P L D 1965 (W (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑This is an appeal by Gliazi Khan (35) and his father‑in‑law, Marri Khan (60) They stood their trial for offences under sections 304 and 323, P. P. C., respectively, in the Court of the Sessions Judge, Quetta. Ghazi Khan was charged with the offence of culpable homicide not amounting to murder for causing death of one Ghulam Nabi on the morning of 16th of September 1962, in village Phudkali near Quetta. Marri Khan was charged with having caused hurt to Ghulam Nabi deceased. Both were convicted by the learned Sessions Judge vide ‑his order, dated the 30th of April 1964. Ghazi Khan appellant was convicted under section 304, P. P. C. and sentenced to ten years' rigorous imprisonment and a fine of Rs. 2,000.00 (rupees two thousand only) or in default to two years' further rigorous imprisonment, while Marri Khan was convicted under section 323, P. P. C. and sentenced to a fine of Rs. 100.00 (rupees one hundred only) or in default to three months' rigorous imprisonment. They have now come in appeal before us.

2. The appellants and the complainant pasty belonged to the same village but to different castes of Narzaies and Bangalzaies, respectively, the latter being in majority. On the 15th of September 1962, i.e., a day prior to the occurrence, Jamal Din, son of Adam Khan (P. W. 4), had a quarrel with Marri Khan appellant over a petty matter. The dog of Jamal Khan attacked the chicken of Marri Khan appellant which led to a dispute between the two. Next morning, a compromise was effected between the parties and Marri Khan appellant entertained Adam Khan, Ali Gul and Abdul Hakim to a breakfast at his house. At the same time, an untoward occurrence took place at some distance from the village near Kili Sheikhan which not only spoilt the atmosphere of cordiality prevalent in village but led to the unfortunate happening, resulting in the murder of Ghulam Nabi. Mir Muhammad Bangalzai (P. W. 3) happened to meet Taoos Khan son of Marri Khan appellant, near Killi Sheikhan and the latter whipped him with a 'hunter. Mir Muhammad came to village and reported.the incident to his brother Abdul Ghafoor complainant (P. W. 1) at his shop. Abdul Ghafoor P. W. and Ghulam Nabi deceased went to the house of Marri Khan to inform Adam Khan, father of Din Muhammad (P. W. 2) of the fresh occurrence. Adam Khan was one of the elders and, as at the house of Marri Khan busy in the enjoyment of breakfast served after the compromise of the previous cecurrence. As Abdul Ghafoor and Ghulam Nabi were proceeding towards the house of Marri Khan they were met by Ghazi Khan appellant who was armed with a hatchet and after some altercation, first gave a blow to Abdul Ghafoor with the blunt side of the hatchet and then struck Ghulam Nabi deceased on the head with its sharp edge. From the complainant side Mir Muhammad and Din Muhammad P. Ws. arrived at the scene, while Marri Khan appellant allegedly armed with a danda also came there from his house and dealt a blow with it to Ghulam Nabi deceased. During the fight Din Muhammad (P. W. 2) and Mir Muhammad (P. W. 3) also sustained injuries besides Abdul Ghafoor P. W. and 6hulam Nabi deceased, while the appellants were also injured. Abdul Ghafoor and Ghulam Nabi deceased were removed to the hospital. The Sub‑Inspector, who in the first instance, got information of the fight from Saleh Muhammad (P. W. 6), reached the spot and recorded the statement (Exh. P/A) of Abdul Ghafoor (P. W. 1) which was treated as first information report in the case on the basis of which the case was formally registered under section 307/109, P. P. C. but on the death of Ghulam Nabi was altered to section 302/109, P. P. C. It may be mentioned in this context that Saleh Muhammad (P. W. 6) lodged a report at Police Post Sariab from where the Sadar Police was informed on the telephone. Exh. P/Q is a copy of the relevant entry in the daily diary of the police post. The Sub‑Inspector recorded the statement of the witnesses, sent the injured persons to the hospital and took into possession two dandas (Exhs. P. 1 and P. 3) vide Memo. Exh. P/J. These were produced by Nazar Muhammad (P. W. 5) who had also reached the spot and had seen the appellants attacking Ghulam Nabi deceased. Bloodstained earth was secured from the place of occurrence vide Memo. Exh. P/H. The Sub‑Inspector then went to the hospital where Ghulam Nabi deceased was lying unconscious and unable to make a statement. Exh. P/N in his query addressed to the doctor and Exh. P/N‑1 the doctor's endorsement to the effect that the patient was unconscious and unable to make a statement. The statement of the appellants were also recorded by the Sub‑Inspector in the hospital who were arrested. Blood‑stained clothes of Ghazi Khan appellant were removed from his person and taken into possession vide Memo Exh. P/G. Ghazi Khan appellant then got recovered hatchet (Exh. P/2) from the garden of his house which was taken into possession vide Memo. Exh. P/F. Site plan (Exh. P/E) which is a rough sketch, was also got prepared through Patwari Muhammad Yusuf (P. W. 10). The blood‑stained earth, the blood‑stained clothes of Ghazi Khan appellant, the hatchet the two dandas and the shirt of Ghulam Nabi deceased were made into sealed parcels and sent to the Chemical Examiner whose report is (Exh. P/O). Ghulam Nabi deceased expired at about midnight and on the next morning his inquest report (Exh. P/P) was prepared by Sultan Shah Sub‑Inspector and thereafter post‑mortem examination was conducted by Dr. Kamal Khan, Medical Officer, Incharge, Civil Hospital, Quetta, who appeared as P. W.

7. Medical certificates of the injuries of Abdul Ghafoor, Din Muhammad, Mir Muhammad P. Ws. and Ghazi Khan and Marri Khan appellants were also obtained by the Sub‑Inspector who after completing the investigation challaned the appellant on the 21st of September 1962.

3. Dr. Kamal Khan (P. W. 7) performed the post‑mortem examination of Ghulam Nabi deceased on the 17th of September 1962, at 11‑30 a.m. and found the following injuries:‑ (1) Incised wound, 2" x 1"x " on left parietal region. (2) Bruise on the left side of the forehead, 1" x ". (3) Bruise 1" x 1", on the outer side of the left forearm, In his opinion, death was due to compression and haemorrhage in the meninges and in the brain tissue and complications by inhalation of the secretion and asphyxia. Injury No. 1 could be caused by hatchet (Exh. P/2) and was sufficient in the ordinary course of nature to cause death. The other two injuries were caused by a blunt weapon.

4. Ghazi Khan appellant pleaded not guilty to the charge and took up the following position before the committing Magistrate:‑‑ "It was a holiday on 15‑9‑

62. My uncle's son went to Bazar to make purchases of articles for his shop and he left me behind at his shop. It was about 12 noon. While I was sitting there, Mir Muhammad, Nazar Muhammad, Ghulam Nabi, Muhammad Bux, Din Muhammad, Mullah Nabi Bux, Abdul Ghafur and Muhammad Akbar came to the shop. Mir Muhammad bade to his companions to kill me. I be sought them to let me know by crying in the name of Allah. Mir Muhammad again bade to his companions. Thereupon, the companions of Mir Muhammad declared that they would kill me since Taoos Khan had beaten his brother. When they were about to assault me I came out of my shop. They entered the shop and over‑powered me. All of them were having dandas in their hands and with these dandas all of them assaulted me. While I was shielding myself empty‑handed. I caught hold of the kulhari (Exh. P/2) from the hands of one of the assailants. In order to protect myself, but as a result of the attack of the above‑named persons, the kulhari fell and then I too fell down. After falling down I became unconscious till 17‑9‑62 when I found myself in the Jail Hospital." Likewise, Marri Khan denied his guilt and stated that Nabi Bux had given him a blow on the head at the instance of Adam Khan before he could reach the spot and did not participate in the fight. The committing Magistrate amended the charge under section 302/109, P. P. C. to one under section 304, P. P. C., against Ghazi Khan and under section 323, P. P. C., against Marri Khan which was not altered by the learned Sessions Judge and appellants were tried accordingly. During the trial both the appellants stuck to their earlier position. In answer to question No. 2 Ghazi Khan stated as follows:‑ "Ghulam Nabi deceased and seven others came to my shop armed with dandas and they attacked me. I snatched the hatchet from one of those persons, whom I cannot name. They again attacked me and I warded off the blows of the assailants with the hatchet and cannot say how Ghulam Nabi was injured. I did not cause him any blow with the hatchet." Marri Khan appellant stated that he did not participate in the fight and reached the spot when the fight was over. The appellants produced no evidence in defence.

5. The learned counsel for the appellants raised the following contentions before us:‑ (i) That Saleh Muhammad (P. W. 6) had earlier informed, the police about the occurrence on the basis of which the Sub‑proceeded to the spot and this information should have been treated as the first information report in the case. (ii) That Ghazi Khan appellant had no motive to come out with a hatchet in order to attack the complainant and his companions. . (iii) That according to Din Muhammad (P. W. 2), Mir Muhammad (P. W. 3) and Nazar Muhammad (P. W. 5), Ghulam Nabi deceased carried a danda with him which he actually used during the fight according to P. W. 2, and if the object was merely to inform Adam Khan why the danda was at all carried. (iv) That Albdul Ghafoor (P. W. 1) , and Mir Muhammad (P. W. 3) who gave the distance of the place of occurrence 30 yards and 30 paces, respectively, from the shop of Abdul Ghafoor, are completely belied and falsified by the site plan (Exh. P/R) which pinpoints the place of the occurrence in front of the shop of Ghazi Khan appellant from where blood‑stained earth was recovered. (v) That admittedly the shop of Ghazi Khan appellant lies beyond the lane leading to Marri Khan's house and if the object was to inform Adam Khan at the house of Marri Khan then the fight could not have taken place in front of the .shop of Ghazi Khan appellant. (vi) That the injuries sustained by the appellants have not been properly explained. (vii) That the plea of self‑defence also supported by circumstantial evidence was taken up by Ghazi Khan appellant at the earliest opportunity and was wrongly rejected by the learned Sessions Judge. (viii) That the judgment is in fact no judgment in the eye of law in so far as Marri Khan appellant is concerned inasmuch as his case has not been discussed at all by the learned Sessions Judge.

6. Before taking up the points raised by the learned counsel for the appellants it would be pertinent to mention that there was no regular site plan available in the case except a rough sketch prepared by Muhammad Yusuf Patwari who appeared as P. W. 12 and left much to be desired. Particularly it suffered from two serious omissions. The shop of Abdul Ghafoor where he along with Din Muhammad and Ghulam Nabi deceased was informed by Mir Muhammad of his being beaten by Taoos was conspicuous by its absence in the site plan. In fact, this was the first important point to have been shown in the plan as it was from this place that Abdul Ghafoor P. W. and the deceased went to the house of Marri Khan, while Mir Muhammad and Din Muhammad are stated to have stayed behind. An equally important lacuna was the absence of any scale as a result of which we were unable to get a clear concept of relevant distances. On the suggestion of the learned counsel for the appellants we considered it necessary in the interest of justice to inspect the spot which was done by us on the 20th of July 1965, at about 6 p.m. in the presence of the learned counsel for the appellants as well as the learned Assistant Advocate‑General. On reaching the spot the first thing which we noticed was that the angle of intersection of Arbab Karam Khan Road and Jungle Bagh Road was not correctly given in site plan (Exh. P/S) in which they are shown to be crossing at right angle. Correction was made by us in the site plan at the spot. In fact, the two roads intersect at a 45 angle, as would be clear from the correction made by us in blue pencil. It would be useful to reproduce our inspection note dictated at the spot on the 20th of July 1965, which would be helpful in the appreciation of evidence in the context of the relevant situations of various points and their respective distances inter se:‑ "We reached the spot at about 6 p.m. accompanied by the learned counsel for the appellants and the learned Assistant Advocate‑General and inspected the spot. Sher Dil S. H. O. Police Station, Sadar, Quetta, was also present. We noticed that the directions of the roads, particularly their angle of intersection, were not correctly given. Necessary corrections were made by us at the spot in the rough sketch prepared by the Patwari, and Jungle Bagh Road has been shown, by us in blue intersecting Arbab Karam Khan Road at point 'D'. The relevant points were marked by us and their respective distances were measured in our presence by Sher Dil S. H. O. Point 'A' is the door of the shop of Ghazi Khan and `B' the corner of the lane leading to the door of the house of Marri Khan which is at point `C', 'D' is the point of intersection of the roads and `E' the door of the shop of Abdul Ghafoor (P. W. 1). The relevant distances are as follows:‑ `A' to `B'= 36 feet. `B' to `C'= 16 feet. `D' to `E'= 44 feet. `D' to 'A' = 340 feet. The vacant space lying between Arbab Karam Khan Road and the southern wall of the house of Marri Khan appears to have been recently built and is marked `G' and the outer wall of the house of Marri Khan now runs along Arbab Karam Khan Road. There is also a small mosque at, point 'F' opposite the point of junction of the roads." The entries on Exh. P/E in blue pencil were made by one of us (Mr.,Justice Muhammad Afzal Cheema) who also signed his name.

7. Point (i). We now take up the points raised by the learned counsel one by one. Saleh Muhammad (P. W. 6) stated as follows:‑ "Nazar Muhammad sent me to the Thana for information. I brought the police to the village." Syed Sultan Shah Investigating Officer (P. W. 13) stated:‑ "I received an information that a fight was going on in the village Phudkali. The informant was Saleh Muhammad. I then went to the village which is about three miles from Sadar Thana. I reached there at noon. I recorded the statement of Abdul Ghafoor injured and that is the first information report (Exh. P/A) in the case." Again he stated :‑ I produce a copy of the entry from the Roznamcha which was a telephone message of this fight and is. Exh. P/Q". In cross‑examination he stated: ‑ I got a telephonic message of this incident at about 11‑15 a.m. and I reached the scene of offence at about 12 noon." Exh. (P/Q) is a copy of an entry in the daily diary of Police Post Sariab Road, Quetta, dated the 16th of September 1962 and rendered into English reads thus: 16‑9‑1962 11‑15 a.m. "Saleh Muhammad, son of Aziz Muhammad, caste Mengat resident of Killi Shaikhan, at present post employed at Rani Bagh reported that in village Phudkali some persons are fighting among ‑ themselves near the road. I have come to lodge the report. At this Head Constable, along with Muhammad Siddiq Constable No. 32, Amir Muhammad Constable No. 367, Muhammad Ali Constable No. 447 and Muhammad Saeed Constable No. 351 proceeded to Phudkali. Information has been sent to Police Station, Sadar Quetta on the telephone. The Muharrir will be in charge in my absence. 21‑9‑62 true copy (Sd) Muhammad Sadiq." It may be mentioned here that the name of the person who lodged the report, as mentioned in column 2, is Resham Khan. It is not quite clear whether the information conveyed by Saleh Muhammad P. W. to Sultan Shah Sub‑Inspector, which both have mentioned in their statements, refers to the information conveyed through Exh. P/Q. Unfortunately, the record is silent about this and no effort was made by the defence either to get it clarified. There can, however, be two possibilities. Either the only information conveyed by Saleh Muhammad to the police was the one communicated by him to the Head Constable in charge Police Post Sariab Road, Quetta, as contained in Exh. P/Q or may be, not being satisfied by this he might also have personally gone to the police station to lodge a report. We are inclined to think that if Saleh Muhammad had personally lodged the report at Sadar Police Station, his statement would have been recorded at the police station as he himself 'had seen a part of the occurrence as would appear from his statement. Presumably, therefore, the Sub‑Inspector got the information on telephones from the Head Constable with whom it was lodged by Salehls Muhammad P. W. at Police Post Sariab Road as contained in Exh. P/Q. Section 154 of the Criminal Procedure Code reads thus:‑ "Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of police station, shall be reduced to writing by, him or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the local Government may prescribe in this behalf." In a similar case Muhammad Afzal v. The State (P L D 1960 Lah. 97), Abdul Aziz Khan, J., sitting in a D. B. with Ortcheson, J., observed as under: "Only information complying with the provisions of this section constitutes what is known as the first information report. The entry in the Roznamcha. (Exh. P. O/1) does not conform to the provisions of this section. Head Constable Sardar Khan, who obtained the information, was not in charge of the police station. The record of the information in the Roznamcha does not show that it was read over to Major Hamid. It was not signed by Major Hamid. Moreover, it was not entered in the book prescribed by the Provincial Government for the purpose of recording first information reports. In Ahmad v. Emperor A I R 1938 Lah. 787 it was held that an entry made by a Sub‑Inspector in the daily diary of the police station is not a first information report. The question whether an unsigned telegram and telephonic message are first information reports, within the meaning of section 154 of the Code of Criminal Procedure, was considered by a Division Bench of the Lahore High Court in Crown v. Faiz Muhammad P L D 1952 Lah.215 and their Lordships observed: Unsigned telegrams and telephonic messages are not first information reports within the meaning of section 154, Criminal Procedure Code, and if after the receipt of a telegram or telephonic message the police proceeded to the spot and took down the information from the complainant or the informant and got it signed by him, the signed statement would be the first information report and not the telegram or the telephonic message. In the present case, Sub‑Inspector Siraj‑ul‑Haq went to the Mayo Hospital and recorded Abdul Ghafoor's statement (Exh. P. A), which in our opinion, is the first information report in the case." Considered in the light of the above ruling the objection taken by the learned counsel for the appellants loses all its force, as in this view of the matter Abdul Ghafoor's statement (Exh. P/A) recorded in the hospital could alone be treated as the first information report.

8. Point (ii). There appears to be a good deal of force in this contention of the learned counsel. It is in evidence that Marri Khan was entertaining Adam Khan and others in celebration of the conciliation of the dog and chicken dispute when the fight began outside on the road. There is nothing to indicate that Ghazi Khan appellant, who presumably would have been quite happy and contented over the compromise, had any knowledge of the subsequent quarrel between the brother‑in‑law Taoos and Mir Muhammad P. W. Even if Taoos had informed Ghazi Khan of the occurrence, it was he who was the aggressor having whipped Mir Muhammad and there was no earthly reason for Ghazi Khan to take the initiative. Obviously, therefore, the boot was rather on the other leg. It appears to be only too reasonable to infer that on the complaint of Mir Muhammad, his brother Abdul Ghafoor, Ghulam Nabi, Din Muhammad and Mir Muhammad himself might have proceeded to the shop of Ghazi Khan appellant in order to wreak vengeance and not to inform Adam Khan, as the prosecution would have us believe, for if the object was only to inform Adam Khan one person would have been good enough to do so. Assuming that Ghulam Nabi deceased casually happened to hold a danda at the time, its use by the latter during the fight by no means offers a satisfactory explanation of the injuries. sustained by the appellants which are as follows:‑ Ghazi Khan: (1) Lacerated wound, 1" x 1/16" x 1/8", on the left upper jaw. (2) Six small abrasions on the back of the right hand, with tender hand. (3) Abrasion on the right forearm with haematoma 3" x 1 " in dimension. (4) Abrasion 1" long on the right thigh. Marri Khan: (1) Lacerated wound, 2" x " on the vertex antero- posteriorly. (2) Abrasion l" x ", below the angle of the left scapula. From 'the account of the fight given by the eye‑witnesses it appears that Ghulam Nabi could hardly have had an occasion to use his danda which Abdul Ghafoor P. W. was allergic to admit in his hand. Since according to the prosecution Ghazi Khan appellant proceeded towards the complainant and his. companions, and meeting them half way opened his attack and gave the second blow to Ghulam Nabi deceased, there was obviously no opportunity for the latter to use his weapon, as the solitary hatchet blow on his head felled him and rendered him unconscious. In fact, Din Muhammad (P. ‑W. 2) is the only witness who in a half‑hearted and confused manner referred to the use of his danda by Ghulam Nabi deceased. In cross‑examination, this witness stated:‑ "Ghulam Nabi had a danda in his hand, but I was not armed. I do not know if Ghulam Nabi used his danda on the accused. Ghulam Nabi had used his danda during the fight and I had admitted this in the lower Court. It is not true that all of us had dandas with us or that we used them during the fight. I had stated to the police that only Ghulam Nabi had a danda and we had no weapon. The accused were also injured by us by which I meant by Ghulam Nabi." Evidently, this would hardly be a plausible explanation of the injuries received by the appellants. Mir Muhammad (P.W.3) who from his own showing grappled with Ghazi Khan appellant and received an injury on his hand with the hatchet in which ,r course he is belied by the medico‑legal report (Exh. P/M) shown only two contused wounds; stated in cross‑examination:‑ "Ghazi and Marri were also injured. I do not know h they got injured and what is the nature of their injuries." The most important circumstance which gives a complete lie to the P. Ws. and in fact takes the wind out of the prosecution case is the positive and unchallengeable fixation of the place occurrence. It has been clearly shown in Exh. P/E to be front of the shop of Ghazi Khan appellant short of the lane leading to Marri Khan's house. The blood‑stained earth was secured by the Sub‑Inspector from this very place. In recovery Memo. (Exh. P/H) whereby, blood‑stained earth was secured place of occurrence has been mentioned to be in front of the shop of Marri Khan which obviously refers to the shop of Ghazi Khan, his son‑in‑law, as it would be clear from a perusal of the site plan (Exh. P/E). Whether this mis-description as well as the omission to show Abdul Ghafoor's shop in the site plan is calculated and deliberately resorted with a view to help the complainant party or was the result of inadvertence, we cannot say. However, the fact of the place of occurrence being in front of the shop. of Ghazi Khan is established beyond doubt and completely falsifies both Abdul Ghafoor (P. W. 1) and Mir Muhammad (P. W. 3) in this regard Abdul Ghafoor stated in cross‑examination:‑ "I saw Ghazi accused at a distance of 30 yards from my shop. We were at our shop when we saw accused coming out of his shop." Mir Muhammad (P. W. 3) stated in examination‑in‑chief:‑ "Ghafoor and Ghulam Nabi had gone 30 paces from the shop when accused Ghazi came out from his shop with a hatchet and then attacked first Ghafoor and then Ghulam Nabi." The distance between the shop of Abdul Ghafoor and that of Ghazi Khan as measured in our presence by Sher Dil S. H. O. Sadar is 340 feet. The statements of the two witnesses would thus shift the place of occurrence much nearer to Abdul Ghafoor's shop even short of midway. The truth of the proverbial saying that "men would tell lie but circumstances would not" has been amply borne out in this case.. As a result of the above discussion we dispose of points Nos. (iii) to (vi) raised by the learned counsel for the appellants and come to the conclusion that the complainant party, whatever its force or number, went armed from the shop of Abdul Ghafoor to the shop of Ghazi Khan appellant and attacked him there, having a clear notice to do so.

9. In view of the foregoing discussion, our earlier finding lends strong support to Ghazi Khan's plea of self‑defence which was undoubtedly taken at the earliest opportunity. It was suggested to P. W. 1 in cross‑examination who stated:‑ "It is not correct that Din Muhammad, Mir Muhammad Ghulam Nabi and I fought with the two accused." The position taken up by the appellants before the committing Magistrate as well as the Sessions Judge has been fully reproduced. We are in no manner of doubt that the plea of self‑defence was specifically and elaborately taken by Ghazi Khan appellant. It leaves nothing to be‑guessed or conjectured. The only point to be considered is whether the details given therein are to be believed or not. He mentioned eight persons including the deceased as the assailants who came to his shop armed with dandas and assaulted him. There is no doubt a little inconsistency. He clearly stated:‑ "When they were about to assault me I came out of the shop." but in the same breath added: "They entered the shop and over‑powered me." Since blood‑stained earth was recovered from outside the shop and not inside, in all probability, Ghazi Khan appellant had come out of the shop where the fight had taken place. Again he said: "All of them were having dandas in their hands and with those dandas all of them assaulted. While I was shielding myself empty‑handed I caught hold of kulhari (Exh. P/2) from the hands of one of the assailants." Strangely enough, all had dandas and yet hatchet was seized from one of them. Possibly, one of them had a hatchet as he would have us believe or may be that he had his own hatchet in the shop which he might have used in self‑defence as would be evident from the last line of the statement of Din Muhammad (P. W. 2) who towards the end of cross‑examination stated:‑‑ "The accused used to keep this hatchet on the wall of his shop."

10. The learned counsel for the State contended in this regard that in answer to question 7 before the committing Magistrate and question 2 before the Sessions Judge the stand taken up by Ghazi Khan appellant was that he did not cause Ghulam Nabi deceased any blows with the hatchet and as such, no specific plea of self‑defence bad been taken by him in the absence of which he would not be entitled to the consideration of its benefit. Reliance was placed in this regard on Syed All Bepari v. Nibaran Mollah (P L D 1962 S C 502). In the first instance, it would be wrong to say that no specific plea was taken up by him. No doubt, he did in so many words say that he gave blows in self- defence. He also did not admit having caused blows to Ghulam Nabi with the hatchet, but he clearly stated:‑ "They attacked me. I snatched the hatchet from one of those persons whom I cannot name. They again attacked me and I warded off the blows of the assailants with the hatchet and I cannot say how Ghulam Nabi was injured." The overall impression that one gathers from this as well as from his earlier statement is that he was attacked, snatched the hatchet from one of the assailants and warded off the blows of the assailants with the hatchet. Earlier he had stated that in order to protect himself he whirled the 'hatchet around himself in 11: We now proceed to consider the correct legal position in this regard in the light of the exceptions taken by the learned Assistant Advocate‑General. In Ali Zaman v. The State (P L D 1963 S C 152), a judgment delivered by Cornelius, C. J., it was laid down by his Lordship "In a case where the accused ,persons themselves do not specifically plead self‑defence, the plea can only be allowed on the basis of very clear evidence available on the record, which would go at least to the extent of showing that the accused persons had acted in self‑defence." In a subsequent ruling in Shamshad v. The State (P L D 1963 S C 740), a case in which the only evidence in support of self‑defence was the accused's own statement, his Lordship was pleased to observe:‑ "The case which the accused sought to set up was thus one of self‑defence, and there being no other evidence except his own statement in support, it became the duty of the trial Court as laid down by the Federal Court in the case of Safdar Ali P L D 1953 F C 93 to place the, allegations for the prosecution and those for the defence in juxta‑position against the background of the proved facts and circumstances whether the case set up by the accused was not a reasonably possible one. If it should be found to be reasonably possible, then the effect of creating a reasonable doubt regarding the truth of the prosecution case could not be avoided, and this could not be without effect upon the finding as to the guilt of the accused." In Safdar Ali's case (P L D 1953 F C 93), which is a famous authority on the point, the solitary evidence in support of the plea of self‑defence was the statement of the accused himself. It was observed by their Lordships that:‑ "The principles laid down in Woolmington s case L R 1935 A C 452 are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act. In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after the examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be i rue, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." In the same case it was observed by Cornelius, C. J.:‑ "The Law as formulated in Woolmington's case has made material differences in more than one respect. Malice, as an ingredient of murder, will not be presumed except where the Crown establishes (a) a voluntary act of killing, (b) intention to kill, and (c) absence of provocation. Even where these conditions are satisfied, the Court will not judge the case for the defence (e.g., of accident, self‑defence, provocation) and the case for the whole of the evidence will be regarded, and if then there be reasonable doubt as to whether the act of killing was either unintentional or provoked the benefit will go to the accused person. Mere non‑acceptance of an accused person's special pleading will not justify his conviction of the offence charged, or such as might have been charged." In Muhammad Aslam v. The Crown (P L D 1953 F C 115), the same legal proposition was reiterated by their Lordships. In this case reference was also made to the aforesaid famous authorities of Safdar Ali's case and Woolmington's case. It was laid down by Cornelius, C. J.:‑ "The essential consideration is that the accused person cannot be regarded as having acted in the ordinary case, with more than one intention. Either he must be deemed to have acted with the intention to save himself, or with a criminal intention such as constitutes murder. For the determination of this question it is necessary that the Court should take into account fully all the facts and circumstances appearing on the entire record including such portion of the evidence led for the defence as the Court finds worthy of belief, for even though such evidence may be insufficient to establish the special pleading, it cannot be without effect in relation to the opposing evidence led for the prosecution, since ex hypothesi, it relates to the same incident. The effect, in such a case, may be to create the state of the reasonable doubt of which the Court is bound to give the benefit to the accused."

12. The position as it emerges from the above authorities leads to two clear inferences, firstly, that the plea of the right of the 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. The stand taken up by the learned Assistant Advocate General was that the plea of self‑defence should be specifically taken and should not be allowed on the mere hypothesis of a bare possibility. In support of this contention reliance was placed on Syed Ali Bopari v. Nibaran Mollah and others (P L D 1962 S C 502), to which reference has already been made, and Fazal Hussain v. Nazir‑ud Din and others (P L D 1965 Posh. 82). Having carefully considered both these authorities we are definitely of the view that they are not helpful to the State. The facts of the case discussed in Syed Ali Bepari v. Nibaran Mollah and others were different and distinguishable from those of the instant case. The principle laid down in the second authority is that no right of self‑defence would Ire available in respect of anticipated action and overt act if damage or harm is set in motion. In view of our finding that Ghazi Khan appellant bad been assaulted at his shop and sustained several injuries at the hands of the assailants, this authority would be helpful to him rather than to the State. An analysis of the statements of Ghazi Khan would clearly show: (i) That he was attacked by eight persons, including the (ii) that they were all armed. (iii) that he entreated them in the name of Allah to spare (iv) that he snatched the hatchet from some one of them, (v) that he warded off the blows with the hatchet and whirled it around, and (vi) that he did not hit the deceased with it. Viewed critically, it may be described as a plea of self‑defence though not particularly specific in regard to the blow inflicted on the deceased. This position considered in the context of the evidence on the record and examined in the light of the rulings cited above, leads to the irresistible conclusion that even if Ghazi Khan was hesitant to disclose some facts which he might be suppressing regarding the direct infliction, of the fatal blow on the head of the deceased, the plea of the right of private defence should be allowed to him.

13. It was contended by the learned Assistant Advocate‑General that if the prosecution version was not believed as such, it could beat best a case of free fight in which four persons including the deceased were injured on one side and two on the other, Besides Ghulam Nabi, who is the only person who received a blow with the sharp side of tile hatchet. Abdul Ghafoor, Din Muhammad and Mir Muhammad P. Ws. sustained two simple contused wounds each besides a bruise on the left scapular region of Abdul Ghafoor, the total number of their injuries him seven. As against them, Ghazi Khan appellant suffered eight abrasions and one lacerated wound. In view of our finding given on the basis of earlier discussion we find it difficult to persuade ourselves to agree to this position. Marri Khan was admittedly present at his house busy in the entertainment of Adam Khan and others. The noise outside could not have attracted him alone on the hearing of which Adam Khan, Ali Gul and Abdul Hakim would also have come out with him. We have no reason to disbelieve Marri Khan's statement before the committing Magistrate when in answer td question 8 he stated:‑ . "I was coming out of my house after hearing the‑noise of the fight and then out of the eight assailants Nabi Bux gave me a blow at my head at the instance of Adam Khan." In answer to next question he stated:‑ "I was not allowed to reach the spot even." We thus hold that it was not a case of free fight.

14. It was next argued by the learned Assistant Advocate -General that if the plea of the right of private defence is allowed to Ghazi Khan appellant, he had certainly exceeded it, inasmuch as the fatal blow inflicted by him on the head of the deceased was sufficient in the ordinary course of nature to cause death and should have been known by him to be such. We have carefully considered this question, but have not been able to agree with the learned Assistant Advocate‑General. As mentioned earlier, several blows were attributed by the P. Ws. to Ghazi Khan appellant. According to the prosecution, he was alleged to have injured Abdul Ghafoor, Din Muhammad and Mir Muhammad P. Ws. besides Ghulam Nabi deceased. Din Muhammad stated in his examination- in‑chief that he tried to snatch the hatchet from Ghazi Khan and received an injury on his left hand. Similarly, Mir Muhammad deposed that he grappled with Ghazi Khan appellant and received an injury on his hand with his hatchet. Presumably these injuries should have been in the nature of incised wounds sustained from the sharp end of the hatchet, but none of these witnesses has any such injury. As mentioned earlier, both of them had suffered two contused wounds each and as such, while on the one hand they stand belied by the medical evidence they have not been able to attribute to the appellant an act of aggression or direct attack on them, on the other. On the contrary, at the very outset they appear to have been on the wrong side of the law. As far as we have been able to see the only part ascribed to Ghazi Khan was that he gave the first blow to Abdul Ghafoor obviously with the' blunt side of the hatchet, as Abdul Ghafoor had only blunt weapon injury and the second to the deceased with the sharp edge, having personally suffered eight abrasions and one lacerated wound at the hands of several assailants whose undetermined number was by no means less than four. If it had been a case of fight between two persons i.e., the appellant and the deceased, then in view of the nature of injuries suffered by both, we would have no hesitation in saying that the right of private defence had been exceeded but such an inference would be wholly unwarranted in the instant case. Reference may be made in this regard to Ganga Charan Das and others v. The Crown (P L D 1957 Dacca 281). It was laid down by their Lordships:‑ "A man acting under an apprehension of death cannot be expected to judge too precisely the force of his own blow." Obviously the appellant had no apprehension of death but it only stands 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. The observations made by their Lordships . are reproduced below; "Whether apprehension of death was reasonable or not is a question of fact. The weapon used, the manner of using it, the nature of assault and other surrounding circumstances are to be taken into consideration in determining the question of reasonable apprehension of death cannot be expected to judge too precisely the force of his own blow. He is not bound to modulate his defence step by step according to the attack before there is reason to believe that the attack is over; he not obliged to retreat but he may continue to resist till he finds himself out of danger and if in .a conflict between‑them he happens to kill his adversary such killing is justifiable. Where the assault has once assumed a dangerous form, every allowance should be made for one, who with the instinct of self preservation strong on him pursues his defence a little further than to a perfectly cool bystander would seem absolutely necessary. The question in such cases will not be whether there was an actually continuing danger but whether there was reasonable apprehension of such danger. The law always makes just allowance for the sentiments of a person placed in a situation of peril and who has no time to think. Similarly, if a person has genuine apprehension that his adversary is going to attack him and reasonably believes that the attack will result in a grievous hurt he can go to the length of causing the latter's death in the exercise of the right of private defence even though the latter has not inflicted any blow on him. A subsequent blow will also be justified on the same ground if there is every probability that the latter, if not altogether disabled, will try to hit the former." In that view of the matter we are inclined to think that the) appellant who had reasonable apprehension of at least grievous hurt if not of death had not exceeded the right oft private defence.

15. We find ourselves in full agreement with the learned counsel for the defence that in fact it was no judgment in so far as Marri Khan is concerned. We do not find a word about him therein much less any discussion of the part attributed to him finally warranting his conviction. Strangely enough, it was in paragraph 22 of the judgment that the learned Sessions Judge stated "on the side of the accused only Ghazi had minor and simple injuries." Perhaps the name of Marri Khan was inadvertantly omitted as towards the end the two injuries sustained by him were also mentioned. As discussed earlier by us, Marri Khan was busy in the entertainment of Adam Khan and others at his house by way of celebration of the conciliation and was only attracted by the noise outside. There is not a word to explain the lacerated wound and the abrasion sustained by him. On the other hand, the witnesses, while suppressing several important facts and not coming out with clean hands and clear conscience have consistently attributed the second blow sustained by the, deceased to MarriKhan. Marri Khan has explained in his statement the manner in which he received his injuries which we have no reason to disbelieve. The P. Ws. are not even sure whether Marri Khan used a three‑edged danda or a four‑edged one as would appear from the discrepant statement of P. W. 2 before the committing Magistrate and the Session Court.

16. In conclusion, we are of the opinion that the appellants have succeeded in proving a prima facie case of entitlement to the benefit of an exception meriting acquittal for which 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 H 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 the exception.) This is the test laid down in Munir's Law of Evidence in his commentary under section 105 and to which our attention was drawn by the learned counsel for the appellants. It is based on Cr. L J 524 and I L R 1941 All. 843 and has been reiterated in several subsequent rulings of .our Courts, to which reference has already been made in the judgment. Reference may also be made in this regard to Fazlul Qadir Choudhury v. Crown (P L D 1952 F C 19). It was laid down by their Lordships:‑ "Even if the appellant had failed in his attempt to establish his defence .plan, nevertheless, the prosecution was not absolved from the duty of discharging. the initial onus which lay upon it. The position seems to be this, that although a person may fail to give a satisfactory explanation required of him under the law, he may still take the advantage of any defect or weakness in the prosecution case and claim an acquittal, as original onus on the prosecution of provings the general issue is never shifted and it has to prove the case beyond a reasonable doubt."

17. In conclusion the appeal is accepted, the conviction and sentence are set aside and "the appellants are acquitted. The fine if already paid by the appellants may be refunded to them. S. A. H./S. Q. Appeal accepted.