MUKARAM ALIAS MULLA Versus THE STATE Mohammad Hayat Junejo , Imam Bux Sheikh

ORDER

1. The appellant was charged under sections 302, 307, 34, P.P.C and tried before the learned Vth Additional District and Sessions Judge, South Karachi, who has convicted him under sections 302, 307, 34, P.P.C. and sentenced him under section 302, P.P.C to suffer imprisonment for life and to pay fine of Rs.5,000 or in default of payment of fine to undergo further R.I. for six months. Under section 307, P.P.C he has been sentenced to suffer R.I. for five years and to pay fine of Rs.5,000, in default of payment of fine to undergo R.I. for six months. He has also been directed to pay Rs.10,000 as compensation to heirs of deceased Shahid Taj, in default to suffer R.I. for six months more vide Judgment dated 23‑12‑1986.

2. The brief facts of the prosecution case are that on 24‑6‑1985 complainant Taj Mohammad lodged a report which was recorded on a plain paper, inter alia, alleging therein that he is original resident of District Sawat, Barib Kot, Post Office Zarkhela village Chaungi. He is an employee in K.P.T. His younger brother Shahid Taj also resides with his family in a separate house in Bhutta village. Close to them is the 'Dera' of Lajbar Khan. Today at about 4‑00 p.m. he was sitting in his 'Dera', while his brother Shahid Taj was preparing cage for the hens near the 'Dera' in the street, when his son Jawaid aged about 6/7 years came to him crying and told him that Mukaram Baba did not allow him to drink water. His brother Shahid Taj on seeing the child crying also came to him. He and Shahid Taj went to Lajbar Khan near his 'Dera and told Lajbar Khan that Mukaram did not allow their child to drink water from his 'Dera' on which Mukaram who was sitting at the 'dera' of Lajbar came out and told them that he had prohibited Jawaid from drinking water. Shahid Taj told Mukaram "Yazid" had stopped water, and that he (Mukaram) had stopped an innocent from drinking water and that he should be ashamed. On which altercation took place and Noor Karam s/o Mukaram Khan also came there who caught hold of Shahid Tzj. Mukaram Khan took out a knife from his pocket and immediately attacked Shahid Taj and gave him knife blows on his chest. Shahid Taj fell down. The complainant, Bakht‑e‑Bedar and Fahim Taj moved ahead to rescue him, but Mukaram Khan attacked all of them and caused them knife injuries. Noor Karam caught hold of the complainant while Mukaram gave him knife injuries on the front and above the left buttock. Fahim Tai and Bakht‑e‑Bedar were also injured. This incident was witnessed by Lajbar Khan, Bakht‑e‑Zarin, Ibne Amin, Nazar Khan and many others. Shahid Taj died on the spot. All of them then went to the Hospital. The above statement was recorded by Mohammad Suleman Mirza S.H.O. Jackson Police Line Before going to the Hospital and recording the above statement A . S. I Moula Bux handed over information vide entry No.43 to Mohammad Suleman S.H.O. who was on patrol duty. After receipt of the above entry he reached at the place of incident and found that the dead body of Shahid Taj was lying on the cot in front of the 'Dera' of Lajbar Khan. He prepared the inquest report and the same has been produced as Ex.18‑A. In the meantime he received another entry No.45 of daily diary from which it transpired that in the same scuffle the persons who were injured had reached at Civil Hospital. He has produced entry No.45 as Ex.18‑B. He prepared Mashirnama of Wardat in presence of Mashirs and had secured blood‑stained earth from there, the Mashirnama has been produced as Ex.2‑A. From there he sent a letter to the Doctor requesting him to examine the injured persons. He has produced the letter as Ex‑18‑C. He also gave letter to Medical Officer to inform him about the cause of death and the letter has been produced as Ex.18‑D. In the Hospital he had recorded the statement of Taj Mohammad complainant under section 164, Cr.P.C. and the same has been produced as Ex.5‑A. After recording the statement of the complainant he came back to the P.S. and incorporated the same in 154, Cr.P.C. book at 8‑00 p.m. and the same has been produced as Ex.18‑E. He went after the accused but could not trace them. On 26‑6‑85 he arrested accused Mukaram Khan but his son Noor Karam could not be arrested. The Mashirnama of arrest has been produced as Ex.15‑A. He interrogated the accused who led Police and the Mashirs to his house and produced blood‑stained clothes which were secured by S.H.O. under Mashirnama. The accused had injury on his head and, therefore, he referred him to Civil Hospital for medical treatment. On 6th and 7th of July, 1985 he got the statements of PWs recorded under section 164, Cr.P.C. before a Magistrate. Thereafter, he completed the investigation and submitted the challan before the Court, co‑accused Noor Karam was shown as absconder.

3. A formal charge was framed against the present appellant to which he pleaded not guilty.

4. At the trial prosecution examined complainant PW‑1, he has produced his statement recorded under section 154, Cr. P. C . as Ex.5‑A, Fahim Taj PW‑2, Bakht‑e‑Bedar PW‑3, he has produced the statement under section 164, Cr.P.C as Ex.7‑A, Ibne Amin PW‑4, he has produced his statement under section 164, Cr.P.C as Ex.8‑A, Nazar Khan PW‑5, he has produced his 164, Cr.P.C. statement as Ex.10‑A, Ali Mohammad PW‑6, he has produced his 164, Cr.P.C statement as Ex.11‑A, Mashir Abdul Mastan PW‑7 he has produced the memo of Wardat as Ex.12‑A, Bakht‑e‑Zarin PW‑8, he has, produced his statement under section 164, Cr.P.C as Ex.13‑A, Lajbar Khan PW‑9, Mashir Malik PW‑10, he has produced the Mashirnam'a of arrest of accused and production of blood‑stained clothes as Ex.15‑A, P.C. Mohammad Aslam PW‑11, Moula Bux PW‑12 he has produced the extract of entry No.43 dated 24‑6‑1984 of daily diary PS Jackson as Ex.17‑A, S.H.O. Mohammad Suleman Mirza PW‑13, Investigating Officer and the investigation carried on by him mentioned supra, Dr. Ghulam Mohammad, PW‑14, he has produced post‑mortem report as Ex .19‑A and injury certificates of injured Fahim Taj, Bakht‑e‑Bedar and Taj Mohammad as Exs.19‑G to, 19‑D and final reports as Exs.19‑E to Ex.19‑G. The chemical report was brought on record through the application of APP, the application is Ex.21 while the chemical report has been produced as Ex.22.

5. After close of the prosecution case, the statement of appellant was recorded in which he denied the allegation and took the plea of right of private defence. He examined himself on oath as envisaged by section 340(2), Cr.P.C and also examined Dr. Hamid Ali DW‑2, he has produced medical certificates as Exs.25‑A and 24‑B.

6. The learned trial Judge while relying upon the above evidence produced by the prosecution has convicted and sentenced the appellant as described above. The present appeal is directed against the above judgment of conviction.

7. Complainant Taj Mohammad PW‑1 has supported the contents of his statement recorded under section 164, Cr.P.C e1ccept the fact that his brother Shahid Taj had told Mukaram that "Yazid" had stopped water and that he (Mukaram) had stopped an innocent from drinking water and that he should be ashamed. He has produced the statement as Ex.5‑A. In cross‑examination he has deposed that his house is situated at the distance of about 100 paces from the house of Lajbar Khan. The house of deceased Shahid Taj was situated about 100 paces away from his house while the house of accused was situated about 100 paces away from the house of Shahid Taj. He denied that he had abused accused Mukaram, and also his wife. He also denied that he, deceased Shahid Taj, Fahim Taj and Bakht‑e‑Bedar abused accused Mukaram, attacked him with hammer and Dandas in order to kill him. He denied a suggestion that Shahid Taj had a hammer in his hand. He also denied that he was armed with a Danda and gave danda blows to accused Mukaram. He also denied that Fahim Taj and Bakht‑e‑Bedar had also given blows to Mukaram. He denied to have stated in his statement under section 164, Cr.P.C that deceased Shahid Taj had told Mukaram that you did not allow the boy to take water as it was done by 'Yazid' and you should be ashamed of it. PW Bakht‑e‑Bedar was his cousin, while Fahim Taj was son of his sister. PW Bakht‑e‑Bedar and Fahim Taj had arrived at the spot after his arrival and accused gave them knife blows while he was running away after causing injuries to the deceased and the complainant.

8. Fahim Taj PW‑2 has deposed that he is residing with his elder brother at Bhutta village Kiamari. Complainant Taj Mohammad and deceased Shahid Taj were his maternal uncles. On 24‑6‑1985 at 4‑00 p.m he was sitting with the complainant at his 'Dera' while Shahid Taj was preparing cage for hens. His rest of the evidence is identical to that of the complainant. He has further deposed that he had also received injuries in the incident and had gone unconscious at the Wardat, and regained senses in the hospital on the next day morning. He remained in the hospital as indoor patient for one month and 10 days. In cross‑examination he had admitted that deceased Shahid Taj had extended naked abuse to the wife of accused Mukaram. That some verbal quarrel had preceded of receipt of injury at the hands of accused. He denied that accused Mukaram tried to run away from the spot after seeing them armed in order to save his life. He denied that deceased, complainant Bakht‑e‑Bedar and he had given danda and hammer blows to accused Mukaram. He denied that accused Mukaram had tried to save his life, in fact accused caused injuries to them and ran away from the spot. About 40/50 persons had gathered at the spot including Lajbar Khan. He denied to have stated before police that deceased Shahid Taj had told accused Mukaram that he had refused to give water as was done by 'Yazid', for which he should be ashamed. He denied to have stated before Police that Shahid Taj had a hammer in his hand. However, the above contradiction have been proved from the deposition of Investigation Officer.

9. Bakht‑e‑Bedar PW‑3 has given identical evidence to that of the complainant. He has further deposed that he was also injured by accused Mukaram while Fahim Taj was injured by Noor Karam. He remained in hospital for seven days. He had received knife injury on his back. In cross‑examination he has deposed that he had not stated in his 164, Cr.P.C statement that he had received knife blow at the hands of accused Mukaram when he was coming from his job and had reached at Katchi Gall, there is note from the Court that he had stated so. He denied to have stated in 164, Cr. P. C . statement that he did not know as to how and when injured Fahim Taj had received injuries, there is note from the Court that he had stated so in his 164, Cr. P . C . statement. He denied to have stated in 164, Cr. P . C . statement as to how and when deceased Shahid Taj received injuries with the knife at the hands of accused Mukaram. Note: He has stated in his examination‑in‑chief that at the time when his statement under section 164, Cr.P.C. was recorded he was not feeling well. He denied to have stated in his 164, Cr. P. C . statement that Shahid Taj told Mukaram that you have acted like 'Yazid' by refusing water to the boy. He denied that deceased Shahid Taj was armed with hammer. He denied to have stated so before police. He has denied that deceased Shahid Taj gave hammer blow, while he, complainant and P.Ws. gave Danda blows to accused Mukaram. However, his 164, Cr.P.C. statement does not show that he had seen accused Mukaram causing injuries to the deceased.

10. Ibne Amin P.W.4 has deposed that he had Karyana shop at Bhutta village which is situated at the distance of IQ/15 paces from 'Dera' of Lajbar Khan. On the day of incident he was sitting on his shop. He saw accused Mukaram, complainant Taj Mohammad and deceased Shahid Taj were abusing each other. He went there and tried to pacify the parties. Thereafter, he brought the complainant to his 'Dera' whereas deceased Shahid Taj started preparing the cage for the hens. He was leaving his shop as he had work with some person, meantime accused, complainant and deceased Shahid Taj again started abusing each other. He again went at the spot and saw Shahid Taj lying on the ground. One Shams Feroze was present there, who asked him to bring Suzuki Van and found that Shahid Taj had died. He went to the Police Station Jackson for reporting to the police on the same Suzuki Van. Shams Feroze was with him when he went to P.S. He reported to the police that Shahid Taj had died due to fight. While he was sitting at P.S. Bakht‑e‑Bedar, and Fahim Taj also came there in Rikshaw, they were injured. Police came at the spot and he pointed out the house of the accused to the police when the police visited the place of incident and took the dead body to the hospital. He did not know the cause of fight between the accused and the deceased. He was, however, declared as hostile and cross‑examined by A.P.P. with the permission of the Court. He has admitted that he was examined before a Magistrate under section 164, Cr.P.C. He had stated before the Magistrate that he heard commotion and saw that both were fighting with each other. He had stated before the Magistrate that he had seen accused Mukaram while he was giving knife blows to deceased Shahid Taj as a result of which he fell down. He had stated before the Magistrate that many persons had gathered at the Wardat. He denied a suggestion that he was obliging the accused that he was won over by the accused. He did not see Noor Karam son of accused Mukaram at the spot. He had not seen the accused giving knife blow to deceased Shahid Taj, in fact he had seen the deceased when he was lying injured on the ground. In cross‑examination by the defence counsel he has admitted that he and the complainant were originally residents of same village at Sawat. He admitted that he had come before a Magistrate alongwith complainant party for getting his 164, Cr.P.C. statement recorded. He admitted that he had stated the fact of causing knife to deceased Shahid Tai before the Magistrate at the instance of complainant Taj Mohammad. He had not seen any hammer in the hand of deceased Shahid Tai during the fight. He denied to have stated before the police that at the time of fight Shahid Taj had hammer in his hand. He did not see deceased Shahid Taj and Taj Mohammad complainant giving hammer and Danda blows to the accused nor he saw the blood coming out from the head of the accused Mukaram.

11. Nazeer Khan P.W.5 has deposed that about 11 months back at 4/5 p.m. he was sitting in the shop of Shirin Barbar and was leaving for his house when he heard commotion and saw that accused Mukaram, his son Noor Karam, Bakht‑e‑Bedar, complainant Taj Mohammad and deceased Shahid Taj were fighting with each other. He went there and saw that Shahid Taj was lying, on the ground, he took him to Civil Hospital where, he died due to injuries. His statement under section 164, Cr.P.C. was recorded which he has produced as Exh.10‑A. In cross‑examination he has deposed that about 40 persons had gathered at the spot when he arrived there. He did not see the fight.

12. Ali Mohammad P.W.6 has deposed that on 24‑6‑1985 at 4‑00 p.m. he was sitting at his shop, at that time the deceased was preparing the cage for hens. There is a 'Dera' of one Jamadar situated in front of his shop and same belongs to a 'Pathan'. He heard some commotion and the abuses in Pashto language from the 'Deral of that Jamadar. Some people started collecting there at the 'Dera? and the deceased who was sitting in front of his shop went inside the 'Dera? and thereafter returned back as the commotion of abuses had subsided. After some time again altercation started, he saw 40/50 persons available at the spot. Out of them the deceased came out with injuries on his person and fell down in front of his shop. He closed his shop. There was altercation in between the accused present in the Court and the deceased but he did not see the accused giving any blow to the deceased. In cross‑examination he has deposed that his statement under section 164, Cr.P.C. was recorded, and the same has been produced by him as Exh.11‑A. According to him, he had stated in his statement under section 164, Cr.P.C. that 'he had seen the accused and deceased fighting'. There is note from the Court (confronted 'not so stated). He had seen the deceased with hammer in his hand when he was going to fight with the accused.

13. Mashir Abdul Mastan P.W.7 has deposed that he was made Mashir of Wardat, dead body was lying there. Police secured blood?stained earth and prepared such Mashirnama. He has produced the same as Exh.12/A.

14. Bakht‑e‑Zarin P.W.8 has deposed that he is serving in K.P.T. for the last 22/23 years. He and accused Mukaram were residing in same village: On 24‑6‑1985 at about 4‑00 p. m. he alongwith Lajbar Khan and accused were sitting at the Dera of Jamadar Lajbar while they were sitting, deceased Shahid Taj sent a boy namely Jawaid to bring water. The boy asked for water, the accused Mukaram retorted that his father should keep his own earthen pot for water. After that the boy went back and informed deceased that accused Mukaram did not allow to take water. Deceased Shahid Taj also retorted that 'Yazid' had refused water but no other can refuse to give water. After that there was verbal altercation between the deceased and accused. They separated both of them. While he had moved 2/3 paces he again heard commotion and altercation between accused and deceased, in the meantime he turned towards them and saw that Shahid Taj was lying on the ground. When he saw the blood where injured had fallen he went unconscious. His statement was recorded by the police. His 164, Cr.P.C. statement was also recorded which he has produced as Exh.13‑A. In cross‑examination he has deposed that he saw the parties when the accused and deceased were abusing each other. He admitted that Taj Mohammad was also busy in altercation. He did not see Lajbar Khan taking P.W. Taj Mohammad out of his 'Dera? in order to pacify the parties. He did not remember if he has stated in 164, Cr.P.C. statement that after a while P.W. Taj Mohammad came at the 'Deral and took Lajbar Khan outside the 'Dera'. There is note from the Court (confronted so stated). He denied to have stated before the Magistrate that in the meanwhile deceased Shahid Taj came there and asked the accused that 'Yazid' only had disallowed water. There is note from the Court that he had stated so.

15. Lajbar Khan has deposed that he knows accused Mulla Mukaram. About one year back about 4 days after Ramzan Eid accused Mukaram was sitting at his 'Deral at 4‑00 p.m. Shahid Taj sent his boy for water, because Shahid Taj had no water in his 'Dera'. Mukaram told the boy to arrange their own water and do not disturb them for water. He (witness) provided water to the boy and Shahid Taj drank. Thereafter, Shahid Taj came to his 'Dera? and directly went to the Jar of water and drank the water. Thereafter, while he was going back he told him please do not be angry on the demand of water as it is within the principles of Islam. On which Mukaram told Shahid Taj that he should arrange his own water in his 'Deral and should not disturb them. Again Shahid Taj sent son of Mira Khan to his Dera for water but Mukaram refused. At that time he was at his house. When he came back to his 'Dera? accused Mukaram informed him that Taj Mohammad had called him but Mukaram did not allow him to go there and told him that Taj Mohammad should come himself to our 'Dera'. But he went to the 'Dera of Taj Mohammad who told him as to why the water was refused. He replied that he did not refuse the water, it was Mukaram who had told to boy to arrange the water. At that time Taj Mohammad came to his 'Dera? and abused Mukarqim in the name of his wife and wife of his son. In return accused also abused Taj Mohammad in the same way. Shahid Taj came there with hammer and gave hammer blow on the head of accused Mukaram. and Taj Muhammad also gave Danda blow on the head of Mukaram. He witnessed the same. He separated the parties and sent back Taj Mohammad and Shahid Taj to their 'Dera'. He went inside his 'Dera'. When he was at his house he heard some commotion from outside, he went outside of his 'Dera? and saw that Shahid Taj was lying on the ground, he had knife injury and was bleeding. Taj Mohammad was also injured and was lying in front of the shop of Koka. He and Taj Mohammad took Shahid Taj to the Hospital. He remained in the Hospital till post‑mortem was carried on and again at 8‑00 p.m. he came back alongwith Taj Mohammad. His statements were recorded by the police and by the Magistrate. In cross‑examination he has deposed that he did not see any blood oozing out from the head of accused Mukaram when he received hammer and Danda blows. He did not see Noor Karam son of accused Mukaram at the spot. Accused Mukaram was wearing cap on his head when he received blows. The accused Mukaram was 'Pesh Imam' in this mosque at different times.

16. Mashir Malik P.W.10 has deposed that accused was not arrested in his presence nor any clothes were secured from him in his presence. When he went to the P.S. with P.W. Taj Mohammad he was informed by a police officer that they had recovered clothes. At that time accused Mukaram was in police lock‑up. In cross‑examination he has deposed that he had seen Mukaram in the lock‑up of police with his own eyes. He had bandage on his head.

17. A.S.I.P. Moula Bux P.W.12 has deposed that on 24‑6‑1985 he was posted as A.S.I.P. at P.S. Jackson. On that day he was Duty Officer on duty from 2‑00 p.m. to 8‑00 p.m. At about 5‑00 p.m. an unknown person informed him on telephone that there had been a quarrel between two parties in Bhutta village in which a man had died. He entered the information in daily diary' at Serial No. 43. He alongwith Head Constable Wall Bahadur were going at the place of incident but on the way S.H.O. Suleman Mirza met them who also accompanied them to the place of incident and found a dead body lying there. He handed over investigation to the S.H.O. Suleman Mirza. He has produced entry No. 43 as Exh.17‑A. In cross‑examination he has deposed that S.H.O. had met him near Jamia Masjid Jackson Bazar. He denied that before recording report some of the witnesses including Lajbar Khan had contacted him. He did not remember how many persons were examined at the place of incident. The recoveries were made by Inspector Suleman Mirza and he could only say that blood‑stained earth was recovered from the place of Wardat.

18. S.H.O. Suleman Mirza P.W.13 has deposed that on 24‑6‑1985 he was posted as S . H .0. at P . S . Jackson. The remaining investigation carried on by him has been referred in the earlier part of this judgment. In cross‑examination he has deposed that the accused was arrested from the end of Nissan Road. The house of accused was situated at the distance of one or two furlongs away from the place of his arrest. He prepared one Mashirnama for the arrest and seizure of blood‑stained clothes he prepared the same at the house of accused. He denied that accused had surrendered himself at P.S. He admitted a suggestion that accused had injuries on his head and other parts of his body, when he was arrested. It was a fact that P.W. Fahim Taj had stated in his statement under section 164, Cr.P.C. that there was a quarrel between the parties and exchange of abuses. He had further stated in his statement before him that deceased Shahid Taj had hammer in his hand. P.W. Ibne Amin had stated before police that deceased Shahid Taj had hammer in his hand. He did not make any recovery of weapon from the accused though he was in police custody for about 14 days. During the investigation it was not disclosed before him that complainant Taj Mohammad was also armed with Danda.

19. Dr. Ghulam Muhammad P.W.14 had conducted the post‑mortem on dead body of Shahid Taj and he found that there was one stab wound 1" x ?" on the upper half left side chest. In his opinion the cause of death was Cardio Respiratory failure due to shock and internal haemorrhage resulting from stab wound in left side chest and heart. The injury appeared to have been caused with some sharp‑edged substance such as Chhuri or big knife.

20. He had also examined P.W. Fahim Taj on the same day and found one incised wound and one contusion on the person. The injury No. 1 was grievous while injury No. 2 was simple. He had also examined. P.W. Bakht‑e‑Bedar and found one incised wound and one contusion on his person. The injuries were simple in nature. He had also examined complainant Taj Mohammad who had one incised injury which was simple in nature. He has produced post‑mortem report as Exh.19‑A and the initial as well as final‑injury certificates as Ex. 19‑B to Ex.19‑G.

21. The chemical report was produced by the learned A.P.P. alongwith application Ex.21 and the chemical report as Ex.22.

22. After close of the prosecution case statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations. He has further stated that deceased, complainant and other P.Ws. had attacked him in order to murder him. They had also abused him in the name of his wife. He had defended himself in his own right. He also examined himself on oath as envisaged by section 340(2), Cr.P.C. He has also examined Dr. Hamid Ali D.W.2 in his defence. According to Dr. Hamid Ali accused Mukaram was referred to him by Jackson Police for examination and certificate on 26‑6‑1985 at 2‑20 a.m. He examined the accused and found five injuries on his person caused by blunt substance., The injuries were simple in nature and the medical certificate alongwith photocopy of supplementary certificate have been produced as Exs.25‑A and 25‑B.

23. The learned trial Judge after taking into consideration the evidence laid by the prosecution as well as by the defence convicted the appellant as described above. The present appeal is directed against the said judgment of conviction.

24. I have heard Mr. Mohammad Hayat Junejo, Advocate for the appellant, Mr. Imam Bux Sheikh, Advocate for the State and have gone through the R&P of the case.

25. It was contended by the learned counsel for the appellant that the fight was sudden and the appellant had no motive to kill deceased Shahid Taj. It was the complainant party who had motive and in fact they had attacked the accused /appellant with a hammer and Danda and caused injuries on head and other parts of his body. That the prosecution has failed to explain the injuries received by the appellant and on the contrary they had suppressed this aspect of the case. That looking to 'the circumstances of the case, the appellant had complete right of private defence of his person and, therefore, the learned trial Jud a had erred in convicting the appellant.

26. The learned counsel for the State has contended that the complainant and P. Ws. have suppressed the injuries caused. to the appellant. That the case of the appellant is supported by a Medical Officer Dr. Hamid Ali and, therefore, the appellant was liable to acquittal.

27. I have considered the contentions of the learned counsel. The prosecution case itself shows that: he complainant party had a motive to attack the accused/ appellant a he had refused to allow Jawaid son of deceased Shahid Taj to water from the 'Dera' of Lajbar Khan, whereas the appellant had no motive to attack the complainant party. It is also an admitted post on that the complainant party had abused the appellant on his wife and there was exchange of hot words between the parties. The appellant had received as many as five injuries out of which two are on his head. P.W. Lajbar Khan has fully supported the case of the appellant in his examination‑in‑chief and he was neither declared hostile nor cross‑examined by the prosecution. Even it was admitted by Mashir Malik P.W. 10 that when he had seen appellant Mukaram in lock‑up at P.S. he had bandage on his head. S.H.O. Mohammad Suleman Mirza, Investigating Officer has I also stated in examination‑in‑chief that when he arrested the accused on 26‑6‑1985 he had injury on his head and, therefore, he had referred the accused to Medical Officer for treatment anti 'certificate. Complainant Taj Mohammad is brother of deceased Shah Taj, P.W. Fahim Taj is sister's son of the complainant and deceased while P.W. Bakht‑e‑Bedar is cousin of the complainant. The complainant and other witnesses have failed to explain the injuries received by the appellant. Even when they were cross‑examined on this point they denied to have caused injuries to the appellant. P . Ws. Fahim Taj and Ibne Amin had stated in their 161, Cr.P.C. statements that deceased Shahid Taj had hammer in his hand but in the Court they denied to have made such statement, and the same has been proved through S.H.O. Mohammad Suleman Mirza. The accused has taken the plea of right of private defence of person in his statement. In the case of Ghazi and another v. The State P L D 1965 (W.P.) Quetta 33 it was observed that:‑--

28. "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 for 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)."

29. In the case of Ramzan v. The State P L D 1961 (W.P.) Kar. 374 it was observed by a Division Bench of this Court that:‑---

30. "Upon a fair appraisal of how the incident took place, it must be held that the Lathi blows which were inflicted upon the back of the appellant must have been inflicted before he gave the fatal blow to Sharif. That in the circumstances the appellant would reasonably have an apprehension that grievous hurt would be caused to him, could be a reasonable inference. He would, therefore, have a right of private defence of body, which could extend to the voluntary causing of death."

31. In the case of Inayatullah and another v. The State P L D 1966 (W.P.) Lah. 8 it was observed that:‑---

32. "It would be wrong in principle to hold that merely because the complainant party suffered greater number of injuries than those suffered by accused not sufficient to hold accused as aggressor. Prosecution falling to explain injuries on person of accused, such omission makes prosecution version highly doubtful and lends support to accused's plea of self‑defence."

33. It was further observed in the a e decision that:‑---

34. "That Courts have always viewed with indulgence the act of a person who in the heat o the moment under a strong feeling of self‑preservation working on him pursues his defence a little further than is absolutely necessary. It has often been said that the right of private defence cannot be weighed in golden scales."

35. In the case of Ahmed Din v. Faiz Ahmed and 2 others 1972 SCMR 549 it was observed by their Lordships of the Supreme Court that:‑---

36. "The mere fact that the deceased received three injuries whereas accused got only one, does not by itself show that accused had exceeded the right of self‑defence. His right to defend himself continued as long he had reasonable apprehension of harm from his adversary. It is well‑recognized that the right of self‑defence cannot be modulated step by step nor it can be measured in golden scales."

37. In the case of Nadeem‑ul‑Haq and others v. The State 1985 SCMR 510 it was observed by their Lordships of the Supreme Court that in case of two versions principle recognised in P L D 1953 FC 93 to be applied that:‑----

38. "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 an 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 true, it is clear that such view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."

39. From the above discussion I am of the considered view that the complainant and deceased had a motive to attack the accused/ appellant, they have failed to explain injuries on the person of the appellant and the defence of the appellant is plausible and, therefore, it makes the prosecution case against him doubtful. The appellant had not exceeded the right of private defence of his person looking to the circumstances of the case, and, therefore, I allow this appeal, set aside conviction and sentence of the appellant and he is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case.

40. I had decided the above appeal on 6‑7‑1987 by a short order and these are the reasons for the same.

41. M.Y.H,/M‑382/K ??????????????????????????????????????????????????????????????????? Appeal allowed. ??????????