P L D 1962 (W (PLP)

Report Exh. 9 was lodged by, Piaro at 12 mid‑night. In the same fight Gahi had received injuries and his brother Haji had tiled a report to that police about the incident earlier at 11‑30 p.m. Piaro and Buxal have been convicted in that case also That is subject‑matter of Criminal Appeal No. 316/61. I am concerned here with the appeal of appellant Gahi only.

3. The incident is not denied by the appellant. The report in the counter‑case filed by Gahi's brother Haji is Exh.

7. The appellant in his statements in lower Court Exh. 23 and in Sessions Court Exh. 24 has stated that it was Piaro, Buxal and Allahdino who had caused injuries to him (i.e. appellant Gahi) because Piaro and his party had declared the appellant "Karo" with Mst. Waziran. In Exh. 23 he said that he had caused injuries to Buxal in self‑defence as he had been attacked by Buxal and Piaro with hatchets and given grievous hurt.

4. The evidence against the appellant consists of ocular testimony of P. W 1 Piaro and P. W. 3 Buxal. Piaro gives the previous history of the enticement of 31st. Waziran by the appellant and her restoration through Zamindar P. W. 2 Abdul Hamid, and Piaro's taking her away and leaving her in Kakar Taluka. Piaro then states that as he was returning from Kakar P. W. Buxal Khoso met him near Hambar village about 800 paces away from their village. He then states that the appellant along with his brother Haji and their relation Sher who all were lying in ambush in the watercourse came out and after inquiries about Waziran attacked him. Appellant Gahi aimed a hatchet blow at him which hit P. W. Buxal who had intervened. Piaro then said that he ran away to Kasim Khoso village and informed latter of the incident. Kasim then brought a bullock cart and took the injured Buxal to the Police Station at Mehar two miles away where Piaro lodged his F. I. R. Exh.

5. P. W. Buxal Exh. 9 deposes that he had gone to Hambar village on some work and while returning to his village Khairo Bhatti he met Piar on the way near Hambar. When they had covered a short distance they found appellant Gahi his brother Haji and their relation Sher lying in ambush in the watercourse. They came out and appellant inquired about Mat. Waziran and thereafter appellant Gahi aimed a hatchet blow at complainant Piaro. Buxal says he intervened in order to save the complainant Piaro and while so doing he received hatchet injury aimed at the complainant Piaro from appellant Gahi. Buxal says he became unconscious thereafter and regained his senses at the hospital.

5. Both Piaro and Buxal have denied having lain in ambush for Gahi as was Gahi's case in his F. I. R. Exh. 7 lodged with the police, in the counter‑case. The question for determination in the matter is whether the appellant had voluntarily caused injuries to Buxal and whether he did so in self‑defence. P. Ws. Piaro and Buxal said that Buxal was caused injuries by the appellant which were intended for Piaro. The appellant has also admitted having caused injuries in self-defence.

6. The main point then is whether the appellant caused injuries to Buxal in self‑defence. The circumstance relied upon by the appellant in support of his theory is that the appellant had the following injuries on his person: "(1) An incised wound 3" x 1" x 2" fracture of the head humars of left arm. (2) An incised wound 1 " x 1/2" x 1" on the left side arm below, the injury No. 1. (3) An incised wound 1 " x 1" x 1" on the outer side of the left chest. (4) An incised wound 1" x " and 1" on the left arm below injury No. 1. (5) An incised wound 6" x 1" x 1" with fracture of the humars at the upper end transversely below injury No. 1. (6) An incised wound 2" x 1/2" x " on the inner side of the left arm. (7) An incised wound 2 x " x " on the back of the, neck with fracture of spine of the 6th survical vertibra."

7. The evidence of Mst. Waziran and P. W. 1 Piaro and P. W. 2, Abdul Hamid Zamindar discloses that Waziran had been enticed away by appellant Gahi and had been restored at the suggestion of Abdul Hamid Zamindar. She had been taken by Piaro and left that day 16 miles away in Kakar Taluka. There is no evidence that Piaro or Buxal knew that the appellant would pass that way so as to lie in ambush for him. The evidence, however, shows that both parties had grievances against each other. The appellant had the grievance that he had been deprived of his love Mst. Waziran by the complainant's party through their Zamindar P. W. 2 Abdul Hamid. Piaro had the grievance against the appellant in as much as he had enticed away Mst. Waziran his maternal uncle's wife. It is true that neither Piaro nor Buxal spoke of injuries given to the appellant. This is because both Piaro and Buxal were accused persons in the counter‑case and naturally would not involve themselves by admission on the point. P. W. 6 Shah Muhammad has been examined. He is Mashir for the places of incident in both the cases. He was not shown in either case the place where it is alleged the accused in the two places had ambushed themselves. The Mashirnama in the case of the appellant is Exh. 16, and that against him is Exh.

15. The omission in the two respective Mashirnamas about the place of ambush is a clear indication that there was no ambush in either case and it was a free fight between the two patties outside the village on meeting each other at about half a call distance away from the village. The theory of self‑defence is also negativated by the injuries on the person of the appellant gas well as Buxal. Both bore such serious injuries that after receiving them each of them would be incapable of6 causing any further injury on the other. In other words injuries caused by the parties to each other were not caused in self-defence but were caused during the course of a free fight between themselves. The burden of proving the right of self‑defence is on the person who set it up as is provided by section 105 of the Evidence Act. The Courts will, however, give benefit of this right to an accused person if there are circumstances on the record from which exercise of such a right can be inferred. There are no such circumstances in this case. The time of occurrence given in the two counter first reports Exh. 5 and Exh. 7 is the same, i.e., Somani time. There is sufficient reliable evidence for the conviction of the appellant and his appeal is dismissed. K. B. A. Appeal dismissed.