P L D 1959 (W (PLP)

HABIBULLAH KHAN, J.7‑This is an appeal by one Abdul Rahman of village Parang against the order of Mian Shakirullah Jan Additional Sessions Judge, Peshawar, whereby he has been convicted of an offence under section 302, P. P. C. for the murder of his co‑villager Misri Khan and sentenced to transportation for life. A revision petition has also been presented for the enhance ment of the punishment. Misri Khan deceased, Abdur Rahman appellant and some other persons were present in the village hujra at khuftan time when the appellant stealthily removed the handkerchief of the deceased from his pocket. Muhammad Sarwar (P. W. 6) noticed the theft and informed the deceased. The appellant resented the conduct of Muhammad Sarwar and started beating him. The deceased sided with Muhammad Sarwar and picked up a quarrel with the appellant. They exchanged abuses and also grappled. The villagers present there, however, intervened and separated them. This minor quarrel was the origin of the fight that took place between the parties on the following day at digar time in the village and resulted in the death of the deceased. Otherwise there was no previous enmity between them. The deceased with a bundle of maize stalks on his head was returning home from his field at digar time, when the appellant met him by chance near the house of Shahzada Municipal Commissioner (P. W. 7). According to the prosecu tion version, the appellant gave knife blows to the deceased, as a result of which he was injured. Persons present there tried to capture the appellant, but he fled away. Informa tion was conveyed to Khan Muhammad (P. W. 4) brother of the deceased and when he arrived at the spot, he found his brother lying dead. He went to the police station and lodged a report. The appellant admitted the fight in the trial Court and stated that he was going to his field when the deceased who was bringing a bundle of maize stalks met him in the way. The deceased threw away the bundle and demanded from him his handkerchief. On his (appellant's) denial of the theft the deceased delivered him knife blows, as a result of which he was injured. He (the appellant) stabbed the deceased in self‑defence. The post‑mortem examination on the dead body of the deceased revealed two stab wounds, one 2 " x " penetrating into the chest cavity on the front and left, side in the third internal costal space just above the nipple, and another 1 x " on the outer surface of the upper left arm near the shoulder. The left pleura, left lung, heart and paricardium were injured. On examination the appellant was found to have sustained an incised wound 2" x " muscle deep on the right knee lateral surface and a stab wound " x " penetrating into the chest cavity on the front of the right side chest in the 7th inter‑costal space in the anterior axillary line. The injuries were fresh and caused with a sharp‑edged pointed weapon. The main question falling for decision is as to when and by whom was the appellant injured. The two eye‑witnesses Abdul Qadir (P. W. 5) and Muhammad Sarwar (P. W. 6) denied that the appellant was wounded by the deceased during the fight, but another witness Shahzada (P. W 7) admits that when he reaches the spot on hearing the noise, he found the deceased lying wounded and the appellant present there with his clothes besmeared with blood. When the appellant went to the police station; the same day to lodge his report, he was found wounded and his shirt, shalwar and banyan, all stained with blood, were taken into possession by the police officer. Abdul Qadir and Muhammad Sarwar P. Ws. have a reason not to admit that the appellant sustained his injuries during the fight, because one of them is a servant and the other a tenant of one Nisar Muhammad Khan; the mater of the deceased. The appellant has no other connection with Nisar Muhammad Khan except that he was his house tenant. But Shahzada P. W., who is apparently a dis interested witness, has admitted, as already pointed out, that he saw the clothes of the appellant stained with blood, though he coup not see his wounds. The suggestion by the learned Assistant Advocate‑General that the appellant himself might have inflicted the wounds on his own body with a view to creating evidence. in support of his plea of self‑defence is not acceptable to us. When it was pointed out to him that Shahzada P. W. say` the clothes of the, appellant blood‑stained at the spot on his arrival and, therefore, the presumption would be that he has been already wounded in the fight, the learned Assistant Advocate‑General tried to expLaln away the circumstance by suggesting, that the clothes of the appellant might have got stained with the blood of the deceased with whom he had‑grappled. There are two important circumstances in the evidence which negative the suggestion. When we examined the clothes of the appellant in Court, we found them sufficiently soaked in blood which exactly corresponded to the sites of the appellant's injuries. The banyan was more blood‑stained than the shirt, evidently because the blood reached the shirt after oozing through the banyan, which must have been directly in contact with the wound. This could not have happened, if the clothes of the appellant had been stained with the blood of the deceased, because in that case there should have been more blood on the shirt of the appellant than on his banyan, which was under it. Further the prosecution has failed to account for the blood on the shalwar of the appellant opposite to the wound on his knee, because it will be recalled that the deceased was injured on his chest and on the upper portion of his arm near his shoulder, and, therefore, his blood could not stain the middle portion of the appellant's shalwar. The contention of the learned Assistant Advocate‑General loses all its force, when we examine the evidence of Abdul Qadir P. W. in the trial Court along with that portion of his statement made to police with which he has been duly confronted in this Court, and which he has admitted to be correct. In these statements he admits that when the deceased and the appellant came near each other, the deceased threw his bundle of maize stalks and then the two grappled with each other and virtually engaged in a wrestling‑boat. Before that he had not seen any weapon in the hand of the appellant. It was after the grappling that the appellant took out his knife and stabbed the deceased who fell down. The statement makes two things clear, namely, (1) that grappling preceded the assault and that after the deceased was stabbed and wounded there was no further grappling, and as such the clothes of the appellant could not have been stained with the blood of the deceased, and (2) that the appellant did not straightway attack the deceased with his knife as alleged by Muhammad Sarwar in the trial Court. Had the appellant ambushed the deceased with an intention to kill him, he would have used his knife in the first instance, without allowing himself to be involved in grappling with the deceased. On the other hand the circumstances noted above strongly suggest that it was the deceased, who on meeting the appellant in the way started the fight for the obvious reason that the appellant was refusing to return to him his stolen handkerchief. Since certain points in the doctor's evidence required clari fication, we examined him. It is clear from his further evidence that it was impossible for the deceased to cause injuries to the appellant after he (the deceased) was injured. This statement of the doctor leaves no room for doubt that the appellant was injured before the deceased was stabbed. When an accused person is found to have been injured in a fight with the deceased, and witnesses cLalming to have seen the occurrence try to suppress this fact, it will be reasonable to presume in the absence of any plausible explanation to the contrary, that the accused person was inured by the deceased and further when it is doubtful as to which of them attacked the other first, the benefit of doubt will go l to the accused person. In the present case we find that the appellant was injured in the fight with the deceased. The two eye‑witnesses not only denied this fact but have also failed to offer any reasonable explanation for his injuries. In the light of the circumstances pointed out above it is difficult to resist the conclusion that it was the deceased, who injured the appellant and that evidently he was the first to initiate the attack. The learned) Sessions Judge also seems to have substantially reached the same conclusion, when in the concluding portion of his judgment he observed :‑ "The throwing of the bundle of maize stalks from his head on the spot clearly shows that it was the deceased who picked up the quarrel With the accused by grappling with him on account of the previous night incident, and so under these circumstances it was the deceased who had set the ball rolling. The evidence on the record has not satisfied me, that the accused had taken a position by the corner of the house of P. W. Shahzada, and it appears that the accused and the deceased met by chance on the spot, and the deceased picked up the quarrel with the accused, and so the accused was not present on the spot with a view to commit the murder of the deceased." That being the case, the appellant is clearly entitled to the right of self‑defence. Consequently we accept the appeal; set aside the conviction and sentence and acquit the appellant. He should be set free at once. The revision petition fails automatically and the same is, therefore, dismissed. A. H. Appeal accepted.