1990 P Cr (PLP)

The injuries were simple in nature and appeared to have been caused with blunt weapon. He has produced the medical certificate and supplementary certificate as Exh.46 and Exh.67. (1) Contusion 2" x 1" on the back of right forearm movement of elbow joint restricted. (2) Incised wound 1/2" x 1/4" x skin deep on the front of left elbow/in direction. (3) Lacerated wound 1/2" x 1/4" on the front of left index finger with swelling positive and restriction of movement. (4) Two abrasions each 2" x 1/2" on the left deltoid region. (5) Abraded contusion 1" x 1" on the right wrist. (6) Lacerated wound 1/2" x 1/4" on the tip of right thumb. (7) Lacerated wound 1/2" x 1/4" on the back of right index finger. (8) Abrasion 1/2" x 1/2" on the front of right knee The injuries were fresh. Injury No.2 was caused by sharp‑edged cutting weapon such as knife, blade or any other substance and rest appeared to have been caused by hard blunt weapon. He has produced medical certificate and supplementary certificate as Exh.48 and Exh.49. In cross‑examination he has stated that he has not mentioned in the column that the injuries on the person of injured could be self‑inflicted or by hand. He has admitted that he has not mentioned in his certificate that the said injuries could be caused by fall of stones. Complainant Noor Muhammad P.W.1 has supported the contents of his F.I.R. He has produced the entry No.73 dated 9‑8‑1983, from the station diary as Exh.13 regarding non‑cognisable report lodged by him regarding earlier incident. He has also produced his statement, which was recorded under section 154, Cr.P.C. as Exh.14. According to him, he was in the hospital for about 1/2 month and thereafter he was discharged. In cross‑examination he has deposed that he had not mentioned the name of owner of the hotel from where he was going to purchase milk in his statement. The door of his house and that of the house of accused,, open in the same street. His house is separated,, by eight houses and one street from the house of the accused. He was going to purchase milk from Muhammad Sharif Mullah. He has denied that there is no hotel of Muhammad Sharif Mullah in the area. That hotel is situated in `H' area. There is one `Bara' (cattle pen) on the backside of house. The milk is available in that `Bara'. His deceased uncle used to permanently reside in Sherabad, Landhi Colony, `K' Area, Karachi. Police had recorded only his one statement i.e. Exh.l

4. He had not made any further statement before the police. Direct way to hotel of Muhammad Sharif Mullah was short which was adopted by him. There was other indirect way also leading to his hotel. He has denied that the hotel of Muhammad Sharif Mullah is not near the house of the accused. He has admitted that the way to the `Bara' behind his house is shorter than the way to hotel of Muhammad Sharif Mullah near Quarter No.403, but shop of Shahzad is not there. He has admitted that the upper storey of Quarter No. 403 was not yet completely constructed it was under construction. He had stated in Exh.13 that accused started beating him and that they passed circastic remarks that they had supplied medicine to his father who had apologised from one Azad even after sustaining injuries at his hands. It is correct that he had stated in the F.I.R. that he had sustain to injuries on his chest with knife and on left arm with Saria. He had stated in F.I.R. that Shakil and Najmuddin were armed with Saria and they gave him Saria blows (There is a note from the Court confronted not so recorded). He had stated in the F.I.R. that Najmuddin gave Saria blows to his maternal‑uncle (confronted not so recorded). He had stated in the F.I.R. that while he was saving his maternal‑uncle Muhammad Shari accused Rais gave second blow with dagger on his neck (confronted not so recorded). He had stated in the F.I.R. that when his maternal‑uncle Muhammad Rafi tried to intervene all accused had beaten him. (There is note confronted not so recorded). Many persons including the complainant appeared at the spot one after the other. Houses Nos.413, 414, 415, 416, 417 to 420 are close to each other in one row. P.W. Ghulam Nabi resides in Quarter No.

417. Excepting Ghulam Nabi none of the witness resides in this row. P.Ws. Muhammad Ayub, Yasin and Yaqoob are real brothers. Yasin is son‑in‑law of his maternal‑uncle Rafique. Abdul Aziz is son‑in‑law of deceased Muhammad Rafique. P.W. Fateh Muhammad is his brother. Yasin resides two furlongs away from the place of incident. All the three brothers are residing with their father in the same house. He has denied a suggestion that none of the accused had beaten him and caused injuries to deceased Muhammad Rafique and deceased Muhammad Shari. He has denied that on the day of incident he alongwith P.Ws. Muhammad Ayub, Muhammad Yasin, Muhammad Yaqoob, Din Muhammad, Fateh Muhammad, Ghulam Nabi, Abdul Aziz, Shabir Ahmed, Muhammad Rafique, Muhammad Ismail, and Salimuddin armed with Chhuris and sticks entered the house of accused Raisuddin, Javed and Najmuddin and caused them injuries in their house. He has denied that in the above attack, persons on both sides received injuries. He has denied that he had invited all his relatives and people of community and attacked the accused in their house. He has denied that A.S.I. Adalat is his friend. Muhammad Ismail; .W.2, Ghulam Nabi P.W.3, Muhammad Wasim P.W.4, Muhammad Yaqoob P.W.5 and Abdul Aziz P.W.10 have supported the version, as given by complainant Noor Muhammad, except the role played by respondent Shakeeluddin. The medical evidence shows that complainant Noor Muhammad, Muhammad Rafique and Muhammad Shafi had received injuries in the incident, and Muhammad Shafi died as a result of injuries. The evidence of Muhammad Wasim P.W.4, further shows that after the incident the injured were removed to the hospital. After some time he came to know that Muhammad Shat died. On the same day at about 2‑f10 p.m. he was sitting in the hotel when police party came and arrested all the four accused persons and took their personal search but nothing was secured from them. The police prepared such Mashirnama in his presence and obtained his signatures. The Mashirnama has been produced as Exh.l7‑A. Thereafter all the accused persons were taken to the police station and after short while accused Raeesuddin and Najamuddin were brought to their house. He was called by police to act as Mashir. Accused Raeesuddin and Najmuddin led the police party inside their house where Raeesuddin took out blood‑stained dagger from the lower part of the almirah which was secured by the police. Then accused Najmuddin took out an iron rod from the back of the almirah. Police prepared such Mashirnama and obtained his signatures and the same has been produced as Exhs.17‑B and 17‑C. respectively. Thereafter police brought accused Javed to his house after about five minutes and led the police in his house and produced blood‑stained Chhuri from the back of the almirah which was secured by police and such Mashirnama was prepared in his presence which has already been produced as Exh.17‑C. The dagger, Chhuri and iron rod has been produced as articles `A', `B' and `C'. In cross‑examination, he has deposed that article `A' which shows that it was secured from the possession of accused Javed. This article `A' was not sealed by the police :in his presence. He could not give the length of Article B' which shows to have been recovered from accused Raeesuddin. As far as Article `A' was concerned, its blade was about one foot. He is not employee anywhere from very beginning. His father is driver on a private car, at present he is out of job. He does not possess National Identity Card as the same has been lost 4/5 months back. He has not lodged any report about the same. He has denied that he is not Wasim. The police took the accused after their arrest in a Suzuki of police. He was sitting at a hotel at that time. There were 4/5 other persons present in the hotel. He did not know as to how many rooms were there in the house of the accused. He has denied a suggestion that Exhs.17‑A, 17‑B and 17‑C do not bear his signatures. At the time of arrest of all the accused persons neither they had any injury on their person nor their clothes were blood‑stained. The incriminating articles were lying in between the wall and almirah. He had stated before the police that the accused persons had produced blood‑stained dagger from the lower drawer of the almirah. He has denied a suggestion that his father is working as driver with the complainant, Noor Muhammad and that he was giving false evidence, after taking money from the complainant Noor Muhammad. Deceased Muhammad Shat was not the permanent resident of the locality where the incident took place. P.W. Adalat Khan A.S.I. was posted at Police Station Orangi, Karachi on 9th August, 1983. According to him, he received a telephonic message from J.P.M.C. on that day at 7‑30 a.m. that one of the injured namely Muhammad Shafi has died in the hospital and there was also another injured who has been admitted in the hospital and therefore, some police officials be sent to the hospital. He recorded message in the station diary maintained at police station and copy of the same‑has been produced by him as Exh.25. On receipt of above information, he immediately proceeded to J.P.M.C. gave letter to the Medico legal Officer for permission to record statement of injured Noor Muhammad which was allowed and the letter with endorsement has been produced as Exh.26. He then recorded the statement of injured Noor Muhammad verbatim Exh.14 was the same After recording the statement he sent the same to police station through Khizer Hayat for incorporating in 154, Cr.P.C. book. Thereafter S.H.O. Muhammad Ashraf came to the hospital and he conducted further investigation of the case. S.H.O. Ch. Muhammad Ashraf P.W.14, who had carried on investigation of both the cases and his evidence has been mentioned in the earlier part of this judgment. In cross‑examination he has admitted that a counter‑case in F.I.R. No. 403 of 1984 was registered on the complaint of accused Raecsuddin against Noor Muhammad and others, he has produced photostat copy of F.I.R. as Exh.53 and charge‑sheet as Exh.54. 1n this F.I.R. accused Raeesuddin has stated that the incident took place inside his house. The place of incident in that F.I.R. was pointed out by Raeesuddin and it was confirmed by his witness. From the evidence and the statements of witnesses, produced by accused Raeesuddin it was proved that the place of incident in his case was inside the house. The place of incident in F.I.R. No. 395 of 1983 lodged by complainant Noor Muhammad has been shown in front of Quarter No. H‑

403. The medical certificates in respect of injuries on the person of accused Najmuddin and Jawaid were received from medical officer after submission of charge‑sheet in F.I.R. 395 of 1983. He came to know about nature of injuries on the persons of injured Raeesuddin, Najmuddin and Jawaid and for the first time when he registered their F.I.R. against Noor Muhammad and others. He has admitted that whenever they referred any injured to the hospital for examination and treatment, they mentioned the injuries on the person of the injured person. He has also admitted that he inspected the injuries on the person of the injured, when he came to the police station for report. 1t was not necessary to obtain the medical certificate in respect of the injuries on the person of the accused before submission of challan against them in Crime No. 395 of 1983. He had received the medico‑legal numbers of medical certificates in respect of three injured/accused persons namely Jawaid, Raeesuddin and Najmuddin on the same day on which he had sent them to J.P.M.C. for examination and treatment, but he did not receive formal medical certificates till 20‑8‑1983. He could not say when medical certificate bearing No. 4437, 4438 and 4439 were received. He had mentioned the description of injuries on the persons of accused Jawaid, Raeesuddin and Najmuddin in the station diary kept at the police station when he sent them to J.P.M.C. for examination and treatment. Again stated, after going through the police papers that the details and description of the injuries of the above‑mentioned accused were not mentioned anywhere in the station diary. He did not remember if the above three certificates were received from Police Surgeon, Karachi at police station on 10th August, 1983. He could not say if any application was moved' by the mother of the accused that robbery of money and ornaments was committed from their house and her sons were injured nor he could say if such application was available on the record, of counter‑case No.846 of 1985. He has admitted that in charge‑sheet No. 473 of 1984, in case filed by Raeesuddin he did not cite Jawaid Farooqui as a witness. He also did not cite womenfolk as witnesses in that case lodged by accused. He did not arrest any of the accused in F.I.R. No. 403 of 1984 lodged by accused persons and all ten accused got bail before arrest on 29‑9‑1984. He has admitted that he has received medical certificates of Raeesuddin and others on 25‑1‑1984, which was sent to him by higher authority alongwith application moved by the mother of accused Jawaid after due inquiry he submitted report to the higher authority. He has admitted that he did not record statement of any witness by name of Waseem son of Muhammad Naeem. Voluntarily says, that in this respect the father's name of Waseem was written as Mustaqueem instead of Naeem, which was lately corrected. He has admitted that he did not make correction in the calendar of witnesses cited by him in the challan i.e. the name of Muhammad Wasim son of Muhammad Naeem. He has not mentioned in Exh.52 as to when the articles were sent to the chemical examiner. P.W. Muhammad Ayub, Muhammad Yasin, and Muhammad Yaqoob are real brothers and they are related to the complainant as well as the deceased. Deceased Muhammad ShaC was permanent resident of Landhi Colony, Karachi. He did not record statements of the persons residing in Quarters Nos. 401 to 420 except of P.W. Muhammad Waseem. He did not examine anybody from the hotel. He has denied that the accused had gone to him for lodging report but he refused to record the same. After the arrest of the accused persons, he did not take them to the police station before recovery of articles mentioned in Exh.l7‑B and Exh.17‑C. He has denied a suggestion that the crime‑weapons were not recovered from the accused and the same were foisted on them. He has admitted that accused Shakil was posted as Wireless Operator at Police Station Korangi at the time of incident. He did not record the statement of Superior Officers from Head Office where accused Shakil was working. He has produced the chemical report as Exh.52. After close of the prosecution case, the statements of accused were recorded in which they have denied the allegations. They have also examined themselves on oath as envisaged by section 340(2), Cr.P.C. The accused also examined Mr. Muhammad Shahzad Hussain, Advocate, Bahawalpur as D.W.1, who has deposed that he is a practising Advocate at Bahawalpur. He is also Vice President of District Bar Association, Bahawalpur. He knows accused Shakil as his wife Mst. Maqsood Jehan had sold a plot bearing No.R.25, situated in Quetta Town, Karachi for a sum of Rs.20,000 on 9‑8‑1983 to Shakil. He has produced the photostat copy of agreement as Exh.62. It was signed by him as well as by his wife as a seller. He knows Sajjad Hussain, Clerk of Mr. Bchram Khan, Advocate, Bahawalpur who has also signed the agreement as witness. Petition‑writer Ajmal had written the agreement. It was about 9‑00 a.m. on 9‑8‑1983. It was executed at Bahawalpur in his presence. He has produced the photostat copy of receipt of Rs.20,000 regarding payment by Shakil Farooqui to his wife on 9‑8‑1983 at Bahawalpur towards consideration as Exh.62. This receipt bears signatures of his wife and witness Sajjad Hussain. It was written by Ajmal Hussain and bears his signature also. He has also produced the photostat copy of allotment order as well as original allotment order as Exh.64 and Exh.65. Photostat copy of the same was given to the purchaser Shakiluddin at the time of execution as Exh.62. So also photostat copy of the plan. He has produced original plan as Exh.65. The entire transaction was completed at Bahawalpur in his presence on 9‑8‑1983. This agreement was not completed as accused Shakiluddin could not pay the balance of Rs.18,000 within the period specified in the agreement. The transaction could not be finalised as accused Shakiluddin stated that he was involved in a murder case and, therefore, is not in a position to pay money. In cross‑examination he has stated that he has not paid the first payment himself. He has admitted that Rs.1,200 was paid by him on 6‑5‑1985. He has produced the original receipt of payment of Rs.1,277 to Quetta Town Co‑operative Housing Society, Karachi as Exh.66. Accused Shakil had gone to him in the last week of August, 1983. This agreement was later on cancelled but he has no written documents to this effect. The transaction was made at Karachi through his maternal‑nephew through some broker and the accused came to him at Bahawalpur after taking his address. There was no mention of any broker in the agreement. He had purchased the stamp paper on behalf of his wife at Bahawalpur. The stamp vendor is still alive. His wife, the petition‑writer and the clerk are also alive. He knew accused Shakiluddin who had gone to him 2‑1/2/3 months prior to execution of the agreement. He is not in possession of the lease document in respect of the property of which this agreement was executed. He has denied that Exh.62 is fictitious document and has been prepared to save accused Shakiluddin. In re examination, he has deposed that his father‑in‑law Khan Bahadur Habib‑ur Rahman had made first payment of this allotment. Sub‑Inspector Ghulam Jillani, D.W.5 deposed that he knows accused Shakiluddin as he is working in Police Communication Department as H.C. He has brought in Court the Register kept by the Department for maintaining leave. Accused Shakiluddin applied for earned leave for two months, which was granted w.e.f. 8‑8‑1983 to 7‑10‑1983 and he was relieved from duty on 8‑8‑1983 afternoon. He has produced photostat copy of Exh.71 and Exh.72. Accused Shakiluddin deposited kit at Korangi Police Station he had availed two months' leave. In cross‑examination he has deposed that he has brought the application for leave, which was made by accused Shakiluddin and the same has been produced as Exh.74. The leave was granted to Shakiluddin on the ground of marriage of his younger brother and repairs of house. The departure of accused was made on 8‑8‑1983 at about 16‑05 hrs. He did not know as to where Shakiluddin had gone after leaving the office. Ajmal Hussain Petition‑writer D.W.9 and Sajjad Hussain Clerk of Mr. Behram Khan, Advocate, Bahawalpur D.W.10 have fully supported the case of accused Shakiluddin regarding execution of agreement Exh.62 by Mst. Maqsood Jehan Begum. The accused have also examined Muhammad Ismail D.W.4, Abdul Qayyum DW.7 in their support regarding incident. The learned trial Judge after taking into consideration the evidence produced by the parties has convicted the appellants as described above while co -accused Shakiluddin was acquitted. We have heard Mr. A.Q. Halepota, learned counsel appearing for the appellants Raeesuddin and others in Criminal Appeal No. 72 of 1988 and for private respondent in Criminal Revision No. 18 of 1988 and Criminal Acquittal Appeal No. 179 of 1988, Mr. Azizullah K. Shaikh, learned counsel appearing for applicants Noor Muhammad and others in Criminal Revision No. 18 of 1988, and Mr. K.M. Nadeem learned AA.‑G. appearing for the State in Criminal Acquittal Appeal No. 179 of 1983 as well as in Criminal Appeal No. 72 of 1983 and Criminal Revision No. 18 of 1988. It has been contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants in Criminal Appeal No. 72 of 1988,, that there was no motive for the appellants to attack complainant party and the motive was on the side of the complainant party to attack the appellants. It was further contended that the ocular testimony was interested, contradictory, inimical, and unreliable, and the learned trial Judge had erred in relying upon the, same. That the evidence of recovery was contradictory, interested, and unreliable. The house from where the recovery is alleged to have been made was occupied by number of persons, and from the evidence of S.H.O. and Mashir Wasim, it was clear that none of the appellants was in exclusive possession of the same. That the three appellants had received number of injuries but the complainant and P.Ws. have failed to explain the same and therefore, no reliance could be placed on their evidence. It was further contended that the S.H.O. has admitted that the incident took place inside the house of the appellants, and therefore, the complainant party was aggressor, and appellants had a complete right of private defence of their persons. Mr. K.M. Nadeem learned A.A.‑G. appearing for the State has contended that the prosecution had proved beyond reasonable doubt that appellant Raeesuddin was responsible for the murder of‑deceased Muhammad Shafi but looking to the circumstances of the case he was liable under section 304, Part 1, P.P.C. However, he was not able to controvert the fact that the incident took place inside the house of the accused/appellants and that the complainant party had the motive to attack the appellants. As far as Criminal Acquittal Appeal No. 179 of 1988 was concerned, Mr. K.M. Nadeem learned A.A.‑G. appearing for the State, did not press the same looking to the prosecution evidence against respondent Shakeeluddin and the defence evidence produced by him. Mr. A.Q. Halepota learned counsel appearing for the respondent Shakeeluddin has contended that the prosecution evidence was contradictory and unreliable regarding the part played by respondent Shakeeluddin and it was further belied by medical evidence. He has further contended that the defence evidence produced by respondent Shakceluddin was more reliable, and therefore, he was rightly acquitted by the learned trial Judge. It was further contended that keeping in view the principles enunciated by superior Courts from time to time even if this Court takes a different view of the evidence, acquittal could not be set aside. Mr. Azizullah K. Shaikh, learned counsel appearing for the applicants Noor Muhammad and others in Criminal Revision Application No.18 of 1988 has contended that the learned trial Judge has failed to give reasons for awarding lesser sentence to appellant Raeesuddin in spite of the fact that it was proved that he had committed murder of deceased Muhammad Shafi, in such a case he should have awarded normal sentence of death. Mr. A.Q. Halepota, learned counsel appearing for respondent Raeesuddin has contended. that in the present case the incident took place inside the house of the respondent as admitted by the Investigating Officer, and the respondent and his two brothers had sustained number of injuries which the ‑prosecution had failed to explain. He has further contended that looking to the circumstances of the case, the appellant was entitled to acquittal and the learned trial Judge had erred in convicting the appellant. We have considered the contentions of the learned counsel. As far as the question of unnatural death of deceased Muhammad Shat was concerned, the same stands proved through the evidence of Dr. Kamaluddin P.W.11, who had initially examined injured Muhammad Shafi, Dr. Khalil Ansari, who has produced post‑mortem report as Exh.42, complainant Noor Muhammad, Mashirnama of death and inquest report as Exhs.19 and

20. Even the learned counsel appearing for the appellants has not disputed so far death of deceased Muhammad Shafi was concerned. As far as the incident is concerned, it has also not been denied. However, the case of the complainant party is that the incident took place in front of the house of the accused/appellants while the complainant Noor Muhammad was going to take milk from a hotel whereas the case of the accused/appellants Raeesuddin, Najamuddin, and Javed is that the incident took place inside their house. The evidence produced by the prosecution in this case clearly shows that there was no previous enmity between the parties but unfortunately on the preceding night there was exchange of hot words between the parties over payment of money which the accused/appellants had spent for providing medicine etc. to the father of complainant Noor Muhammad, and the complainant was beaten by the appellants Raeesuddin. Najamuddin and Javed for which a non‑cog report was lodged by Noor Muhammad at police station and [lie entry regarding the same has been produced as Exh.l

3. Thus, it is clear that tile accused/appellants had no reason to attack the complainant but it was the complainant Noor Muhammad, who had a reason to attack accused/appellants. It has been admitted by the complainant that P.Ws. Ayuh, Yasin and Yaqoob arc real brothers. P.W. Yasin is son‑in‑law of his maternal‑uncle Rafique. While P.W. Abdul Aziz is son‑in‑law of deceased Muhammad Shall. P.W. Falch Muhammad is brother of the complainant. Yasin resides two furlongs away from the place of incident and all the three brothers are living with their father in one and the same house as admitted by complainant at page 109 of the paper book. According to the complainant he was going to Hotel of Mulla Muhammad Shat for the purpose of purchasing milk. There is one Wara `cattle pen' on the backside of his house. The milk is available in the Wara. He has further admitted at page 104 of the paper book that the way to Wara behind his house is more short than the way to hotel of Mulla. It is also admitted by complainant that his deceased uncle used to permanently reside in Sherabad Landhi Colony `K' Area. From the above admissions made by the complainant it is clear that there was a Wara `cattle ‑pen' available on the back side of the house of the complainant where milk used to be sold and this Wara was nearer to the house of the complainant than the hotel. It is also clear that witness Yasin and others were not residents of locality where the incident took place but they used to reside about two furlongs away from the place of incident. It is further clear that deceased Muhammad Shafi was uncle of complainant Noor Muhammad, and the P.Ws. and complainant were related inter se. Specific questions were put to the complainant and witnesses in cross examination that the incident took place inside the house of the accused/appellants and that the complainant and P.Ws. entered the house of accused Raeesuddin, Javed and Najamuddin duly armed with Chhuris and sticks and caused them injuries inside their house but the same were denied. It was further suggested in cross‑examination that in such attack persons on both sides were injured. Even it was denied that accused Racesuddin, Naj amuddin and laved had sustained injuries in the fight. However, the evidence of Dr. Captain Bashir P.W.13 shows that on 9‑8‑1983 the police had referred injured/accused Racesuddin, Najamuddin and Javed to him for examination and treatment with regard to the injuries on their person. On examination he had found six injuries on the person of Racesuddin out of which injury No.2 was grievous, seven injuries on the person of Najamuddin out of which injury No.1 was on the centre of forehead of injured Najamuddin, while Javed Ahmed had eight injuries. He has produced the medical certificates as Exh.44 to Exh.49. In addition to the above medical evidence there is evidence of S.4.O. Cliaudhry Muhammad Ashraf P.W.14, who has stated in examination‑in‑chief that all the three accused persons (Shakeeluddin, Najamuddin and Javed) had injuries on their persons and therefore, they were referred to the hospital for their treatment. He has further admitted in cross‑examination (at page 253 of the paper book) that from the evidence and the statements of the witnesses produced by accused Racesuddin it was proved that the place of incident in his case was inside the house. He has also admitted that the place of Wardal in tile F.I.R. lodged by complainant Noor Muhammad was in front of Quarter No.ll‑403 (which belonged to accused Raeesuddiny. From the above discussion and from the evidence of Dr. Captain Bashir and Investigating Officer Chaudliry Muhammad Ashraf it is clear that the three appellants had also sustained injuries during the same incident and the incident took place inside the house of the, appellants. The appellants have specifically suggested to the complainant and witnesses in cross‑examination that they had formed unlawful assembly and had attacked them in their house after making necessary preparation. From the circumstances as discussed above, it is clear that it was the complainant, who had a motive to attack the accused/appellants. The defence version about attack appears to be plausible in view of the fact that the witnesses were near relations of the complainant and all of then including deceased Muhammad Shah except P.W. Ghulam Nabi had come from a distant place. They have failed to explain injuries on the persons of the accused /appellants. It will not be out of place to mention here that initially it appears that S.H.O. Chaudhry Muhammad Ashral was reluctant to record the F.I.R. of accused Raeesuddin. It is further clear that he did not mention the injuries found on the persons of the appellants at the time of arrest in the Mashirnama of arrest dishonestly. However, since the accused/appellants had number of injuries, the same could not be suppressed and he had to refer them to the medical officer for examination and treatment. It also appears that since the appellants were in custody, their mother went on moving higher authorities for taking action against S.H.O. and recording of counter F.I.R. There is another aspect of the case which cannot be overlooked i.e. presence of respondent Shakeeluddin at the place of incident and his participation. According to complainant Noor Muhammad accused/ respondent Shakeel was armed with Saria (iron rod) and he. had caused injuries alongwith others to injured Muhammad Rafique uncle of complainant but surprisingly enough there were only three injuries on the person of injured Muhammad Rafique one on his right wrist, other on his right forearm and 3rd on front of right chest and out of the three injuries, injuries Nos.] and 2 were caused by blunt weapon. However, as far as P.Ws. Muhammad Ismail, Ghulam Nabi, Muhammad Waseem and Muhammad Yaqoob were concerned, they have deposed that when many pcrsons collected at the place of incident accused Shakeel escaped and went to the roof of his house and started thrown cement blocks on the witnesses and one of the blocks thrown by Shakecl hit on the head of Muhammad Shafi, as a result of which Muhammad Shaft fell on the ground. This part attributed to accused/ respondent Shakeel is in total conflict with the F.I.R. as well as evidence of complainant Noor Muhammad. Even it is in conflict with the medical evidence inasmuch as according to the post‑mortem report deceased had only two incised wound injuries and had no blunt weapon injury on his person according to the post‑mortem report. However, the initial medical certificate issued by Dr. Kamaluddin does show that the injury No.3 was lacerated wound 1" x 1/2" scalp deep at right front temporal region. However, from the dimensions of the injuries it is clear that the same,, could not be caused by a cement block. In addition thereto the respondent has taken a plea of alibi, which is supported by ocular as well as documentary evidence. He has examined Muhammad Shahrad Hussain, Advocate D.W.1 from Bahawalpur, who has stated that on 9‑1q‑1953 his wife Maqsood Jehan had executed agreement of sale in respect of a plot situated in Quetta Town, Karachi, in favour of accused Shakeel. He himself had signed the agreement as a witness so also one Saijad Hussain. This agreement was drafted by Petition writer Ajmal Hussain. He has produced photo copy of the agreement as Exh.62, photo copy of allotment as Exh.64 and original plan as Exh.65 D.W. Ajmal Hussain and Sajjad Hussain witnesses of execution of sale agreement have fully supported the respondent. There is also evidence of one Ghulam Jilani Sub Inspector D.W.5, which shows that the accused/respondent Shakecluddin was on leave from &‑8‑7983 to 7‑111‑1953. He has produced the entry regarding departure of accused Shakeeluddin on earned leave on 8‑8‑1953 as Exh.71 and application for leave as Exh.74. From the above discussion, it is proved that accused/respondent Shakeeluddin was not present at the place of Wardat on the day of incident which is further supported by the fact that he had no injury on his person which he was arrested, and he was falsely implicated by the complainant and P.Ws. because he happened to be brother of co‑accused. Adverting to the case of appellants Raeesuddin, Javed Ahmed and Najamuddin, it has been proved that the incident took place inside their house JA and they had received number of injuries which have not be; n explained by the prosecution They had specifically suggested to the witnesses in cross‑examination that they had attacked the accused in their house and had sustained injuries in the fight but this suggestion was denied In the case of Ghari Khan and another v. The State P L D 1965 (WR) Quetta 33, it was observed that: "The plea of the right of private defence could still be allowed even if it is not specifically pleaded by the accused, provided such an inference is ‑ warranted from the evidence on the record which of course should be very clear, and secondly, the right of private defence could even be allowed on the basis of the solitary statement of the accused himself provided it was found to be reasonably possible creating a reasonable doubt regarding the truth of the prosecution case."' It was further observed that: "Obviously the appellant had no apprehension of death but it only stand to reason that defence in cases of an aggressive attack by several armed persons cannot be minutely planned in calculated manner to be modulated step by step according to the attack, nor can the blows in such circumstances be weighed in golden scales " It was further observed that: For entitlement to the benefit of an exception meriting acquittal, the test is not whether the accused has proved beyond a reasonable doubt that he comes within any exception but whether in setting up any defence he has created reasonable doubt in the case of prosecution and thereby earned his right of acquittal. Even if the evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the exception .pleaded, the accused will clearly entitle himself to acquittal if upon a consideration of the evidence, as a whole, a reasonable doubt is created in the mind of the Court (whether the accused is or is not entitled to the benefit of exception)." In the case of Jumma v The State 1908 P Cr. L J 352 it was observed that: "It is well‑settled that if 'a reasonable possibility of such a plea favourable to the accused could be spelt out from the circumstances of the case, the omission on the part of the accused person to raise the same or to take an inconsistent position would not be fatal to his defence." In the above case, reliance was placed on the case of Ali Zaman v. The State P L D 1963 SC 152 In the case of Inayatullah and another v The State P L D 1966 (W.P.) Lah. 8; it was observed that: "1t would be wrong in principle to hold that the petitioners were aggressors, merely on the basis of the fact that the complainant and hip son suffered greater number of injuries than the injuries suffered by the accused without taking into consideration surrounding circumstances the case." It was further observed that: "The failure on the part of the prosecution to explain injuries sustained by the accused, this omission coupled with the genesis and the manner of occurrence makes the prosecution version highly doubtful, and it lend support to defence plea of right of private defence which it is pertinent to point out was raised at the earliest stage of the proceedings. It is true, that the account given by the two witnesses as to how injuries were received by P.W. Hadayalullah is unconvincing but it is a normal incident of an `adversary proceeding' to minimise one's own part in the incident." It was further observed while relying upon the case of Ghulam Oadir v. The State P L D 1959 Lah 573 that: "When right of private defence of a person or property is available in law, the Courts have always viewed with indulgence the acts of a person who in the heat of the moment under a strong feeling of self‑preservation working on him pursues his defence a little further than is absolute necessary. It has often been said that the right of private defence could not be weighed in golden scales." In the case of Ahmed Din v. Faiz Ahmed and 2 others 1972 S C M It 549; the accused were acquitted by the High Court on the plea of right of private defence. The complainant filed petition for Special Leave to Appeal on the ground that the deceased received three injuries whereas accused had received one injury and, therefore, the accused had exceeded the right of private defence, but the contention was repelled by their Lordships and it was held that: "The mere fact that the deceased received three injuries whereas Hashim got only one does not by itself show that Hashim had exceeded the right of self‑defence. His right to defend himself continued as long as he had reasonable apprehension of harm from his adversary. It is well recognised that the right of self‑defence cannot be modulated step by step nor can it be measured in golden scales." and the petition was dismissed. In the case of Nasarullah and another v.‑The State 1955 S C M R 1715: the appellants were convicted under sections 102 and

326. P.P.C. They filed appeal before the Honourable Supreme Court against their conviction and their Lordships of the Supreme Court were pleased to observe as under: "The suppression of the injuries of appellant Nasrullah by all the eye witnesses, his counter‑version getting support from the recoveries from complainant's house make the prosecution case of one sided attack highly doubtful and lend credence to the plea of the appellants." the appeal was allowed and the appellants were acquitted. In the present case the three appellants have injuries on their persons and the same have not been explained by the prosecution. The complainant, Noor Muhammad had a motive to attack the appellants and the eye‑witnesses who are near relations of the complainant as well as deceased Muhammad Shari came from a distant place and the admission of Investigating Officer that the incident took place inside the house of the appellants goes a long way to show that the defence of the appellants was true. As far as the evidence of recovery of weapons from the appellants was concerned, it is contradictory, unnatural and unreliable. The evidence of Mashir Muhammad Wasim P.W.4 shows (at page 140 of paper book) that he was sitting in the hotel when police party came and arrested all the four accused persons and prepared such Mashirnama which he has produced as Exh.17‑A. Then all the accused persons were taken to the police station and after short while, (about 15 minutes) brought back accused Races and Najamuddin to their houses. He was called by the police to act as Mashir, thereafter accused Races and Najmuddin led the police party into their house, Races took out a dagger from the lower part of the Almirah which was blood‑stained. Thereafter accused Najmuddin took out an iron rod from the back of Almirah. Police prepared such Mashirnamas and obtained his signatures. According to him Mashirnamas Exh.17‑B and 17‑C respectively are the same. Thereafter, after five/ten minutes, the police brought back accused Javed to his house who led the police to his house and produced the Chhuri from the back of the Almirah which was blood stained. The police prepared such Mashirnama and obtained the signatures which is Exh.l7‑C. In cross‑examination he has said the article `A', which shows it was secured from the possession of accused Javed, was not scaled by the police in his presence. Article `B' on which it is written that it was covered from the appellant Races he cannot give its length, the room from where the accused persons had produced the incriminating articles before the police was about 12' to 14', the incriminating articles were lying in between wall and almirah. His National Identity Card has been lost. He has denied a suggestion that he is not Wasim, who had signed the Mashirnama (Note: the deposition, shows the father's name of witness Wasim as Muhammad Nacem whereas the Mashirnamas of recovery show Wasim son of Mustaqim. The witness does not claim that his father was called with the name of Muslaqim as well). Mashirnama Exh.17‑B shows that accused Raccsuddin had alone produced the article while Mashirnama Exh.17‑C shows that accused raved had produced one blood‑stained Chhuri from the backside of a steel almirah and accused Najmuddin also produced one Saria (iron rod) blood‑stained from tll; back side of steel almirah. The evidence of Investigating Officer, Ch. Muhammad Ashraf shows that after the arrest of three accused he interrogated them and on interrogation accused Races produced blood‑stained dagger, for which he prepared Mashirnama as Exh.17‑B, accused Javed produced blood‑stained Chhuri from the backside of Almirah while accused Najmuddin produced an iron rod from the same place and he prepared such Mashirnama which has been produced as Exh.17‑C. In cross‑examination (at page 262 of the paper book) he has stated that after the arrest of the accused persons he did not take them to police station before recovery of articles mentioned in Exh.17‑B and Exh.17‑C. From the above discussion, it is clear that on one hand the evidence of recovery is contradictory inasmuch as according to Mashir, accused were taken to police station after their arrest and were brought to their house for recoveries after some time whereas Investigating Officer has stated that he did not take accused to the police station before making recoveries. The evidence further shows that the iron rod and Chhuri were lying together in between almirah and the wall and there is no evidence that the almirah from which dagger was produced by the accused was locked. Since the house was occupied by three appellants and their brother Shakiluddin and other members of the house it cannot be said that these articles were recovered from the exclusive possession of the appellants. Moreover, there was long delay in sending the articles to the chemical examiner for which the S.H.O. has failed to make any explanation, The U articles are alleged to have been recovered from the appellants on 9‑R‑1983 and the same were sent to the chemical examiner on 5‑2‑1984. In view of the above circumstances and the fact that the Mashir who was examined in the case appears to be a different person than the one who had signed the Mashirnama, no reliance could be placed on the recovery. From the above factual as well as legal position we are of the considered view that the appellants Races, Najmuddin and .laved had a complete right of private defence and, therefore, their Criminal Appeal No. 72 of 1983 is allowed, their conviction and sentences are set aside and they are acquitted of the charge. They shall be set at liberty forthwith if not required in any other case, As far as acquittal appeal filed by the State against the acquittal of respondent Shakil was concerned, the same was not pressed by Mr. K.M. Nadeem, learned A.A.‑G. appearing for the State. Even otherwise we have gone through the evidence produced by the prosecution as well as the accused/respondent. The prosecution evidence is contradictory and is belied by medical evidence whereas the plea of alibi taken by the respondent is fully supported by documentary and ocular evidence, which is independent, natural and reliable. The learned trial Judge has given cogent reasons for the acquittal of the respondent and the judgment does not suffer from any infirmity and as such does not call for interference from this Court and, therefore, the acquittal appeal is dismissed. As far as Criminal Revision No:18 of 1988 was concerned, Mr. Azizullah K. Shaikh, learned counsel appearing for the applicants has contended that the learned trial Judge has failed to give reasons for awarding lesser sentence to appellant/accused Raeesuddin. There is no doubt that the learned Judge should have given reasons for awarding lesser sentence to appellant /accused Raeesuddin but in view of the fact that we have accepted his appeal and acquitted him, the present revision has become infructuous and is accordingly dismissed. We have decided the above matters on 29‑8‑1989 by a short order, and these are the reasons for the same. N.H.Q./R‑105/K Appeal accepted.