P L D 1964 (W (PLP)

BASHIRUDDIN AHMAD, J.‑

For causing the death of Muhammad Amin and Mir Afzal and injuries to Muhammad Muzaffar and Qalandar Din, three persons, namely, Muhammad Ishaq, Abdus Satar and Muhammad Ismail, were put on trial under sections 302/34 and 307/34, P. P. Code, before the learned Additional Sessions Judge, Campbellpur, who acquitted Muhammad Ismail, but convicted Muhammad Ishaq and Abdus Sattar as below: (1) Muhammad Ishaq to transportation for life under section 302, P. P. Code for the murder of Mir Afzal; and (2) Abdus Sattar to undergo rigorous imprisonment for a period of one year under section 324, P. P. Code for the injury caused to Qalandar Din. The convicts appealed (Criminal Appeal No. 139 of 1963). The private complainant put in a revision petition (No. 183 of 1963) for enhancement of sentences imposed upon Muhammad Ishaq and Abdus Sattar. The State preferred an appeal (No. 232 of 1963) against the acquittal of Muhammad Ishaq on the charge of murder of Muhammad Amin and attempted murder of Muhammad Muzaffar and Qalandar Din, and against the acquittal of Abdus Sattar on two counts under sections 302/34 and 307/34 P. P. Code (Two counts). The State also filed revision petition (No. 280 of 1963) for the enhancement of sentence of transporta tion for life inflicted on Muhammad Ishaq for the murder of Mir Afzal to death. We propose to dispose of the appeals and the revision petitions by a single judgment.

2. According to the prosecution, two days before the occurrence under consideration, Muhammad Amin deceased engaged a woman popularly known as `Surmewali' as a labourer working in his factory for preparation of snuff much against the wishes of Muhammad Ishaq appellant who was also desirous of employing her in his own factory with the result that Muhammad Ishaq and his brothers who also manufactured snuff resented it. On the 8th of August 1962 at 11 a.m., Muhammad Ishaq appellant had an altercation with Muhammad Muzaffar complainant. The shirt of Muhammad Ishaq was torn in the scuffle. On the same day the appellants along with their brother Muhammad Ismail (since acquitted) attacked Muhammad Amin in sabzi bazar at Hazro. Muhammad Ishaq had a pistol while his confederates were armed with long knives, Muhammad Ishaq fired at Muhammad Amin, but missed. Muhammad Amin took to his heels. Muhammad Muzaffar complainant and his brother Mir Afzal deceased ran to the spot. They were attacked and injured by Muhammad Ismail and Abdus Sattar with long knives. Muhammad Ishaq fired with the pistol injuring Muhammad Amin and Mir Afzal. Abdus Sattar and Muhammad Ismail inflicted injuries with knives on the victims including Muhammad Muzaffar. Qalandar Din, his brother Muhammad Hanif and Muhammad Anwar came to the spot and witnessed the occurrence. Qalandar Din who tried to intervene was also injured. Mir Afzal and Muhammad Amin died on the spot. Muhammad Muzaffar proceeded to Hazro Police Station, at a distance of half a mile from the spot, and lodged the report (Exh. P. 8.) at 7‑15 p. m. on 8th August 1962.

3. The Sub‑Inspector who recorded the first information report prepared the injury sheet of Muhammad Muzaffar. He also prepared the injury sheet relating to Qalandar Din, who had also arrived at the thana, and got them medically examined. Meanwhile Head Constable Fazal Hussain (P. W. 10) who went to the spot on hearing gun‑fire, effected recoveries of weapons of offence from Muhammad Ishaq and Abdus Sattar appellants in the presence of Makhan (P. W. 11) and Maula Bakhsh (not produced) and then sent the accused persons to the police station under the escort of F. C. Gul Zaman. The Sub‑Inspector Police prepared tile injury statements of Muhammad Ishaq and Abdus Sattar appellants and sent them to the hospital for medical examination.

4. In the meantime the Head Constable inspected the spot and recovered five empty cartridges from there. He made over the weapons of offence and the empty cartridges to the Sub‑Inspector Police. It may be stated here that the revolver together with live and empty cartridges was submitted to the Ballistics Expert, but it is not necessary to dilate on his state ment in view of the plea of self‑defence put forth by the appellant, particularly Muhammad Ishaq who admits having fired with his licensed revolver in defending himself against the attack by the complainant party.

5. The Sub‑Inspector Police who arrived at the scene of crime at 8‑50 p.m. took into possession blood‑stained earth from three different places and sealed it into parcels separately. He recovered the churn (Exh. P. 15) which lay in a drain close to the dead body of Mir Afzal deceased. He prepared the statements of injuries and the inquest reports and then despatched the dead bodies to the mortuary for post‑mortem examination.

6. Muhammad Amin (deceased) had: (1) A bullet wound of entry, " in diameter, on the front of the middle part of the chest, over the sternum bone at the level of the fourth costochondral junction, I" right of the middle line of the chest. The margins were inverted and blackened. After making a hole in the chest bone (sternum) immediately below the entry wound of the skin, the bullet pierced through and through the pericardium and the right auricle of the heart, the food pipe, and was finally lodged in the body of the 5th dorsal spine, from where it was taken out and sealed in a bottle. The entry wound in the heart, suricular cavity was J" in diameter, while its exit wound was almost of the same size. The pericardial sac was full of extra-vacated blood. (2) An incised wound, 1 " x ", on the upper lip on its right arm and was deep to the mouth cavity. (3) A skin deep contused wound, " x ", on the front of the right knee near the inner border of the knee cap. (4) An abrasion, " x ", on the inner side of the left calf. (5) An abrasion, " x ", on the front of the left leg, near the shin. (6) An abrasion, 1" x ", on the front of the upper part of the left arm, adjacent to the shoulder. Death, in the opinion of the Doctor, was due to shock and haemorrhage resulting from the injury to the heart. Injury No. 1, which was caused by a firearm, was sufficient in the ordinary course of nature to cause death. Injury No. 2 was caused by means of a sharp‑edged weapon. The rest of the injuries were the result of use of a blunt weapon. Injury No. I was fatal and the rest were simple.

7. Mir Afzal (deceased) had: (1) A bullet wound of entry, " in diameter, on the upper part of the left side of the chest, in the first intercostal space, just below the lower border of the clavicle bone, in the mammary line. Its margins were inverted and blackened. The bullet had pierced through and through all the underlying tissues under the skin. The pleural, the upper lobe of the left lung and the scapular bone had been injured. The bullet after having passed through all the above noted tissues was finally lodged on the back of the chest, under the skin, over the scapular region, from where it had been taken out and sealed in a bottle. The left pleural cavity was full of blood. The wound of entry in the lung was " in diameter, while the wound of exit in the lung was slightly bigger than the entry wound. The scapula was fractured below the exit wound of the injury. (2) A bullet wound of entry, " in diameter, on the front of the right side of the chest, in the 5th intercostal space, 1 " below the right nipple. The bullet had made an exit wound on the back of the chest, in the midst scapular line, over the 5th rib. The entry wound had inverted and blackened margin. The exit wound in the back of the chest was 1/3" in diameter and had averted margins. The pleura and the middle lobe of the right lung had been pierced through and through. The right pleural cavity was full of blood. The fifth rib of this side was fractured. (3) An oblique penetrating incised wound, " x ", on the front of the right side of the chest, in the 5th intercostal space, 1 " below the nipple, with the curving tail of 2 " x 1/10" on its upper end, going upwards beyond the nipples. It had passed through tissues from the skin to the heart, which had been cut through and through. The right ventricle of the heart had an entry wound, " x " while the exit wound in its cavity was " x ", in dimension. The pericardium was full of blood. (4) A skin deep vertical incised wound, " x 1/6" on the right side of front of the chest, on the upper part, in the first intercostal space touching the lower border of the clavicle bone with a tail of 2 " x 1/6" going downwards towards the sternum bone. (5) A skin deep incised wound, 2 " x 1/6", on the upper part of the front of the right side of the chest, starting 4 below the tail of injury No. 4 and was going up to the second costochond ral junction. (6) An abrasion, " x ", on the back of the last digit of the right little finger of the hand. Death, in the opinion of the Doctor, was due to shock and haemorrhage resulting from the injuries to both the lungs and the heart. The left lung was injured as a result of injury No. 1 and the right lung due to injury No. 2 and heart as a result of injury No.

3. Injuries Nos. 1, 2 and 3 were individually as well as collectively fatal in the ordinary course of nature. The rest of the injuries were simple. Injuries Nos. 1 and 2 were caused by a firearm while injuries Nos. 3, 4 and 5 were caused by a sharp‑pointed weapon. Injury No. 6 was caused by means of a blunt weapon.

8. Muhammad Muzaffar (Complainant) had: (1) An horizontal incised wound, 1" x ", on the right lumbar region of the back, " below the costal arch. The underlying muscles were completely cut. The injury was simple and was caused by a sharp‑edged and pointed weapon.

9. Qalandar Din (P. W.) had: (1) A bone deep vertical incised wound, 1" x ", on the left side of the forehead, going up to the upper lid of the eye with echymosis of both the lids of the eye. The injury was simple and was caused by a sharp‑edged and pointed weapon.

10. Muhammad Ishaq (accused) had: (1) An oblique incised wound, 1 " x 1/6", on the right side of the head, over the parietal region, its upper end being 1 " below the middle line. It had travelled backwards under the skin over the muscles for a distance of 1 " and making an exit wound, " x 1/6", over the occipital region. Underlying muscles in its path had been cut. (2) An almost vertical incised wound, 1 " x ", starting from the lower part of the left side of the neck and crossing the clavicle bone and was going up to the first intercostal space of the chest. It was skin deep on the path in the neck and clavicle, but was 1 " deep in the intercostal space. (3) An incised wound, " x 1/6" x ", on the lower part of the left side of the neck, its lower end being 2" above the upper end of Injury No. 2. (4) An almost vertical incised wound, 1/3" x " on the front of the left shoulder and was deep to the muscles which were cut. (5) An incised wound, " x ", on the outer side of the root of the left index finger of the hand. (6) An abrasi on, " x " on the back of the right elbow. The injuries were simple. Injuries Nos. 1 to 5 were caused by a sharp‑pointed weapon and injury No. 6 by means of a blunt weapon.

11. Abdus Sattar (accused) had: (1) A vertical incised wound, " x ", on the back of the lower part of the left side of the chest, in the 7th intercostal space, 1" outer and parallel to the middle line of the back and it was travelling inwards and forwards towards the flank under the skin for a distance of 4" over the muscles which were comp letely cut. (2) An oblique incised wound, 2" x 1/6" x scalp deep, on the right side of the head, over the parietal region. Its upper end was 2" below the middle line of the head. (3) A vertical incised wound, 1" x 1/6" deep on the bone and on the right side of the head, its lower end being 1 " above the root of the ear and was crossing injury No. 2 at its lower one‑third part. s(4) A superficial incised wound, 2 " x 1/8", on the front of the upper part of the left arm. (5) An incised wound, " x 1/3", on the back of the left hand, near the wrist and was skin deep. (6) An abrasion, 1" x ", on the front of the region knee. (7) An abrasion, " x " on the back of the right elbow. (8) An abrasion, " x " on the back of the left elbow. Injuries Nos. 1 to 5 were caused by means of a sharp‑edged weapon and the rest by a blunt weapon. They were simple in nature.

12. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They set up the plea of self‑defence which is reproduced below for the sake of convenience: "I went to the sabzi bazar to get small change. I was pro ceeding from east to west. When I was near the hotel of Muhammad Taj, Muhammad Amin deceased, Mir Afzal deceased and Muzaffar P. W. were standing there. Out of them Mir Afzal had a churri in his hand and the other two had knives. They attacked me with their weapons and started inflicting injuries on me. In the meantime my brother Abdul Sattar accused who was supervising the construction of our house and shop also came there on hearing the noise. He also was attacked by the said three persons with their weapons and was inflicted injuries. I brought out my revolver (P. 17) which I had with me at that time and fired two shots in the air without aiming at anyone. These shots did not, however, have the desired effect and the attack on us continued. I was, therefore, obliged to fire two shots at Mir Afzal in self‑defence and one shot at Muhammad Amin. When Muhammad Amin fell down, my brother Abdul Sattar caught hold of his knife and with it he inflicted some injuries to Muhammad Amin and Mir Afzal." Defence evidence was not produced.

13. The prosecution relied on the evidence of Muhammad Muzaffar (P. W. 15) and Sikandar Din (P. W. 20) in proof of the motive. In a nutshell, their evidence is that two days before the occurrence, under consideration, Muhammad Amin deceased was taking along a woman to work at his factory. Muhammad Ishaq appellant was also keen to engage her in his factory as there was dearth of labourers during those days. This led to a quarrel between them. Muhammad Amin, however, succeeded in taking the woman to his factory, but on the following day she went over to the factory of the appellants to work there. On the day of the alleged occurrence Muhammad Ishaq came across Muhammad Muzaffar in the street. There was exchange of hot words between them as a result of the. previous incident. Muhammad Muzaffar caught hold of Muhammad Ishaq by the collar and his shirt was torn during the scuffle. The testimony of Muhammad Muzaffar and Sikandar Din is of interested character. The latter is married to a sister of Muhammad Muzaffar, who admits that on the day following that on which Muhammad Amin and Muhammad Ishaq quarrelled over the employment of the woman known as `Surmewali', she did not work in their factory. It means that Muhammad Ishaq arid his brothers had succeeded in persuading the woman to work for them.

14. Turning to the incident which took place on the day of the alleged occurrence at 11 a.m., we find that the counter -version given by Muhammad Ishaq that he caught hold of Muhammad Muzaffar by the beard, when the latter had an altercation with him in which his shirt was torn, was believed by the learned trial Judge. Muhammad Muzaffar must, be taken to have considered it as a very great insult. The Additional Sessions Judge, therefore, came to the conclusion that the complainants and not the accused were the aggrieved party. Probably that was the reason why Muhammad Ishaq and his brothers had approached Qalandar Din to bring about a reconciliation between the parties. Qalandar Din is a first cousin of Muhammad Muzaffar and is also married to his sister. He clearly said in his statement before the committing Magistrate that Abdus Sattar approached him with the request that he should intercede on behalf of his brother Muhammad Ishaq so that he be forgiven for the wrong which he had done to Muhammad Muzaffar complainant. It is in evidence that Mir Afzal and Muhammad Amin did not readily agree to the proposal for a compromise and insisted on reporting the matter to the police about the previous incident, but eventually they agreed to drop the matter. We, therefore, do not consider it safe to rely on the evidence of Muhammad Muzaffar and Sikandar Din in proof of the story of the motive because we find that Sikandar Din is married to a sister of Muhammad Muzaffar and being an interested witness it appears, he came forward to support Muhammad Muzaffar. The finding that Muhammad Muzaffar was the aggrieved party seems to us to be correct and we see no reason to direr from the conclusion arrived at by the learned trial Judge on thin point.

15. Coming to the actual occurrence, we find that the story of an attack on the deceased persons is supported by Muhammad Muzaffar, Qalandar Din, Muhammad Hanif and Muhammad Anwar. They are not only related inter se, but are also related to the deceased persons as well. Muhammad Muzaffar is a real brother of the deceased persons in this case. Qalandar Din and Muhammad Hanif are his first cousins. They are married to the sisters of Mir Afzal deceased. Muhammad Muzaffar states that on the evening of the fateful day, his brother Muhammad Amin took some money from Mir Afzal and left the shop to go to Bhangi which is a suburb of Hazro. Muhammad Muzaffar went to his godown leaving behind Mir Afzal at the shop. Muhammad Muzaffar says that he heard the report of gun‑fire while at the godown. He came out of the godown. Mir Afzal came out of his shop. They ran in the direction of the chowk which is towards the south of their shop. When they reached the chowk, they saw Muhammad Amin running, towards the western side in the bazar. He was being chased by Muhammad Ishaq and Abdus Sattar. Muhammad Ishaq had a pistol, while Abdus Sattar was holding a long knife. When Muhammad Amin reached in front of the shop of Muzaffar Khan, he looked back, and Muhammad Ishaq fired at him with the result that Muhammad Amin was mortally wounded and fell to the ground. He was dragged from under a wooden plank in front of the shop of Muzaffar Khan by Abdus Sattar who inflicted an injury with the churri on the face of Muhammad Amin. Muhammad Ishaq fired a shot at Mir Afzal but missed. When he was about to fire another shot at Mir Afzal, he was held from behind by Muhammad Muzaffar, but Muhammad Ismail (since acquitted) stabbed Muhammad Muzaffar in the back and Muhammad Ishaq succeeded in getting himself released. Mir Afzal, who had a churri, gave churri blows to Abdus Sattar who also retaliated. The story goes that Muhammad Ishaq then fired a shot at Mir Afzal who fell down. He fired another shot at Mir Afzal after he had fallen. Abdus Sattar is alleged to have inflicted a churn blow on Mir Afzal. Qalandar Din (P. W. 16) came up and entreated the assailant not to inflict any more injuries on Mir Afzal, because he had already died. Abdus Sattar then gave a churri blow to Qalander Din. The appellants then went away towards the house of their sister's husband Yusuf.

16. It has to be borne in mind that Muhammad Muzaffar also implicated Muhammad Ismail, when he stated that Muhammad Ismail gave him a blow with a churri. Qalandar Din stated that Abdus Sattar inflicted a knife injury at the back of Muhammad Muzaffar with the result that Muhammad Ishad got himself released. Qalandar Din admitted that he did not state to the police that Muhammad Ismail was also present at the place of the occurrence with a churri in his hand, because it considered him to be innocent. Muhammad Hanif also made similar admission. Muhammad Anwar did not make any mention of Muhammad Ismail at the time of the occurrence. The learned Additional Sessions Judge, therefore, found that there was attempt at false implication of Muhammad Ismail by Muhammad Muzaffar in this case. The conclusion seems to be perfectly in order. The evidence of the eye‑witnesses has, therefore, to be carefully scrutinised and accepted with caution.

17. We note that each one of the appellants had five incised injuries. Muhammad Muzaffar states that his brother Mir Afzal had a churri in his hand and he had seen Mir Afzal and Abdus Sattar giving injuries to each other mad Muzaffar said further in his statement that Mir Afzal inflicted two or four injuries on Muhammad Ishaq and the same number on Abdus Sattar appellant. Continuing the witness stated that Muhammad Amin was empty handed and he did not inflict any injury on the appellants. Muhammad Muzaffar stated to the police that Mir Afzal and Muhammad Amin had also injuries on Muhammad Ishaq and Abdus Sattar with It means that the deceased persons caused injuries to the appellants with long knives before they themselves were injured. Qalandar Din, his brother Muhammad Hanif and Muhammad Anwar gave the same account of the occurrence. The learned Additional Sessions Judge considered the evidence of Qalandar Din and his brother at length and summed up his conclusions as below: "A study of the plan shows that the south‑west corner of the hotel of Muhammad Yousaf where according to Muhammad Hanif the deceased Muhammad Amin had reached when he was fired upon is very close to the shop of the deceased and his brother. The accused were then standing in the crossing near the shop of Daud barber which means that the distance between them and Muhammad Amin was about 20 or 25 feet. The safes: Bourse for Muhammad Am(ct to save himself from the attack of these two accused was to run back to his shop Instead of running in the bazar towards the western side. He could have concealed himself in any of these shops in the bazar instead of running away. It is in the F. I. R. that Muhammad Amin deceased was present in the Sabzi Chowk when he was attacked by the accused. There is absolutely no mention in this document of Muhammad Amin having been earlier fired upon by Muhammad Ishaq and his having run through the sabzi bazar to save himself and his being chased by the two accused Abdul Sattar and Muhammad Ishaq. I have it from Muhammad Anwar (P. W. 18) that the Sabzi Chowk is that part of the sabzi bazar which in the plan (Exh. P. R.) is shown at the extreme western end. Obviously the F. I. R. does not read well with the version of the two brothers Qalandar Din and Muhammad Hanif (P. Ws. 16 and 17). I do not agree with them that the incident happened in the manner stated by them." We have gone through the statements of these witnesses with the assistance of Mr. Saleem, learned counsel for the appellants, and find that the conclusions arrived at by the learned trial Judge are correct. We are, therefore, inclined to hold that the evidence of these witnesses is not worthy of credence.

18. The occurrence took place in a crowded bazar, but the prosecution were not able to produce a single disinterested witness in support of their case which is significant. Commenting on this aspect of the case, the learned trial Judge observed: "It may be repeated here that the sabzi bazar is the busiest part of Hazro town, that all the shops were open at that time and the bazar was over‑crowded with customers and passersby. No disinterested witness has come forward to state that Muhammad Amin was actually chased by the two accused and was fired upon when he had turned round on hearing the voice of his brother Mir Afzal from behind."

19. The learned Additional Sessions Judge doubted the presence of Muhammad Anwar P. W. on the spot at the time of the occurrence. He carefully reviewed the evidence and observed as under "The position, therefore, is that the present version of the witnesses is incorrect on quite a number of particulars and is a great improvement on the original version and cannot possibly be believed." We see no reason to differ from this conclusion of the learned Additional Sessions Judge as regards the ocular testimony.

20. The learned Additional Advocate‑General contended that the occurrence having been admitted, it was for the appel lants to prove that they acted in exercise of the right of self‑defence. On a consideration of the defence plea, the learned trial Judge was of the view that the version given by the accused was more probable and the attendant circum stances also supported it. He conceded that the right of self‑defence accrued to the accused and held that the killing of Muhammad Amin by Muhammad Ishaq appellant was justified under the law as he had been attacked with knives and he had reasonable apprehension that death or grievous hurt might be caused to him. In regard to the incised injury which Muhammad Amin deceased sustained on his upper lip at the hands of Abdus Sattar, the trial Judge was of the view that Abdus Sattar caused the injury to the victim when Muhammad Amin and Mir Afzal had attacked Muhammad Ishaq with long knives. In the result, the learned Additional Sessions Judge completely exonerated the appellants for the killing of Muhammad Amin and also for inflicting a knife injury on him. We agree with the learned trial Judge that the killing of Muhammad Amin was justified in exercise of the right of self‑defence which accrued to the appellants.

21. While we agree with the trial Judge that the right of private defence accrued to the appellants and the killing of Muhammad Amin was justified, we do not agree with the reason ing given by him for adding Muhammad Ishaq guilty of the murder of Mir Afzal and convicting Abdus Sattar for the injury which he caused to Qalandar Din. The reasons given by the learned Additional Sessions Judge for holding them guilty and convicting the former for the murder of Mir Afzal and the latter under section 324, P. P. (ode for causing simple hurt with sharp- edged weapon to Qalandar Din are as follows:- "Since it is possible teat Abdus Sattar might have inflicted injury No. 3 on Mir AW while they were fighting against each other. Abdus Sattar cannot be held responsible in law for the murder of Mir Afzal bemuse he can well be taken to have acted in exercise of the [fight of private defence of his person. I also agree that it is possible that when Muhammad Ishaq fired the first shot at Mir Afzal he was not aware that Mir Afzal had already begin fatally injured. In firing the first shot at Mir Afzal, Muhammad Ishaq was, therefore, acting in good faith in exercise if the right of private defence of the person of his brother Abdus Sattar and was justified in doing so. After having fired he first shot Muhammad Ishaq should have known that he has completely incapacitated Mir Afzal. The shot was fired from a very close range and on a very vital part of Mir AW which was bound to end the life of Mir Afzal. The second shot fired by Muhammad Ishaq cannot possibly be taken to have been fired in exercise of the right of private defence of the person of his brother Abdus Sattar."

22. The finding that the second shot fired by Muhammad Ishaq was not in exercise of the right of self‑defence is certainly erroneous. The reason for it is two‑fold: First, the trial Judge having practically disbelieved the entire ocular evidence based his finding on what he considered to have happened, and secondly, having conceded that the appellants acted in exercise of the right of self‑defence, it was certainly erroneous to have come to the conclusion that Muhammad Ishaq by firing the second shot at Mir Afzal committed the offence of murder. We do not propose to reproduce section 99, P. P, Code in the judgment but consider it necessary to refer to the Provisions of section 102, P. P. Code which runs: "

102. The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as along as such apprehension of danger to the body continues."

23. The reasoning given by the learned Additional Sessions Judge in holding Muhammad Ishaq guilty for firing the second shot is that which a cool by‑stander might take in the circum stances of the case. The learned trial Judge completely lost sight of the fact that Muhammad Ishaq must have acted under a great excitement as he was not only in fear of his own life, but also defended his brother Abdus Sattar against an attack in which he could reasonably apprehend grievous hurt if not death to him or to his brother. The appellants had been assaulted by the deceased persons and possibly Muhammad Muzaffar P. W. was also with them. The preponderance of probability in this case is that the appellants resorted to violence when attacked by the deceased persons and possibly also by Muhammad Muzaffar who were armed with long knives and after they had inflicted a number of injuries on each one of the appellants they defended themselves against the attack. In no circumstances the occurrence could be described as a "sudden or free fight" This was not the case of the prosecution at any stage. The circums tances appearing in support of the plea put forth on behalf of the appellants tend to show that it was a one‑sided attack by the deceased persons on the appellants and their brother. It is true that the right of private defence in no case extends to the inflict ing of more harm than is necessary to inflict for the purpose of defence, but we cannot ignore the fact that in the heat of the moment and while defending himself against an attack it was not A possible for Muhammad Ishaq appellant in that situation to have decided on the spur of the moment whether he should fire one or more shots in order to defend himself effectively. We do not agree with the learned Additional Sessions Judge that Muhammad Ishaq appellant exceeded the right of self‑defence when hp fired the second shot.

24. We do not agree with the learned Additional Advocate -General that it was for the appellants to have proved affirma tively the plea of self‑defence put forth by them. We are familiar with the provisions of section 105 of the Evidence Act which reads as under: "

105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence,, is upon him, and the Court shall presume the absence of such circumstances." The effect of this provision of law was considered by the Federal Court in Safdar Ali v. Crown (P L D 1953 F C 93) and the principle enunciated therein was reiterated in Shamir alias Shamla v. The State (P L D 1958 S C (Pak.) 242) in which their Lordships held that: "Despite the fact that no evidence had been led by the accused to prove the plea of self‑defence, yet, if the plea received report to the extent of being reasonably possible, from the circumstances proved by the prosecution evidence, the accused was entitled to acquittal."

25. On a careful consideration of the facts and circumstances we are of the view that the appellants are not proved to be guilt; of any offence. We, therefore, accept the appeal (No. 139 04 1963), set aside the convictions and sentences passed on Muhammad Ishaq and Abdus Sattar and proceed to acquit them. The appellants are in jail and we direct that they be set at liberty forthwith provided always that their detention is not necessary in connection with any other matter. The State Appeal (No. 232 of 1963) as well as the revision petitions (Nos. 183 and 280 of 1963) fail ipso facto and are dismissed. K. B. A. Appeal accepted.