' MUHAMMAD AFZAL ZULLAH, J.-Rafi Masih, his brother Hanif Masih, two young men and their uncle Kamma Masih were tried for the murder of Bashir Masih, aged about 35 years, by the learned Additional Sessions Judge, Lahore, who vide judgment dated 24-3-1976 acquitted Kamma and Hanif accused and convicted Rafi Masih under section 302, P. P. C. He has been awarded sentence of death and a fine of Rs, 2,000 in default whereof to suffer further R. I. For 2 years. He has also been awarded sentence of six months' R. I. Under section 324, P. P. C. For causing injuries to Nazir Masih complainant. The amount of fine, when realized, was directed to be paid as compensation to the heirs of the deceased. Rafi Masih, the convict has filed an appeal, the complainant filed a revision against acquittal and the murder reference is also before us. Criminal Appeal No, 476/76,_ Criminal Revision No, 612/76 and Murder Reference No, 25/77 are being disposed of together.
2. The occurrence took place on 31-8-1972 at 12 noon in the suburb of Lahore Thhatti Essaian Nawan Kot, which is at a distance of 3 furlongs from the Police Station, Nawan Kot. The occurrence was not reported directly at the Police Station but a report Exh. P. B. Was made at the hospital by Nazir Masih P. W. 12 which was recorded by Mr. Nasim Ahmed, S. I. P. W. 15 at 2 p.m. Formal F. I. R. Exh. P. B/1 was subsequently registered at the Police Station at 2-30 p.m. The prosecution case as contained in the deposition of the star witness, Nazir Masih P. W. 12, who is also the first informant and real brother of the deceased is as follows : "Three years before it was 12 at noon when my brother Bashir deceased came alongwith his wife in my house. I was having my meals. My brother came out of the house and I also came out of the house. My brother was standing on the shop of Faqir Muhammad P. W. And I was standing in front of the saw-mill of Yousaf. Kamma accused came there and asked my brother Bashir to accompany him so that compromise be effected between him and Rafi and Hanif accused persons. I am not aware about any dispute except that the accused persons had some quarrel with Mst. Naseem wife of Bashir deceased on the previous evening. On the second call my brother Bashir accompanied Kamma accused and went towards the street. I also followed them. Hanif and Rafi accused were standing on the roof of the house of Kamma accused just near the stairs finished. The moment Bashir reached the roof Kamma accused caught hold of him in his Japha from the back side of the deceased and the remaining accused, namely Rafi and Hanif attacked upon the deceased with the Chhuris in their hands. My brother fell on the roof. I tried to apprehend Rafi accused who gave me a Chhuri injury on the thumb of my right hand. Bashir deceased was injured by Hanif and Rafi accused persons with the Chhuris. After I was injured by Rafi accused I attended towards my injured brother Bashir. The accused persons ran away from that place. Both Rafi and Hanif took away the Chhuris alongwith them. The other wife of Bashir deceased Mst.
Hameedan who also saw the occurrence from the roof of her house and came there after crossing the street. I and Mst. Hamidan brought him out in the street and put him (Bashir) in a taxi. From there I took Bashir in the taxi to Mayo Hospital, Lahore."
3. Although in the afore-quoted deposition the witness tried to show ignorance about the details of the motive, in the F. I. R. He had stated that two days prior to the occurrence on the birth of his son, Mst. Bholan, wife of Hanif accused, congratulated Mst. Kaki, wife of Bashir deceased (sister-in-law of the witness) ; whereupon Rafi appellant reprimanded Mst. Bholan objecting to the congratulation because, as he stated, the deceased and his family are thieves and bad characters. The appellant had also given a slap on the face of Mst. Kaki. She reported this matter at Police Station, Nawan Kot. (The report is Exh. P. G. Recorded on 30-8-1972). This is not at all. The F. I.
R. Also contains the further fact that on the return of Mst. Kaki from Police Station, Hanif and Rafi accused in this case and Saddique Masib, who it appears from the evidence is their helper, abused Mst. Kaki as a protest against her reporting the matter. It was on account of this reason that Nazir P.
W. Stated in the F. I. R. That the occurrence in this case took place. It is significant to note that he had used the word '{{URDU TEXT}}' in this context.
4. The prosecution examined apart from Nazir Masih three other witnesses, who deposed about the occurrence. They are Mst. Hamidan and Mst. Shamim alias Kaki P. Ws. 13 and 14, the two widows of the deceased. Who claimed to be the eye-witnesses and Faqir Muhammad P. W. 11, a tenant of the complainant's father, who deposed about his having seen the deceased being taken to the house of the accused party. Mehraj Din, Tara Masib, P. Ws. Nos. 6 and 7 and Nasim Ahmed S. I. P. W. 15 deposed about the recoveries of Chhuris P. 4 and P. 5 at the instance of Rafi and Hanif accused.
' The medical evidence is contained in the deposition of Dr. Sabir Ali P. W.
1. He performed autopsy on 1-9-1972 at 12-05 p.m. And found the following injuries on the dead body of Bashir.
"(1) Abrasion 13/4" x 4" on the right forehead.
(2) Abrasion 14" x /3" on the right side of the nose.
(3) Abrasion 2" x 1" top of left shoulder. r
(4) Abrasion 4" x on the left knee.
(5) Stabbed wound 3/4" x 1-2" going deep on the front of the left chest 34' below the nipple at 7 O'clock obliquely.
(6) Stabbed 11" x 3/4" going deep on the front of the right chest 4" above the nipple at 10 O'Clock obliquely."
' Various organs in the chest under injuries Nos. 6 and 7 had been injured. The death was immediate and due to the injuries to the vital organs in the chest.
' Rafi appellant was also found injured. The Doctor examined him on 2-9-1972 at 5 p.m. And found the following injuries on his person.
"(1) Abrasion 3/4" x 4" front and right side of head with swelling.
(2) Abrasion 34" x 34" x l.1-2" left cheek bone.
(3) Abrasion l.3-4 x 1/3" left chin.
(4) Multiple abrasion in area 2" X 4" on the back of right hand. These were saptic.
(5) Abrasion 1.1-4" x 1" on the right knee.
(6) Abrasion 1" x 3/4" right upper outer buttock.
(7) Abrasion 3/4" X 1-2" back of left knee."
' Injury No, 1 was kept under observation and others were declared simple. All the injuries were caused with blunt weapon within about two days.
' Earlier on 31-8-1972 at about 4-45 p.m. The Doctor had examined Nazir P. W. And observed the following injuries on his person.
"(1) An incised wound 1.1-4" x 1/6" pulp deep inner back and front of distal phalynx of right thumb.
(2) Incised wound if" x 1/8" superficial front distal right finger.
(3) Linear superficial incised scratch long on the front distal right middle finger."
' Injury No, 1, noted above, was kept under observation while the other injuries were declared simple.
All the injuries were caused with sharp edged weapon. The probable duration was about six hours.
Under cross-examination the Doctor admitted that injuries of Nazir were not on vital parts. When questioned as to whether these injuries, which undoubtedly were superficial, could be self-suffered, the doctor gave .An unusual answer, namely, "had these injuries been self-suffered I would have mentioned the comments at the time of examination". Injury No, 3 on the person of Rafi appellant, according to the doctor, could not have been caused with a nail though it could have been caused by a rough substance. Injuries Nos. I and 2 on Rafi appellant could be the result of direct blows. The doctor further opined that the abrasions on the persons of the deceased and Rafi appellant could be caused by falling on the hard rough ground in the process of grappling.
6. When examined under section 342, Cr. P. C. Rafi appellant pleaded self defence both before the learned Magistrate as also at the trial. His version at the trial was as follows : "The deceased came to my house armed with a dang who injured me, grappled with me and then throttled me with the dang pressed upon my neck and in the exercise of right of private defence I injured him with a Chhuri lying on the earth where we were grappling."
' He denied that Nazir P. W. Was injured in the occurrence. He also denied the recovery of Chhuri P. 4 and prosecution version about motive. Hanif appellant raised plea of alibi, both before the Magistrate as also at the trial. His statement in this behalf at the trial was as follows : "Bashir deceased attacked my brother Rafi Masih accused who inflicted injuries on the person of the deceased in the exercise of his right of private defence and the deceased died at the spot. I was not present at the place of the occurrence at the time of occurrence as I was employed in Lahore Improvement Trust, Lahore at the relevant time of occurrence and was working at the distance of seven miles from the place of occurrence where my Officers Muhammad Ashraf Overseer, Muhammad Bashir Supervisor, and Mr. Muhammad Nasim S. H. O. Were also present alongwith other Officers."
' Other specific items of prosecution evidence put to him were denied by him. Kamma accused stated that he was falsely implicated on account of his relationship with Rafi appellant. He also denied the other prosecution allegations.
7. Hanif Masih also produced evidence in support of his plea of alibi. Muhammad Ashraf, Overseer, L. D. A. (D. W. 1) proved Attendance Sheets Exh. D. W. 1/A and Exh. D. W. 1/B and Attendance Register Exh. D. W. 1/D showing that Hanif Masih was, on the day of occurrence, working as a Baildar under him with Ticket No, 3104 on a drain being cleared at Bund Road, which was due to be inspected by the Chief Minister of the Province ; who was to perform the opening ceremony of Bund Road Pumping Station on 2-9-1972. According to this witness "the labour was working on emergency basis from 7-30 a.m. To 3-00 p.m. Without any break". The witness specifically deposed that on 31- 8-1972 Hanif Masih was present with the other labourers during the said time. Attendance entries Exh. D. W. 1/C and Exh. D. W. 1/E in this behalf were also proved by the witness. The witness himself had marked the entries in the Attendance Sheet while Bashir Supervisor had made entries in the Register. The witness further deposed that on 1-9-1972, Hanif Masih accused came to the office and gave information that a false case had been registered against him. The witness also deposed that when the police came to Bund Road, it was informed that Hanif accused was working at the spot- "cleaning the drainage during the working hours". In cross-examination, in answer to the question whether the witness had informed his Officers about false implication of Hanif, he deposed that when the police arrived, "the Officers were present at Bund Road". Muhammad Bashir Supervisor, L.
D. A. (D. W. 2) supported D. W. 1 and deposed that on 31-8-1972 he marked the presence of Hanif accused in the Register Exh. D. W. 1/D at Exh. D. W. 1/E. He also stated that on the next day on the arrival of the police at Bund Road, it was informed about the above-noted fact. In his supplementary statement this witness deposed that in fact the opening ceremony was performed on 2-9-1972, and that he had received Invitation Card (Exh, D. W. 2/A) in connection with this function. Muhammad Nasim, XEN Operations, L. D. A. (D. W. 3) also supported the alibi of Hanif accused. He deposed that the Chief Minister was to open the Pumping Station on 2-9-1972. The labour worked from 7.30 a.m. To 3-00 p.m. No rest was allowed "because there was much of work".
The witness gave direct evidence in that "on 31-8-1972 and even prior to that I and the other Officers remained present on Bund Road. Hanif accused remained present whole of the day on 31- 8-1972". This witness removed doubts, if any, with regard to the practice of making attendance entries at two places-loose Attendance Sheet and the Attendance Register. He deposed that he had issued the Attendance Sheets Exh. D. W. 1/A and Exh. D. W. 1/B on 1-8-1972 and that they were signed by him. The witness also deposed about the police having been informed about the alibi of Hanif accused. Not only this, he further asserted that the police had perused the documents.
8. The learned trial Judge believed the defence evidence produced by Hanif accused and accepted his plea of alibi. His findings in this behalf are as follows : "First of all I take up the plea of alibi raised by Hanif Masih accused. Statement of Muhammad Nazim XEN has established that he issued the Attendance Sheets, Exh. D. W. 1/A and Exh. D. W. 1/B.
The objection of the prosecution that both these attendance sheets are on loose papers comes to a lame conclusion on the simple score that such sheets are issued to mark and check the presence and from these Attendance Sheets the Attendance Register is prepared. The statement of Muhammad Bashir Supervisor D. W. 2 read with the Invitation Card Exh. D. W. 2/A has made out that the work was being carried out there on Bund Road, Lahore on 31st August 1972. Both Muhammad Ashraf Overseer D. W. 1 and Muhammad Bashir Supervisor D. W. 2 checked the presence of Hanif Masih accused at Bund Road, Lahore on 31st August 1972. The statements of D. W.
1 to D. W. 3 have established the presence of Hanif Masih accused at Bund Road, Lahore, on 31st August 1972 from 7-30 a.m. To 3 p.m. The occurrence is said to be of 12 noon. D. W. 1 to D. W. 3 are public servants and simple fact that Hanif Masih accused had been working under them is no reason to make me to disbelieve them. D. W. 1 to D. W. 3 are responsible public servants and I see no reason to disbelieve them particularly when they have stood the test of cross-examination. Any of the cutting in Attendance Sheets Exh. D. W. 1/A and Exh. D. W. 1/B are not adverse against the case of Hanif Masih accused for the simple reason that these are not in respect of his presence. Further in Attendance Register Exh. D. W. 1/D the entries of presence were made if the concerned Baildar worked whole of the day. The work was being carried out there on emergency basis and for that matter there was no question of giving the rest to the labour working at the spot on Bund Road, Lahore. It shall not be out of place to mention that according to D. W. I to D. W. 3 police party visited Bund Road, Lahore on 1st September 1972 and it was informed that Hanif Masih accused had been working on 31st August 1972 at the spot on Bund Road, Lahore. It shall not be out of place to express that even according to Naseem Ahmed P. W. 15 the plea of alibi raised by Hanif Masih accused was raised before him which means that it is not an afterthought affair during the commitment proceedings or the trial before this Court. As such I stand impressed by the plea of alibi raised by Hanif Masih accused."
9. With regard to the motive, the learned Judge doubted the prosecution evidence including the statement of Nazir P. W. However, he was of the view that the motive, its proof or otherwise are neither sufficient for conviction nor for acquittal. The statement of Mst. Kaki P. W. Was ignored on the ground that the police had recorded her statement four weeks after the occurrence. The alleged recoveries of Chhuris P. 4 and 5 were not believed. Regarding Kamma accused, learned Judge observed that the evidence was not enough against him. Moreover, the strong plea of alibi raised by Hanif Masih accused has also made doubtful the prosecution case in respect of him and about him I am not inclined to give any weight to the statements of the eye-witnesses". Nazir P. W.
Was believed because of injuries on his person. The other two witnesses, namely, Mst. Hamidan and Faqir Muhammad P. Ws. Were also believed in so far as the participation of Rafi Masih in the occurrence is concerned. Plea of self-defence was rejected because, according to learned Judge only abrasions and swelling were found on his person. He also observed that the defence had not suggested to the doctor that the blows could have been caused with a Dang. He thought that the deceased might have given blows with his head to Rafi appellant. Although he accepted the doctor's opinion that the deceased and the appellant might have grappled but according to the doctor there was no immediate danger to the life of Rafi appellant, therefore he had no right of private defence. On the above analysis the learned Judge convicted Rafi appellant and acquitted Hanif and Kamma accused having given them benefit of doubt.
10. We have gone through the evidence and have also heard the arguments addressed by all the three learned counsel. The question of motive in this case cannot be avoided as done by the learned trial Judge. A specific motive was asserted and evidence including documentary, was led in support thereof. It needed more definite opinion as to why it could not be used from the prosecution side as also whether the defence was not entitled to any benefit in this behalf. The report Exh. P. G. About motive, made by Mst. Kaki, the widow of the deceased, was not disowned by the prosecution nor the statement of Nazir P. W. In the F. I. R. Was adequately explained. The combined reading of the report Exh. P. G. And the F. I. R. Exh. P. B., show that it was then the case of the complainant party that Hanif and Rafi accused as also their brother, namely, Shafi alias Biddi had not only insulted and abused The wife of the deceased but had also given beating to her and the mother of the deceased. Nazir P. W. Dishonestly tried to change the motive part of the F. I. R. Mst.
Kaki P. W., however, could not deny it. The depositions of Nazir and Mst. Kaki, when read together, clearly show that the deceased party had a motive and grudge against the accused of such a type that if they wanted to avenge A the abuses, insult and beating to their women-folk, this would not be an unnatural conduct. Thus, we hold that in fact the deceased had a motive to attack the appellant and not the vice versa.
11. In order to counteract the foregoing realities about the motive, the prosecution relied upon the conduct of Kamma acquitted accused in that he inveigled the deceased to his house on the false pretext of a compromise on the previous incident of insult and beating to his wife-but as Nazir complainant deposed, no sooner the deceased reached the end of stairs, on the first floor of the accused's house, Kamma grasped him and the other two accused who were armed with Chhuris pounced at him and killed him. If, as already held, the motive was with the deceased for retaliation/revenge we are unable to find any cause for the aforenoted highhanded and one-sided conduct of the accused. The serious doubts thus aroused get confirmed] by very important circumstances : One, the very person who allegedly] played the treacherous role, i,e,, Kamma, has been found innocent on the finding of, as we would presently analyse, false implication of Hanif accused. In the circumstances of this case the acquittal of Kamma would also have to be treated as clean and not on account of benefit of doubt. Thus, the very basis of this part of the prosecution case which cannot exist without active participation of Kamma is removed. Two, the only so-called independent parson who supports this aspect of the prosecution case is Faqi Muhammad P. W. He is not mentioned in the F. I. R. As a witness ; his statement was recorded by the police on the third day of occurrence ; he is a tenant in the shop of the complainant ; his version about the conduct of the deceased going with Kamma is unnatural ; his deposition is full o contradictions ; he falsely named two accused Kamma and Hanif ; and c lastly, more independent persons from the thickly populated locality could have been produced to state, if true, what Hanif P. W. Gave as origin of the occurrence-for obvious reasons, they were not put as witnesses. The deceased was an employee of Omnibus Service. He was also resident of another locality. His presence at the place and time of occurrence is most unnatural. The accused could not have anticipated that he would perchance visit their locality at such odd time of the day so as to hatch a conspiracy to inveigle and murder him. For all these reasons, this part of the prosecution case is a concoction and cannot be relied upon.
12. After the rejection of the story that the deceased went upstairs to the house of the accused on account of deceit, the question arises whether it is probable that the defence version of the deceased going to the house of the accused to attack might be true. The answer is in the affirmative. The ensuing discussion would reveal more serious flaws in the prosecution case.
13. ' Learned trial Judge disbelieved the evidence on recoveries of Chhuris (P. 4 and P. 5) and treated them as `planted on various grounds, most of which are unexceptionable. This finding has not been challenged before us. We also, agreeing with the trial Court, would keep them out of consideration.
14. The plea of alibi of Hanif accused has been believed by the trial Court. Although the State has accepted this finding, the complainant has challenged the acquittal of two accused in this case, through a revision petition. We have, on the asking of his learned counsel, again scrutinised the defence evidence on alibi. The more we read it the more convincing it emerges. It is true that such like evidence can be manufactured but in order to give that finding in this case three responsible officials of the L. D. A. One being an X. E. N., who have absolutely no motive of their own, would have to be declared false witnesses for no substantial reason. Not only this, their record maintained in routine would have to be declared a forger without any justification. The entries of Hanif's presence at his job at the time of occurrence are not only on attendance sheet, which is free from an embellishments, but also in the attendance register. The defence witnessed stood the test of cross- examination, without conceding any advantage to the prosecution. On the other hand, the fact that the Chief Minister was to perform an opening ceremony for which cards were issued would show that it would be unnatural to expect the officials to ignore or permit the absence of any one concerned with the project. The X. E. N. Himself saw Hanif present working at his job. The documents showing the presence, of Hanif were presented before the police on their arrival at the Bund Road.
But they were not taken into possession by them. This shows that plea of alibi was raised at the earliest opportunity and further that if there would have been anything suspicious about the documents, so as to negate the said plea, the police might have taken them into possession to support the prosecution case, by showing that false evidence was prepared to support a false plea of alibi. We confirm the finding that Hanif was not present a the occurrence. We also hold that he successfully proved his alibi and that he was falsely implicated. There was no justification for the learned trial Court to observe (in para. 16 of its judgment), after giving definite findings (in paras. 11 and 13), about the alibi, that the acquittal of Hanif was on account of benefit of doubt. Similarly, after giving convincing reasons qua innocence of Kamma accused and after declining "to give any weight to the statements of the eye-witnesses" made against him, it was not fair to Kamma to acquit him by giving him only benefit of doubt. His was also, in fact, in the circumstances, a clean acquittal.
15. The above conclusions would react on the entire prosecution case. It is true that the principle of falsus in uno, falsus in omnibus' did not apply in Pakistan so long as we continue to accept the alien philosophy in jurisprudence ; but when general principles of Muslim Law of Evidence are applied, it would be very difficult-rather impossible, to accept the testimony of a witness against one accused, if it is found as a fact that he perjured himself qua another. No amount of corroboration would clean him of the vice of perjury. However, as the existing position of 'law declared' stands, we have to examine whether notwithstanding the findings of innocence and false implication of two accused, there is any corroboration to sustain the conviction of the third one. I e., the appellant.
16. We have carefully scrutinised the depositions of the three eyewitnesses. The findings of the learned trial Judge about the statement of Mst. Shamim alias Kaki-it has been ignored justifiably, have not been assailed before us. It cannot be denied that the so-called eye-witnesses, in their depositions, have made a medley of conflicting positions. Both Mst. Kaki and Mst. Hamidan are not mentioned in the F. I. R. As eye-witnesses, nor they figure as such in the version given in the inquest report. This gets more importance when Nazir's admission that the F. I. R. Was recorded after the preparation of the inquest report, is taken into account. Nazir Masih was duly confronted in this behalf but no explanation was offered. Nazir gave the impression that the deceased and his wife Mst. Hamidan had their residence near the place of occurrence. But Mst. Hamidan admitted that she, deceased and his other wife lived in another locality, namely Muslim Town. She had stated to the police that she had come to the spot in connection with the insult to Mst. Kaki. Even if the other contradictions are ignored, the women witnesses have failed to establish that they were in the locality when the occurrence took place. They are perfect example of chance witness, who were not named by the informant before the police and further on account of their close relationship with the deceased they have H told lies to such an extent as to falsely implicate innocent persons.
The position of Nazir is in no way better. The injuries on his person as described in para. 5 are such that they could clearly be self-suffered. Doctor's reason for a contra opinion, in his cross- examination, is to say the least most extraordinary. He said that if they could have been self- suffered, he would have stated so in his report. Obviously, at that time the question had not arisen.
When again asked about his opinion in Court, he almost refused to answer. His attitude, for cause best known to him, was unreasonable. He would have us believe that small superficial, linear wounds-- one only being pulp deep and others 1/8' x 1/6 wide on finger tip could not be self- suffered. This was an obviously incorrect opinion. We will not comment more on this aspect except to point out that ; the other so-called female eye-witnesses did not mention injuries to Nazir ; they are not mentioned in the karvai police ; nor in the inquest report ; he admitted' before the committing Magistrate that he had not shown his injuries to the doctor when he took the deceased to the hospital ; the Investigating Officer (P. W. 15) admitted that he did not observe the rules and practice about the injuries to Nazir ; and that Nazir changed his position at different stages with regard to number, manner and exact place where he received them. We have no hesitation in accepting the defence argument that there is a strong possibility of Nazir having manufactured the insignificant injuries- on his fingers so as to help the investigator fill in the gap qua a 'reliable' witness-that too in the brother of the deceased.
17. Even if we would have believed Nazir's assertion that he was injured in the occurrence, this would also not help the prosecution. Rafi Masih pleaded self-defence. He stated that the deceased came to his house. This, according to our findings about the motive and origin of the occurrence and alleged role of Kamma accused, cannot be held to be false or even natural version. Next, he stated that the deceased had a Dang. If the deceased wanted to avenge the insult and beating to his wife and he had also in pursuance of that urge gone to the extent of climbing the stairs into the first floor of the accused's apartment, he would have armed himself. The appellant further stated that he was throttled by pressing the Dang on his neck.. The injuries on his person support this assertion.
One injury, an abrasion was on left chin and another on the left cheek bone. Both could be caused in the process described by the appellant. Not only this, there is more strong circumstantial evidence to falsify the prosecution version. Both the deceased and the appellant had several abrasions on such parts of the body that they would be the result of grappling as visualised by the doctor. If, as Nazir stated, it was a pre-planned attack with Chhuris by two accused, just on the arrival of the deceased, there could not be those eleven 'grappling' injuries (and one is multiple) on the deceased and the appellant. In the context of the prosecution case, the injuries on the appellant remain unexplained. That is the main reason why the prosecution witnesses concealed them to the extent they could. Even the police tried to hush them up. Only a request to a learned Magistrate as a last resort was left with the appellant to get medical confirmation of what he described as attack on him by the deceased. We are of the view that the prosecution deliberately tried to conceal the role of the deceased. The appellant's plea that he acted in self-defence finds enough support from the evidence He has succeeded in discharging the burden in this behalf, as is envisaged in the case of Safdar All (1). The oblique suggestion that even if the appellant was assaulted as pleaded by him, he would not be entitled to complete right of private defence, does not need any serious consideration. If the adversary was armed with a Soti-not only this, he also used it and that too partly by pressing the neck of his victim the latter would have complete right of sel defence to the extent claimed.
18. Nazir's presence at the spot, which as already held is not prove will not make any difference ; nor the fact that he suffered minor injure on his hands would reduce the strength of the plea of defence. It is not certain where and how he got injured. If he went with his brother to avenge the insult to his women-folk and got injured at the hands of the appellant when he was defending against the attack of the deceased, it would not improve the case of the prosecution. This is not all.
Nazir P. W. Falsely implicated two innocent persons. This, as already held, reacts on the entire prosecution case. The fact that he was injured (if believed) or that the appellant bore the stamp of injuries would only show that the deceased was involved in the occurrence. Not beyond this. There are two parallel versions. One is supported by a person who falsely implicated innocent persons and the other, not only compatible with medical evidence but also corroborated by several other items of circumstantial evidence including motive. We would prefer the second one.
19. In the light of the above discussion, we have reached the finding of `not guilty'. Accordingly, this appeal is allowed. The appellant is acquitted. Sentence of death is, thus, not confirmed.