawalpur D.W.10 have fully supported the case of accused Shakiluddin regarding execution of agreement Exh.62 by Mst. Maqsood Jehan Begum. The accused have also examined Muhammad Ismail D.W.4, Abdul Qayyum D.W.7 in their support regarding incident.
51. ' The learned trial Judge after taking into consideration the evidence produced by the parties has convicted the appellants as described above while co-accused Shakiluddin was acquitted.
52. ' We have heard Mr. A.Q. Halepota, learned counsel appearing for the appellants Raeesuddin and others in Criminal Appeal No, 72 of 1988 and for private respondent in Criminal Revision No, 18 of 1988 and Criminal Acquittal Appeal No, 179 of 1988, Mr. Azizullah K. Shaikh, learned counsel appearing for applicants Noor Muhammad and others in Criminal Revision No, 18 of 1988, and Mr. K.M. Nadeem learned AA.-G. Appearing for the State in Criminal Acquittal Appeal No, 179 of 1983 as well as in Criminal Appeal No, 72 of 1983 and Criminal Revision No, 18 of 1988.
53. ' It has been contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants in Criminal Appeal No, 72 of 1988 that there was no motive for the appellants to attack complainant party and the motive was on the side of the complainant party to attack the appellants. It was further contended that the ocular testimony was interested, contradictory, inimical, and unreliable, and the learned trial Judge had erred in relying upon the same. That the evidence of recovery was contradictory, interested, and unreliable. The house from where the recovery is alleged to have been made was occupied by number of persons, and from the evidence of S.H.O. And Mashir Wasim, it was clear that none of the appellants was in exclusive possession of the same. That the three appellants had received number of injuries but the complainant and P.Ws. Have failed to explain the same and therefore, no reliance could be placed on their evidence. It was further contended that the S.H.O. Has admitted that the incident took place inside the house of the appellants, and therefore, the complainant party was aggressor, and appellants had a complete right of private defence of their persons.
54. ' Mr. K.M. Nadeem learned A.A.-G. Appearing for the State has contended that the prosecution had proved beyond reasonable doubt that appellant Raeesuddin was responsible for the murder of deceased Muhammad Shaft but looking to the circumstances of the case he was liable under section 304, Part I, P.P.C. However, he was not able to controvert the fact that the incident took place inside the house of the accused/appellants and that the complainant party had the motive to attack the appellants.
55. ' As far as Criminal Acquittal Appeal No, 179 of 1988 was concerned, Mr. K.M. Nadeem learned A.A.-G.
56. Appearing for the State, did not press the same looking to the prosecution evidence against respondent Shakeeluddin and the defence evidence produced by him.
57. ' Mr. A.Q. Halepota learned counsel appearing for the respondent Shakeeluddin has contended that the prosecution evidence was contradictory and unreliable regarding the part played by respondent Shakeeluddin and it was further belied by medical evidence. He has further contended that the defence evidence produced by respondent Shakeeluddin was more reliable, and therefore, he was rightly acquitted by the learned trial Judge. It was further contended, that keeping in view the principles enunciated by superior Courts from time to time even if this Court takes a different view of the evidence, acquittal could not be set aside.
58. ' Mr. Azizullah K. Shaikh, learned counsel appearing for the applicants Noor Muhammad and others in Criminal Revision Application No,18 of 1988 has contended that the learned trial Judge has failed to give reasons for awarding lesser sentence to appellant Raeesuddin in spite of the fact that it was proved that he had committed murder of deceased Muhammad Shafi, in such a case he should have awarded normal sentence of death.
59. ' Mr. A.Q. Halepota, learned counsel appearing for respondent Raeesuddin has contended, that in the present case the incident took place inside the house of the respondent as admitted by the Investigating Officer, and the respondent and his two brothers had sustained number of injuries which the prosecution had failed to explain. He has further contended that looking to the circumstances of the case, the appellant was entitled to acquittal and the learned trial Judge had erred in convicting the appellant.
60. ' We have considered the contentions of the learned counsel. As far as the question of unnatural death of deceased Muhammad Shafi was concerned, the same stands proved through the evidence of Dr. Kamaluddin P.W.11, who had initially examined injured Muhammad Shafi, Dr. Khalil Ansari, who has produced post-mortem report as Exh.42, complainant Noor Muhammad, Mashirnama of death and inquest report as Exhs.19 and 20. Even the learned counsel appearing for the appellants has not disputed so far death of deceased Muhammad Shah was concerned.
61. ' As far as the incident is concerned, it has also not been denied. However, the case of the complainant party is that the incident took place in front of the house of the accused/appellants while the complainant Noor Muhammad was going to take milk from a hotel whereas the case of the accused/appellants Raeesuddin, Najamuddin, and Javed is that the incident took place inside their house. The evidence produced by the prosecution in this case clearly shows that there was no previous enmity between the parties but unfortunately on the preceding night there was exchange of hot words between the parties over payment of money which the accused/appellants had spent for providing medicine etc. To the father of complainant Noor Muhammad, and the complainant was beaten by the appellants Raeesuddin, Najamuddin and Javed for which a non- cog report was lodged by Noor Muhammad at police station and the entry regarding the same has been produced as Exh.13. Thus, it is clear that the accused/appellants had no reason to attack the complainant but it was the complainant Noor Muhammad, who had a reason to attack accused/appellants. It has been admitted by the complainant that P.Ws. Ayub, Yasin and Yaqoob are real brothers. P.W. Yasin is son-in-law of his maternal-uncle Rafique. While P.W. Abdul Aziz is son-in-law of deceased Muhammad Shah. P.W. Fatch Muhammad is brother of the complainant.
62. Yasin resides two furlongs away from the place of incident and all the three brothers are living with their father in one and the same house as admitted by complainant at page 109 of the paper hook.
63. According to the complainant he was going to Hotel of Mulla Muhammad Shah for the purpose of purchasing milk. There is one Wara 'cattle pen' on the backside of his house. The milk is available in the Wara. He has further admitted at page 104 of the paper book that the way to Wara behind his house is more short than the way to hotel of Mulla. It is also admitted by complainant that his deceased uncle used to permanently reside in Sherabad Landhi Colony 'K' Area. From the above admissions made by the complainant it is clear that there was a Wara 'cattle pen' available on the back side of the house of the complainant where milk used to be sold and this Wara was nearer to the house of the complainant than the hotel. It is also clear that witness Yasin and others were not residents of locality where the incident took place but they used to reside about two furlongs away from the place of incident. It is further clear that deceased Muhammad Shafi was uncle of complainant Noor Muhammad, and the P.Ws. And complainant were related inter se. Specific questions were put to the complainant and witnesses in cross-examination that the incident took place inside the house of the accused/appellants and that the complainant and P.Ws. Entered the house of accused Raeesuddin, Javed and Najamuddin duly armed with Chhuris and sticks and caused them injuries inside their house but the same were denied. It was further suggested in cross-examination that in such attack persons on both sides were injured. Even it was denied that accused Raeesuddin, Najamuddin and Javed had sustained injuries in the fight. However, the evidence of Dr. Captain Bashir P.W.13 shows that on 9-8-1983 the police had referred injured/accused Raeesuddin, Najamuddin and Javed to him for examination and treatment with regard to the injuries on their person. On examination he had found six injuries on the person of Raeesuddin out of which injury No,2 was grievous, seven injuries on the person of Najamuddin out of which injury No,1 was on the center of forehead of injured Najamuddin, while Javed Ahmed had eight injuries. He has also produced the medical certificates and supplementary certificates as Exh.44 to Exh.49.
64. ' In addition to the above medical evidence there is evidence of S.H.O. Chaudhry Muhammad Ashraf P.W.14, who has stated in examination-in-chief that all the three accused persons (Shakeeluddin, Najamuddin and Javed) had injuries on their persons and therefore, they were referred to the hospital for their treatment. He has further admitted in cross-examination (at page 253 of the paper book) that from the evidence and the statements of the witnesses produced by accused Raeesuddin it was proved that the place of incident in his case was inside the house. He has also admitted that the place of Wardat in the F.I.R. Lodged by complainant Noor Muhammad was in front of Quarter No,H-403 (which belonged to accused Raeesuddin). From the above discussion and from the evidence of Dr. Captain Bashir and Investigating Officer Chaudhry.
65. Muhammad Ashraf it is clear that the three appellants had also sustained injuries during the same incident and the incident took place inside the house of the appellants. The appellants have specifically suggested to the complainant and witnesses in cross-examination that they had formed unlawful assembly and had attacked them in their house after making necessary preparation. From the circumstances as discussed above, it is clear that it was the complainant, who had a motive to attack the accused/appellants. The defence version about attack appears to be plausible in view of the fact that the witnesses were near relations of the complainant and all of them including deceased Muhammad Shafi except P.W. Ghulam Nabi had conic from a distant place. They have failed to explain injuries on the persons of the accused/appellants. It will not be out of place to mention here that initially it appears that S.H.O. Chaudhry Muhammad Ashraf was reluctant to record the F.I.R. Of accused Raeesuddin. It is further clear that he did not mention the injuries found on the persons of the appellants at the time of arrest in the Mashirnama of arrest dishonestly. However, since the accused/appellants had number of injuries, the same could not be suppressed and he had to refer them to the medical officer for examination and treatment. It also appears that since the appellants were in custody, their mother went on moving higher authorities for taking action against S.H.O. And recording of counter F.I.R. There is another aspect of the case which cannot be overlooked i,e, presence of respondent Shakeeluddin at the place of incident and his participation. According to complainant Noor Muhammad accused/respondent Shakeel was armed with Saria (iron rod) and he had caused injuries alongwith others to injured Muhammad Rafique uncle of complainant but surprisingly enough there were only three injuries on the person of injured Muhammad Rafique one on his right wrist, other on his right forearm and 3rd on front of right chest and out of the three injuries, injuries Nos.1 and 2 were caused by blunt weapon. However, as far as P.Ws. Muhammad Ismail, Ghulam Nabi, Muhammad Waseem and Muhammad Yaqoob were concerned, they have deposed that when many persons collected at the place of incident accused Shakeel escaped and went to the roof of his house and started thrown cement blocks on the witnesses and one of the blocks thrown by Shakeel hit on the head of Muhammad Shafi, as a result of which Muhammad Shall fell on the ground. This part attributed to accused/respondent Shakeel is in total conflict with the F.I.R. As well as evidence of complainant Noor Muhammad. Even it is in conflict with the medical evidence inasmuch as according to the post-mortem report deceased had only two incised wound injuries and had no blunt weapon injury on his person according to the post-mortem report. However, the initial medical certificate issued by Dr. Kamaluddin does show that the injury No,3 was lacerated wound 1 x 1/2" scalp deep at right front temporal region. However, from the dimensions of the injuries it is clear that the same could not be caused by a cement block. In addition thereto the respondent has taken a plea of alibi which is supported by ocular as well as documentary evidence. He has examined Muhammad Shahtad Hussain, Advocate D.W.1 from Bahawalpur, who has stated that on 9-10-1983 his wife Maqsood Jehan had executed agreement of sale in respect of a plot situated in Quetta Town, Karachi, in favour of accused Shakeel. He himself had signed the agreement as a witness so also one Sajjad Hussain. This agreement was drafted by Petition-writer Ajmal Hussain. He has produced photo copy of the agreement as Exh.62, photo copy of allotment as Exh.64 and original plan as Exh.65 D.W. Ajmal Hussain and Sajjad Hussain witnesses of execution of sale agreement haw fully supported the respondent. There is also evidence of one Ghulam Jilani Sub-Inspector D.W.5, which shows that the accused/respondent Shakeeluddin was on leave from 8-8-1983 to 7-10-1983. He has produced the entry regarding departure of accused Shakeeluddin on earned leave on 8-8- 1983 as Exh.71 and application for leave as Exh.74. From the above discussion, it is proved that accused/respondent Shakeeluddin was not present at the place of Wardat on the day of incident which is further supported by the fact that he had no injury on his person when he was arrested, and he was falsely implicated by the complainant and P.Ws. Because he happened to be brother of co-accused.
66. Adverting to the case of appellants Raeesuddin, Javed Ahmed and Najamuddin, it has been proved that the incident took place inside their house and they had received number of injuries which have not:bpi explained by the prosecution. They had specifically suggested to the witnesses in cross-examination that they had attacked the accused in their house and had sustained injuries in the fight but this suggestion was denied. In the case of Ghazi Khan and another v. The State PLD 1965 (W.P.) Quetta 33, it was observed that:- "The plea of the right of private defence could still he allowed even if it is not specifically pleaded by the accused, provided such an inference is warranted from the evidence on the record which of course should be very clear, and secondly, the right of private defence could even be allowed on the basis of the solitary statement of the accused himself provided it was found to be reasonably possible creating a reasonable doubt regardingethe truth of the prosecution case."
67. ' It was further observed that:-- "Obviously the appellant had no apprehension of death but it only stands to reason that defence in cases of an aggressive attack by several armed persons cannot be minutely planned in calculated manner to be modulated step by step according to the attack, nor can the blows in such circumstances be weighed in golden scales."
68. ' It was further observed that:-- "For entitlement to the benefit of an exception meriting acquittal, the test is not whether the accused has proved beyond a reasonable doubt that he comes within any exception but whether in setting up any defence he has created reasonable doubt in the case of prosecution and thereby earned his right of acquittal. Even if the evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the exception pleaded, the accused will clearly entitle himself to acquittal if upon a consideration of the evidence, as a whole, a reasonable doubt is created in the mind of the Court (whether the accused is or is not entitled to the benefit of exception)."
69. ' In the case of Jumma v. The State 1968 P Cr. L J 352 it was observed ' that:-- "It is well-settled that if a reasonable possibility of such a plea favourable to the accused could be spelt out from the circumstances of the case, the omission on the part of the accused person to raise the same or to take an inconsistent position would not he fatal to his defence." .In the above case, reliance was placed on the case of Ali Zaman v. The State PLD 1963 SC 152.
70. ' In the case of Inayatullah and another v. The State PLD 1966 (W.P.) Lah. 8; it was observed that:-- "It would be wrong in principle to hold that the petitioners were aggressors, merely on the basis of the fact that the complainant and his son suffered greater number of injuries than the injuries suffered by the accused without taking into consideration surrounding circumstances of the case."
71. ' It was further observed that:-- "The failure on the part of the prosecution to explain injuries sustained by the accused, this omission coupled with the genesis and the manner of occurrence makes the prosecution version highly doubtful, and it lends support to defence plea of right of private defence which it is pertinent to point out was raised at the earliest stage of the proceedings. It is true, that the account given by the two witnesses as to how injuries were received by P.W. Hadayatullah is unconvincing but it is a normal incident of an 'adversary proceeding' to minimise one's own part in the incident."
72. ' It was further observed while relying upon the case of Ghulam Oadir v. The State PLD 1959 Lah. 573 that:-- "When right of private defence of a person or property is available in law, the Courts have always viewed with indulgence the acts of a person who in the heat of the moment under a strong feeling of self-preservation working on him pursues his defence a little further than is absolutely necessary. It has often been said that the right of private defence could not be weighed in golden scales."
73. ' In the case of Ahmed Din v. Faiz Ahmed and 2 others 1972 SCMR 549; the accused were acquitted by the High Court on the plea of right of private defence. The complainant filed petition for Special Leave to Appeal on the ground that the deceased received three injuries whereas accused had received one injury and, therefore, the accused had exceeded the right of private defence, but the contention was repelled by their Lordships and it was held that:-- "The mere fact that the deceased received three injuries whereas Hashim got only one does not by itself show that Hashim had exceeded the right of self-defence. His right to defend himself continued as long as he had reasonable apprehension of harm from his adversary. It is well- recognized that the right of self-defence cannot he modulated step by step nor can it be measured in golden scales." ' and the petition was dismissed.
74. ' In the case of Nasarullah and another v. The State 1985 SCMR 1715; the appellants were convicted under sections 302 and 326, P.P.C. They filed appeal before the Honourable Supreme Court against their conviction and their Lordships of the Supreme Court were pleased to observe as under:-- "The suppression of the injuries of appellant Nasrullah by all the eyewitnesses, his counter-version getting support from the recoveries from complainant's house make the prosecution case of one sided attack highly doubtful and lend credence to the plea of the appellants." ' the appeal was allowed and the appellants were acquitted.
75. In the present case the three appellants have injuries on their persons and the same have not been explained by the prosecution. The complainant, Noor Muhammad had a motive to attack the appellants and the eye-witnesses who are near relations of the complainant as well as deceased Muhammad Shat came from a distant place and the admission of Investigating Officer that the incident took place inside the house of the appellants goes a long way to show that the defence of the appellants was true.
76. ' As far as the evidence of recovery of weapons from the appellants was concerned, it is contradictory, unnatural and unreliable. The evidence of Mashir Muhammad Wasim P.W.4 shows (at page 140 of paper book) that he was sitting in the hotel when police party came and arrested all the four accused persons and prepared such Mashirnama which he has produced as Exh.17-A.
77. Then all the accused persons were taken to the police station and after shortwhile, (about 15 minutes) brought back accused Races and Najamuddin to their houses. He was called by the police to act as Mashir, thereafter accused Races and Najmuddin led the police party into their house, Raees took out a dagger from the lower part of the Almirah which was blood-stained.
78. Thereafter accused Najmuddin took out an iron rod from the back of Almirah. Police prepared such Mashirnamas and obtained his signatures. According to him Mashirnamas Exh.17-B and 17-C respectively are the same. Thereafter, after five/ten minutes, the police brought back accused Javed to his house who led the police to his house and produced the Chhuri from the back of the Almirah which was blood stained. The police prepared such Mashirnama and obtained the signatures which is Exh.17-C. In cross-examination he has said the article 'A', which shows it was secured from the possession of accused Javed, was not scaled by the police in his presene. Article B' on which it is written that it was recovered from the appellant Races he cannot give its length, the room from where the accused persons had produced the incriminating articles before the police was about 12' to 14', the incriminating articles were lying in between wall and almirah. His National Identity Card has been lost. He has denied a suggestion that he is not Wasim, who had signed the Mashirnama (Note: the deposition shows the father's name of witness Wasim as Muhammad Naeem whereas the Mashirnamas of recovery show Wasim son of Mustaqim. The witness does not claim that his father was called with the name of Mustaqim as well). Mashirnama Exh.17-B shows that accused Raeesuddin had alone produced the article while Mashirnama Exh.17-C shows that accused Javed had produced one blood-stained Chhuri from the backside of a steel almirah and accused Najmuddin also produced one Saria (iron rod) blood-stained from the back side of steel almirah, ' The evidence of Investigating Officer, Ch. Muhammad Ashraf shows that after the arrest of three accused he interrogated them and on interrogation accused Raees produced blood-stained dagger, for which he prepared Mashirnama as Exh.17-B, accused Javed produced blood-stained Chhuri from the backside of Almirah while accused Najmuddin produced an iron rod from the same place and he prepared such Mashirnama which has been produced as Exh.17-C. In cross- examination (at page 262 of the paper book) he has stated that after the arrest of the accused persons he did not take them to police station before recovery of articles mentioned in Exh.17-B and Exh.17-C.
79. ' From the above discussion, it is clear that on one hand the evidence of recovery is contradictory inasmuch as according to Mashir, accused were taken to police station after their arrest and were brought to their house for recoveries after some time whereas Investigating Officer has stated that he did not take accused to the police station before making recoveries. The evidence further shows that the iron rod and Chhuri were lying together in between almirah and the wall and there is no evidence that the almirah from which dagger was produced by the accused was locked. Since the house was occupied by three appellants and their brother Shakiluddin and other members of the house it cannot be said that these articles were recovered from the exclusive possession of the appellants. Moreover, there was long delay in sending the articles to the chemical examiner for which the S.H.O. Has failed to make any explanation. The articles are alleged to have been recovered from the appellants on 9-8-1983 and the same were tent ent to the chemical examiner on 5-2-1984. In view of the above circumstances and the fact that the Mashir who was examined in the case appears to be a different person than the one who had signed the Mashirnama, no reliance could be placed on the recovery.
80. ' From the above factual as well as legal position we arc of the considered view that the appellants Raees, Najmuddin and Javed had a complete right of private defence and, therefore, their Criminal Appeal No, 72 of 1983 is allowed, their conviction and sentences are set aside and they are acquitted of the charge. They shall be set at liberty forthwith if not required in any other case.
81. ' As far as acquittal appeal filed by the State against the acquittal of respondent Shakil was concerned, the same was not pressed by Mr. K.M. Nadeem, learned A.A.-G. Appearing for the State.
82. Even otherwise we have gone through the evidence produced by the prosecution as well as the accused/respondent. The prosecution evidence is contradictory and is belied by medical evidence whereas the plea of alibi taken by the respondent is fully supported by documentary and ocular evidence which is independent, natural and reliable. The learned trial Judge has given cogent reasons for the acquittal of the respondent and the judgment does not suffer from any infirmity and as such does not call for interference from this Court and, therefore, the acquittal appeal is dismissed.
83. ' As far as Criminal Revision No,18 of 1988 was concerned, Mr, Azizullah K. Shaikh, learned counsel appearing for the applicants has contended that the learned trial Judge has failed to give reasons for awarding lesser sentence to appellant/accused Raeesuddin. There is no doubt that the learned Judge should have given reasons for awarding lesser sentence to appellant/accused Raeesuddin but in view of the fact that we have accepted his appeal and acquitted him, the present revision has become infructuous and is accordingly dismissed.
84. ' We have decided the above matters on 29-8-1989 by a short order, and these are the reasons for the same.