' KHALIL-UR-REHMAN KHAN, J.---This appeal was heard on 2-11-1998 and judgment was reserved.
On 11-11-1998 the appeal was dismissed vide short order announced in the following words:-- "This appeal is directed against the judgment, dated 25-2-1992 of the learned Federal Shariat Court whereby the sentence of the respondent Nazir Ahmad under section 302, P.P.C. Was converted from death to life imprisonment. The appellant/complainant prays for the enhancement of the sentence to Nazir Ahmad under section 302, P.P.C. To death. For the reasons to be recorded later this appeal is dismissed."
' The following are the reasons for our short order reproduced hereinabove..
2. Leave to appeal was granted to Ahmad Khan appellant in this appeal for reappraisal of evidence so as to examine the correctness of the reasons given for A the acquittal of respondents Nos.2 and 3 (Bashir Ahmad and Tanveer Ahmad sons of Faqir Muhammad) and for not awarding the sentence of death to Nazir Ahmad, respondent No 1.
3. Nazir Ahmad was tried alongwith Bashir Ahmad, and Tanveer Ahmad his brothers, pursuant to the F.I.R. Lodged by Ahmad Khan appellant on the allegation that on 23-4-1989 a small boy Muhammad Afzaal. Aged about 9/10 years, resident of Abadi Jhand Singwali, Faisalabad was returning from his school to his home at 12-30 hours. When he reached near the house of Muhammad Anwar, which was being repaired by respondent No,1 Nazir Ahmad, the said boy was called inside by respondent No,1 Nazir Ahmad who attempted to commit sodomy with the boy. The latter raised alarm and was rescued by Muhammad Shabbir. On reaching the home the said boy narrated the occurrence to his uncle Rana Muhammad Hussain. The latter and his other relative Fateh Muhammad abused respondent Nazir Ahmad. The latter and his brothers Bashir Ahmad and Tanveer Ahmad came armed with daggers at the spot. Accused Bashir Ahmad gave a dagger blow to Fateh Muhammad on abdomen and accused Nazir Ahmad gave a dagger blow , to Rana Muhammad Hussain on the left side chest. The latter died at the spot. Accused Tanveer Ahmad was ordering his brothers to kill both. In the meantime Muhammad Shabbir and Muhammad Anwar also arrived at the spot and saw the occurrence. All the three accused escaped after committing the offence. The injured Fateh Muhammad was taken to the hospital by the aforesaid Muhammad Anwar whereas Ahmad Khan complainant went to the police station and recorded F.I.R. No,97 at 2-30 p.m.
4. The accused/respondents were arrested on 27-4-1989 and on 1-5-1989 while they were in Police custody, on their pointation two blood-stained daggers and one other dagger were recovered by the Investigating Officer. Nazir Ahmad and Tanveer Ahinad accused were also injured and were got examined from Dr. Rashid Maqbool P.W.12 on 2-5-1989. Following injuries were found on the person of Nazir Ahmad:-- "(1) A stitched wound 5 c.m. Alongwith 5 stitches intact on top of the head in the middle.
(2) A stitched wound 2 c.m. Alongwith 2 stitches intact on the left back of the head.
(3) An abrasion 3 c.m. x 1-1/2 c.m. On the back of the left forearm in the middle."
' The injuries noted on the person of Tanveer Ahmad in the report are as under:-- "(1) A stitched wound 5 c.m. Alongwith 5 stitches intact on right side of head in middle.
(2) A stitched wound 3-1/2 c.m. Alongwith 3 stitches intact on left side of head on the back part.
(3) A lacerated wound 1/2 c.m. x 1/2 c.m. x muscle deep with pus coming out of wound on back of the little finger in middle."
' According to the opinion of the doctor, the injures were caused between 9 to 14 days by blunt weapon and were simple in nature.
5. The same doctor (Dr. Rashid Maqbool P.W.12) performed the autopsy on the dead body of Rana Muhammad Hussain on 24-4-1989 and had found the following injuries on his body:-- "(1) An abrasion 1/2 c.m. x 1/2 c.m. On right side of forehead, near hair line 4 c.m. From mid-line.
(2) An abrasion 2-1/2 c.m. x 1/2 c.m. x 1-1/2 c.m. On above right eyebrow.
(3) An abrasion 1-1/2 c.m. x 1 c.m. x 1/2 c.m. Above injury No,2.
(4) An Abrasion 1 c.m. x 1/2 c.m. On the bridge of the nose in the upper most part.
(5) An Abrasion 1-1/4 c.m. 1/2 c.m. On the right cheek 3 c.m. Below the right eye.
(6) A lacerated wound 2 c.m. x 1/2 c.m. x up to bone deep in the middle of the chin.
(7) An abrasion 2 c.m. x 1-1/2 c.m. On the back of the right elbow.
(8) A stab would 3-1/2 c.m. x 1 c.m. On the left front of the chest, 3-1/2 c.m. From mid-line and 18 c.m. Below the left clavical."
' There were, thus, six abrasions of very minor size and a stab wound on the chest. Dr. Masood Ahmad Bokhari P.W.13 examined Fateh Muhammad P.W.6 on 23-4-1989 and the injury found on his body was an incised wound 4 c.m. x 1.4 c.m. x D.N.P. At outer and upper side of left thigh. This injury was declared grievous caused by sharp-edged weapon.
6. The prosecution at the trial produced Fateh Muhammad, the injured witness P.W.6, Ahmad Khan, complainant P.W.7 and Muhammad Sabir, P.W.8, as eye-witnesses of the occurrence whereas Muhammad Afzaal P.W.9 is a witness about the prior incident. According to the eye-witness account the prosecution story is that accused Nazir Ahmad, respondent No,1 had attempted to commit sodomy with Afzaal, who raised alarm which attracted Muhammad Shabbir who rescued the boy. Thereupon, the deceased Rana Muhammad Hussain and Fateh Muhammad P.W.6 insulted the accused after going to the house where he was working, and in order to take revenge of the said insult the three accused came armed with dagger and attacked the complainant party.
Bashir Ahmad respondent No,2 caused dagger injury to Fateh Muhammad P.W.6 whereas Nazir Ahmad respondent No,1 committed the murder of Rana Muhammad Hussain by giving a dagger blow on his chest.
7. The prosecution witnesses at the trial improved their version as they deposed that both the parties at first exchanged brick bats causing injuries to each other and thereafter, Rana Muhammad Hussain deceased and Fateh Muhammad P.W.6 were caused injuries by the two accused namely Nazir Ahmad and Bashir Ahmad. It also comes out from the evidence on record that Tanveer Ahmad accused, the third brother, as per version of the prosecution had reached the spot armed with dagger but no active role was attributed to him either in the F.I.R. Or during the trial. He (Tanveer Ahmad) as per medical evidence had received three injuries out of which two were on the head and the third was a lacerated wound on the little finger. Two head injuries were stitched wound 5 c.m. Long with 5 stitches on right side of head in middle and another stitched wound 3-1/2 c.m. Long with 3 stitches on left side of head on the back part. Bashir Ahmad, respondent No,2 who was claimed to have given dagger blow to Fateh Muhammad was found not to have received any injury.
8. The defence version as emerging from the cross-examination of the prosecution witnesses as well as from the statements under section, 342 Cr.P.C. Was that the boy Muhammad Afzaal was interfering with the instruments of work of accused Nazir Ahmad and he asked him not to do so which annoyed the boy who narrated the occurrence to his elders and who feeling annoyed insulted Nazir Ahmad and give him two slaps, and then came armed with Dangs and gave beating to Nazir Ahmad respondent No,1 and Tanveer Ahmad respondent No,3 with Dangs causing injuries on the head on which Nazir Ahmad, who was in possession of Sathri (an instrument of work of a carpenter) gave one blow each to Fateh Muhammad and Rana Muhammad Hussain. Bashir Ahmad accused/respondent No,2 was not present at that occasion and that had Nazir Ahmad not reacted in self-defence, he and his brother Tanveer Ahmad would have been done to death by Rana Muhammad Hussain deceased and Fateh Muhammad P.W.6. Nazir Ahmed added that they are poor moeens while Muhammad Hussain deceased was a terror in that area and was required by the police in many cases.
9. The accused produced Akbar Ali, retired D.S.P. D.W.1, and Muhammad Wan Elahi Moharrir/Head Constable D.W.2, in defence. Akbar Ali D.W.1 deposed that he was posted as D.S.P./S.D.P.O, Police Station Peoples Colony, Faisalabad and was entrusted with the investigation of this case by order of S.S.P., dated 21-5-1989 and during investigation the defence produced 22 persons in support of their case that they were attacked by the deceased party and that the accused Nazir Ahmad and Bashir Ahmad (again said Tanveer Ahad and not Bashir Ahmad) were injured by the deceased party. He added that out of 22 persons whose statements were recorded by him, there were 7 eye- witnesses and all the 22 person supported the plea of self-defence of the accused. He further deposed that all the above 22 persons confirmed the place of occurrence in front of house of Amir Ahmad son of Ali Muhammad and those persons told that at the time of occurrence, both accused namely Nazir Ahmad and Tanveer Ahmad were working as carpenters in the house of Amir aforesaid. He opined that he found the plea of self-defence of accused to be correct in the investigation but added that as the challan had been submitted he directed them to present their defence before the Court. In cross-examination he accepted the suggestion as correct that he verified the investigation, the recoveries made by the Investigating Officer and found them correct vide case diary No,7, dated 1-5-1989. At this stage we may note that on perusal of the Police file we have noted that Akbar Ali, D.S.P. In the capacity of S.D.P.O. Had appended his signature on the diary No,7, dated 1-5-1989 on which date the recoveries of Chhurris at the pointation of three accused was noted in the said diary but there is no specific mention that S.D.P.O. Had verified the said fact from the accused.
10. Learned trial Court, vide judgment, dated 23-9-1991 convicted Nazir Ahmad under section 302, P.P.C. And sentenced him to death to pay a fine of Rs,10,000 or in default to undergo R.I. For one year. He (Nazir Ahmad) was also convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer R.I. For 10 years, twenty stripes and also to pay a fine of Rs,10,000 or in default to further undergo R.I for one year. On one count half of the fine in case of realization was to be paid to the legal heirs of the deceased Rana Muhammad Hussain and on the other count half of the fine in case of realization was to be paid to Muhammad Afzaal P.W.9 as compensation. Bashir Ahmad accused was convicted under section 307, P.P.C. And sentenced to 10 years' R.I. And a fine of Rs,5,000 or in default to further undergo R.I. For 6 months and half of the fine, if realized, was ordered to be paid as compensation to Fateh Muhammad P.W.6. Tanveer Ahmad, respondent No,3 was, however, acquitted.
11. Nazir Ahmad and Bashir Ahmad respondents Nos.1 and 2 challenged their convictions and sentences by filing appeal. Ahmad Khan complainant filed revisions for enhancement of sentence of accused Bashir Ahmad and for setting aside the acquittal of Tanvir Ahmad. Ali these matters were disposed of by the learned Judges of the Federal Shariat Court under the impugned judgment in the manner that Bashir Ahmad respondent No,2 was acquitted, his conviction and sentence were set aside, conviction and sentence of Nazir Ahmad under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were also set aside but while maintaining his conviction under section 302, P.P.C. His death sentence was converted into life imprisonment and fine awarded to him was, however, maintained. Ahmad Khan, appellant/complainant filed a petition for leave to appeal before this Court and leave to appeal was granted to him for reappraisal of the evidence for examining the correctness of the reasons given for acquittal of the two co-accused and for not awarding the sentence of death to Nazir Ahmad. Tanveer Ahmad, respondent No,3 has died in the meanwhile but the role attributed to him and the injuries found on his person will have to be kept in view in assessing the correctness or otherwise of the prosecution version.
12. Rana Ijaz Ahmad Khan, Advocate, learned counsel for the appellant argued that the prosecution version stands established by the evidence of Fateh Muhammad P.W.6, the injured witness, Ahmad Khan P.W. 7 and Muhammad Shabbir P.W.8 read with the testimony of Muhammad Afzaal P.W.9, the victim of sodomy and the recovery of blood-stained chhurris/daggers from Nazir Ahmad and Bashir Ahmad. According to him, Malik Kamal Din P.W.10 proved these recoveries and the ocular account deposed by these witnesses gets full support from the medical evidence of the two doctors namely Dr. Rashid Maqbool P.W.12 and Dr. Masood Iqbal Bokhari P.W.13.
' He argued that omission of minor details by the prosecution witnesses as to exchange of brick- bats. And the injuries received by Nazir Ahmad and Tanveer Ahmad accused, have been given undue importance by the learned Judges of the Federal Shariat Court, and while rejecting the prosecution version in part, have failed to advert to the reasoning recorded by the learned trial Court for convicting the respondents. He urged that the judgment of the trial Court merits to be restorted.
13. Mr. Rafique Ahmad Bajwa, Advocate learned counsel for the respondents on the other hand submitted that Ahmad Khan complainant, who lodged the F.I.R. Does not claim to be an eye- witness but at the trial he made many improvements in his version which show that he was claiming to be an eye-witness, though he emphasized that even for the first incident of alleged commission of sodomy he was not an eye-witness as it was admitted that the said incident was told to him by Muhammad Shabbir and Muhammad Afzaal. The same is the position with regard to the version that Fateh Muhammad P.W.6 and Rana Muhammad Hussain deceased had on coming to know of the alleged attempted sodomy abused Nazir Ahmad and gave him slaps. It was also told to him by Fateh. Muhammad P.W. And Rana Muhammad Hussain deceased, who had statedly met him in the street and had told him that they were going to Nazir Ahmad for seeking his explanation. It was further pointed out that Ahmad Khan complainant on his own admission was at best statedly present only when main occurrence in which dagger blows were given by Nazir Ahmad to Rana Muhammad Hussain and Fateh Muhammad, took place. But here also no mention was made by him of the exchange of brick-batting in the F.I.R. This exchange of brick-batting had to be introduced at the trial to provide an explanation of the injuries on the person of two accused namely Nazir Ahmad and Tanveer Ahmad noted by the doctor. It was next contended that the story of exchange of brick batting fails to provide explanation of the injuries found on the person of the two accused as those injuries could not had been caused by pelting stones. According to the learned counsel for the respondent, seeing the location and size of the injuries it was apparent that these injuries were caused by Dang blows and could not be result of pelting of stones.
14. Mr. Zaman Bhatti, learned counsel for the State supported the case of the prosecution.
15. We have considered the respective submissions of the learned counsel for the parties and have also gone minutely through the evidence on record as well as the judgments of the learned Courts below. The basis of the main occurrence in which the fatal Chhurri blow was received by Rana Muhammad Hussain and grievous injury by Fateh Muhammad P.W.6 is the alleged incident of attempt to commit sodomy on Muhammad Afzaal. Version of Ahmad Khan P.W.7/complainant in the F.I.R. In this respect is that Muhammad Afzaal was coming from school at about 12-30 noon and when he reached near the house of Muhammad Anwar, he was called by Nazir Ahmad inside the house and then did certain actions with a view to do bad act Muhammad Afzaal P.W.9, the alleged victim at the trial deposed that he was coming at 12 noon from his school and when he reached near the house of Muhammad Anwar, Nazir accused called him in the said house of Anwar, he kissed him and untied his string of Shalwar on which he raised shrieks which attracted Shabbir P.W.
On the spot and who rescued him from Nazir and reprimanded him for this act and took him alongwith himself. He added that they were coming towards their house and in the street Haji Ahmad Khan complainant met them and he was informed of the whole story. He and Shabbir P.W.
Went to the house where he narrated the above incident to his grandfather Fateh Muhammad P.W.6 and Rana Muhammad Hussain deceased, his paternal uncle. In cross-examination he refuted the suggestion as incorrect that his school closes at 2-30 p.m. He was confronted with Exh.DB where it was so recorded. He further stated in the cross-examination that he did state before the Police that Nazir accused had kissed him at this face and had untied string but on confrontation with Exh.DB it was not found so recorded. The other replies given in his cross- examination being relevant are reproduced hereunder:-- "I had stated before the police that after my rescue, Shabbir P.W. Had reprimanded Nazir accused.
(Confronted with Exh.DB where it is not so recorded). I had stated before the police that Shabbir P.W. Took me towards my house. (Confronted with Exh. DB, not so recorded). I had stated before the police that on our way to my house we came across Haji Ahmad Khan P.W. To whom. I narrated the incident. (Confronted with Exh.DB, not so recorded). I had stated before the police that I had narrated the incident to my grandfather Fateh Muhammad at my house. (Confronted with Exh.DB, where the name of Fateh Muhammad is not mentioned about telling the story)."
16. Muhammad Shabbir P.W.8 in his examination-in-chief stated that he was coming from school by taking his children and when he reached at the house of Muhammad Anwar, he heard the shrieks, went inside and saw that the accused Nazir was kissing Afzaal P.W. And he had untied his string. He asked the accused Nazir why he was doing this shameful act and caught hold of Afzaal and took him alongwith him. After rescuing him, when they were going to the house, on their way Haji Ahmad Khan met them and they told him the incident and then they went to the house of Fateh Muhammad where again Muhammad Afzaal narrated the incident to Fateh Muhammad and Rana Muhammad Hussain. In respect of this incident the statement made by him in cross- examination reads as under:-- "My statement was recorded by the police on the same day at about 4-30 p.m. At the spot. I had stated before the police that on the same day at about 12/12-30 noon I was coming from school for taking my children. (Confronted with D.A. Where it is not so recorded). I had stated before the police that when I reached near the house of Anwar son of Amir, I heard noise of shrieks. (Confronted with Exh.DA where it is not specifically recorded). I stated before the police that when I went to the house running, I saw that the accused Nazir was kissing Afzaal P.W. And he had untied his string.
(Confronted with Exh. DA of the date of 23-4-1989 where it is not so recorded). I had stated before the police in Exh.DA that I asked accused Nazir why he was doing this shameful act. (Confronted with Exh.DA of the date of 23-4-1989 not so recorded). I had stated in Exh.DA that I caught hold of Afzaal and took him alongwith me. (Confronted with Exh.DA not so recorded). I had stated before the police in Exh.DA that on our way, we met Haji Ahmad Khan and we told him the whole story and then we went to the house of Fateh Muhammad (Confronted with Exh.DA not so recorded). I had stated before the police in Exh.DA that Muhammad Afzaal P.W. Narrated the whole story to Muhammad Hussain and Fateh Muhammad and I also verified the same (Confronted with Exh.DA, not so recorded). I stated before the police in Exh.DA that I took my children to my house from the house of Fateh Muhammad (Confronted with Exh.DA, nor so recorded)."
17. Ahmad Khan complainant P.W.7 as regards first incident deposed in cross-examination as under:-- "It is correct that I stated in the F.I.R. That at the time of first incident, I was present in the street.
(Confronted with Exh.PC where it is not so recorded). I had stated in Exh.PC that Afzaal and Shabbir P.Ws. Met me in the street and narrated the first incident. (Confronted with Exh.PC, not so recorded).
Volunteered that it was not incorporated in Exh.PC because the Thanedar was in league with the accused."
18. The answers given by the three witnesses in the cross-examination are sufficient to cause doubt on the version of the prosecution as regards the very basis of the main occurrence in which the injuries were caused to the deceased and the injured P.W. Fateh Muhammad. Again ocular account with regard to the second incident of giving slaps to Nazir Ahmad on receiving the information as to shameful act of attempted sodomy and giving of thereats by Nazir accused, as deposed to by the prosecution witnesses, is not confidence inspiring. Ahmad Khan P.W.7 claims in his deposition that Fateh Muhammad and Muhammad Hussain met him in the street and he asked them as to where they were going and that he was told that they were going to accused Nazir for asking about the incident. In cross-examination, however, he deposed that he had stated in the Exh.PC (statement before the police) that he asked Fateh Muhammad and Muhammad Hussain as to where they were going and they told him that they were going to Nazir accused but on confrontation with Exh.PC it was not found recorded. Even his claim that he was present at about 2- 00 p.m. When three accused Nazir Ahmad, Bashir Ahmad and Tanveer Ahmad armed with Churras allegedly caused the injuries to the deceased and the injured witness Fateh Muhammad appears doubtful as in cross-examination, the answer given in this respect reads as under:-- "I had stated in Exh.PC that when the accused came at the spot, I was present at the place of occurrence (Confronted with Exh.PC where it is not so recorded), Volunteered, it was not recorded dishonestly. As the Thanedar was in connivance with the accused party so he did not correctly recorded my version, hence, I had to approach the D.S.P. And on his direction on the same day, later on, my version was recorded I did not record in my statement Exh.PC that I had witnessed the first occurrence. I had recorded in my statement Exh.PC that I myself had witnessed the occurrence of murder, (Confronted with Exh.PC where it is not so recorded. I had recorded in my statement Exh.PC that Rana Muhammad Hussain and Fateh Muhammad inflicted brick bats blows on the accused in self-defence (Confronted with Exh.PC, where it is not so recorded)."
19. It is also worth-noticing that in cross-examination the defence version as noted above was put to him, though he denied the said suggestion as incorrect. He also admitted that when the police inspected the spot, he did not pick up brick-bats, or produced them before the police and that he did not point out any brick-bats to the police during the spot inspection lying at place of occurrence. He also added in cross-examination that he did not even point out such brick-bats to the Draftsman when he visited the spot. As regards dishonest investigation, a question put to him was answered by him saying that he only made complaint to D.S.P. On first day and later on he did not make any complaint to any officer.
20. Muhammad Shabbir P.W.8 also, in respect of the latter two incidents i.e, of informing Fateh Muhammad and Rana Muhammad Hussain deceased and the main occurrence, deposed in cross-examination as under:-- "I had stated before the police in Exh.DA that I and Anwar P.W. Were coming to the house of Fateh Muhammad P.W. When we heard the Lalkara of the accused. (Confronted with Exh.DA, not so recorded). I had stated betore the police that Anwar P.W. Had escorted Fateh Muhammad injured P.W. In a rickshaw to the hospital. (Confronted with Exh.DA, not so recorded). I had stated before the police that I was deployed by Haji Ahmad Khan on the guard of dead body and himself went to the police station to lodge the report (Confronted with Exh.DA, not so recorded)."
' He also admitted in cross-examination that the accused received injuries before they inflicted injuries to the deceased and Fateh Muhammad P.W.
21. The recovery of Churris was sought to be proved by producing Malik Kamal Din P.W.10 who is not a resident of the nearby houses of the accused while the other witness namely Sarfraz was not produced. The Investigating Officer who had statedly made these recoveries had died, and thus, recovery memos. Were proved by producing another police official: The recoveries were made on 1-5-1989 while the occurrence took place on 23-4-1989. There was ample time for the accused to get rid of these Churris or at least the blood with which these were stained. The recoveries of the blood-stained Churris when there was ample opportunity to the accused to get rid of them is not ordinarily given credence.
22. The other features of the case to be noted are that according to prosecution Nazir Ahmad had given one Churri blow to the deceased while Bashir Ahmad had caused injury on the thigh of Fateh Muhammad P.W. Bashir Ahmad did not receive any injury while Nazir Ahmad and Tanveer Ahmad received two blunt-weapon injuries on the head and one injury each on other parts of the body while Bashir Ahmad did not receive any injury at all. Tanveer Ahmad was not assigned any role though he was statedly armed with Chhurri. In the F.I.R. Causing of injuries to the accused was specifically omitted and the story of brick-batting was introduced to explain away the injuries found on the person of the two accused by the doctor. But before making these improvements Bashir Ahmad had been assigned the role of giving injury to Fateh Muhammad without realizing that he had not received any injury.
23. All these features noted above establish that the prosecution has not come out with whole truth. The cause and the manner in which the main occurrence developed have not been truthfully brought out. Even the defence version cannot be accepted as a gospel of truth. In this situation, when both the parties do not take the Court into confidence by disclosing the whole truth, the Court has to sift the grain from the chaff in order to reach the truth in the light of particular facts of the case. The maxim falsus in uno, falsus in omnibus is not applicable for discarding the evidence of the witnesses as a whole and hence, so much of the evidence which is credible can be accepted. Reference may be made to the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), Shahid Raza and another v. The State (1992 SCM R 1647) and Irshad Ahmad and others v. The State and others (PLD 1996 SC 138) wherein earlier judgments were also noticed.
24. In cases of this type where the parties do not generally come out with true story, the Court is not to be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the facts and the circumstances. In the present case when we place the prosecution version in juxtaposition with the defence version we find that the parties have withheld the truth. The effort of the complainant party was to establish that this was a case of attempted sodomy on account of which the complainant party felt annoyed and not only insulted Nazir Ahmad accused but also slapped him and to take revenge of such insult, Nazir Ahmad and his brothers launched an assault and caused the death of Rana Muhammad Hussain and injured Fateh Muhammad P.W. On the other hand, the defence has tried to show that as Muhammad Afzaal was scolded as he was interfering in the work of Nazir Ahmad accused, Rana Muhammad Hussain who was a desperate character with criminal record alongwith Fateh Muhammad launched attack with Dangs on the accused party and in order to save himself and his brother Tanveer Ahmad he gave one blow each to the deceased' and Fateh Muhammad. In support of this version. Akbar Ali D.W.1 and Muhammad Irfan Ilahi D.W.2 were produced before whom certain witnesses apppeared in support of the accused and their defence plea. Muhammad Wan Ilahi D.W.2 on the basis of the record showed that Muhammad Hussain was involved in criminal cases but those persons who had appeared before Akbar Ali, retired D.S.P. In support of the defence plea were not produced at the trial. It is true that the accused, even in the absence of any evidence of his own in his defence, is entitled to support his plea of right of self-defence from the circumstances appearing from the prosecution evidence in view of the law laid down in Muhammad Yousaf v. The State (1994 SCM R 1733) and Shamshad v. The State (PLD 1963 SC 740), but in the instant case it appears that on account of some act of Afzaal or Nazir accused annoyance was caused which resulted into a fight between the complainant and the accused party wherein injuries were caused to Nazir Ahmad and Tanveer Ahmad accused whereupon Nazir Ahmad caused one injury each to deceased Rana Muhammad Hussain and to Fateh Muhammad P.W. Seeing the nature of the injuries received by Nazir Ahmad and Tanveer Ahmad accused both, which injuries were of simple Nature, nazir Ahmad accused respondent No,1 over-reacted and definitely exceeded his right of private defence by causing fatal injury to Muhammad Hussain and grievous injury to Fateh Muhammad
25. In these circumstances, respondents Nos.2 and 3, Bashir Ahmad and Tanveer Ahmad were rightly acquitted of the charge and conviction of Nazir Ahmad under section 302, P.P.C. Is well- founded and extreme penalty of death was rightly not imposed on him and he was justifiably awarded the life imprisonment while maintaining the sentence of fine and compensation. The appeal is, therefore, dismissed.
' Bashir Ahmad and Tanveer Ahmad, respondents No,2 and 3 are on bail, and Tanveer Ahmad has since died during the intgerregnum, their bail bonds are discharged.