1. MUHAMMAD AFZAL ZULLAH, J.-This petition for leave to appeal filed by a complainant calls in question the dismissal of an acquittal appeal preferred by the State in a case under section 304/34 of the Pakistan Penal Code.
2. The petitioner had reported against 18 persons for the alleged murder of his brother, named Syed Ibrahim Shah and injuries to the eye-witnesses. Only five of them were committed to stand trial. On a subsequent application filed by the petitioner the learned Sessions Court directed the committal of five more. All the 10 persons now respondents in this petition were tried and acquitted by the learned Sessions Judge, Quetta on 15th February 1975. The State filed appeal against acquittal which having been dismissed, the petitioner has filed this petition for special leave to appeal against the same 10 persons, who stood the trial. It may be straight--away mentioned that the discharge of the remaining 8 persons who obviously were declared innocent was not challenged by the State in the High Court nor has it now been challenged through this petition, Both the parties belonged to the same village, named Nascozai. They own lands therein which are irrigated by a common watercourse known as Ulsi Viala. The petitioner's side wanted to supplement the irrigation facility through Ulsi Viala by digging a tube-well of their own with the intention that they would on their turn mix the water of the tube-well in the water of Ulsi Viala and thus augument the volume thereof for irrigating their land. Although the petitioner's claim is that the tube-well having been constructed and put to the above use about three years prior to the date of occurrence (29-6-1967), the defence, however, denied this allegation and asserted that it was on the said date that the complainant party wanted to use Ulsi Viala a common watercourse for carrying water from their tube-well to their lands. The latter version has been accepted by the learned trial Court as also the High Court. The prosecution version about the occurrence is that on account of a warning given to the complain--ant party on 28th of June 1967, to the effect that they should not utilise Ulsi Viala for their tube-well water, the accused party, 18 in number, variously armed attacked the complainant party in their land and while causing the death of one of them, gave serious injuries to the eye--witnesses.
3. The prosecution led evidence regarding afore described motive through the statements of the complainant, and other witnesses. Five eye-witnesses were produced to give the ocular account of the occurrence. One of them, namely, Noor Muhammad (P. W. 6) was declared hostile. In addition to the above item of evidence, the prosecution examined two Doctors to prove the injuries on the deceased and eye-witnesses. The medical evidence helped also in establishing that five of the accused persons were seriously injured in the same occurrence which is the subject matter in this case.
4. The injured accused in their statements under section 342 of the Criminal Procedure Code asserted that the attack was opened by the complainant party and thus the latter were the aggressors. The motive pact of the prosecution case was met with a parallel version mainly contained in the depositions of the five defence witnesses. The defence version is that the accused side had legitimately objected to the use of Ulsi Viala which was, as admitted from all sides, common property of various parties. It could not be used in any manner other than normal by one of those parties, without the consent of the ocher. The complainant side was not only aware of this objection but also was advised by respectables to seek intervention of the authorities concerned for settling the dispute so much so that the deceased and another were about to get a petition drafted in this behalf when they changed the mind and decided to take the law into their own hands. At the time of occurrence the complainant party wanted to put the tube-well water into the Ulsi Viala through an opening in the compound wall around a piece of land wherein the tube-well had been installed. On effort from the accused side to plug the opening from outside the wall, the complainant party attacked the accused party, that is why several people on both the sides were injured.
5. The learned trial Judge in a detailed and well-considered judgment did not place reliance on the statements of three eye-witnesses, namely, Haider Shah, Mubarak Shah and Syed Gul Muhammad Shah mainly on the ground that they are interested and for stated reasons did not inspire confidence but the learned Judge observed that they did not admit that the accused party received any injury and denied that they themselves were armed with any weapon. About the fourth eye-witness, namely, Syed Ras Muhammad (P. W. 5), the learned Judge observed that he was not a truthful witness and had "only appeared to strengthen the case of his relative". His statement was also properly analysed with the conclusion that "all these facts bring me to this conclusion that this witness has not seen the occurrence and therefore his statement cannot be relied upon". After excluding four eye-witnesses the learned Judge dealt with the testimony of fifth one, namely, Noor Muhammad (P. A'. 6). It has not been denied that the said witness is not related to either party. It is on the other hand admitted that he did see the occurrence. The trial Judge described him as an independent witness. Nothing has been established from the prosecu-- petition side that he had any motive not to tell the truth with regard to either of the two parallel versions of the same occurrence. According to him Muhammad Azam, Saleh Muhammad and Muhammad Azeem of the accused party asked Gul Muhammad of the complainant party not to mix their tube-well water in and take it through the Ulsi Viala. On refusal of Gul Muhammad in this behalf Muhammad Azeem tried to stop the water. At that time the deceased came there, he was armed with a Taberzeen and a handle of pick-axe. He attacked Muhammad Azeem with Taberzeen which hit him on his head. Muhammad Azeem after receiving blow fell in the nullah. Gul Muhammad Shah, Haider Shah and Mubarak Shah came to the spot by scaling the wall and both parties started fighting. Gul Muhammad and his colleagues were armed with Belchas. The learned trial Judge interpreted this part of the statement of Noor Muhammad (P. W. 6) as constituting the complainant party into the aggressors. Keeping in view the fact that the prosecution has failed to prove its motive part, that four eye-witnesses could not be relied upon; and that an independent witness, supported the defence version of the complainant party being aggressors, the learned Judge concluded that the prosecution "has absolutely failed to bring home the charge against the accused". They were, accordingly, acquitted. The learned Division Bench for the High Court while dismissing the acquittal appeal has affirmed all the findings of the learned trial Court.
6. The petitioner appeared in person in support of this petition but did n elaborate the same or state anything in support thereof. He, however, it short and simple statement urged that this Court should do justice in the matter. There are some outstanding general features of this case cannot be ignored. Firstly the accused party suffered greater number of injuries many of diem serious ones, at the hands of the complainant partyincluding the deceased. It is not at all the prosecution case that they suffered any of the injuries in an occurrence other than the subject-matter of this In fact, the complainant party was prosecuted for causing injuries to five persons from. The accused side. One of the offences was 326, P. P. C.Were, however, acquitted on various grounds including technical ones. Despite all this, all the eye-witnesses other than Noor Muhammad would have the Court believe that neither they carried any weapon nor caused any injury to any person from the accused side; secondly although the occurrence is of day time, there are two parallel versions. In the circumstances of the case and in view of the nature of the motive it cannot be accepted That those eye-witnesses who are relations of the deceased or are otherwise interested, will willingly support anything which goes in favour of the accused; thirdly the defence version as discussed in the judgment of the triale Court is not at all an improbable one particularly when the sire of occurrence, the weapons used from both the sides and the results of the blows inflicted on either side are kept in view; fourthly the motiveof the prosecution case is belied by the defence witnesses none of whom can be considered as having any interest in the accused party rather one of them, namely, Haji Marwand (P. W. 5), who even according to the prosecution version could be a prosecution witness, supported the defence version regarding the complainant party having shortly before the occurrencederided to give up the lawful course and tread upon a path of confronta--petition as they wished; fifthly the complainant party had implicated 18 persons atthe F. I. R. Stage and if their conduct directly or through the state--ments is taken into account, up to this petition stage they themselves left out 8 arsons out of 18 initially named as accused. Those 8 persons were not attributed any insignificant role. Even if it be held that the rule of in divisibility of credit of witnesses would not apply in this case, it would here to be keep in view whether in view of the interested nature of the eye-- witness account and there being no other material piece of evidence, same witnesses could be trusted for convicting the remaining accused, that is the10 respondents without corroboration and, lastly one of the eye-- witness cited by the prosecution itself supported the defence version in-- as much as he deposed that the attack was opened in the first instance fret the complainant side on the accused side with serious blows given he deceased with a formidable weapon on the head of Muhammad Azeemaccused-respondent. And although this witness, as mentioned by learned trial Court, was declared hostile, nothing useful to the prosecu--petition was elicited during his cross-examination.
7. If the well-established principles relating to the treatment of challenge to an acquittal after regular and due trial are kept in view, the above feature of this case would be enough to dismiss this petition which seeks to reopen the matter after the dismissal of the acquittal appeal by the High Court. However, short comment on the noticeable points the judgment by the High Court is not as detailed as that of the learned trial Court, yet it cannot be said. As urged in the petition that the learned Judges did not express the opinion of their own on matters urged before them. All the major questions involved in the case received due attention in the High Court judgment. No doubt there is some confusion with regard to the ownership of the place of occurrence as shown in the site plan Exh. P/L. (copy placed on the record 'of this petition), but there is nothing to show that this would make any difference with regard to the major issue in the case as to which party is an aggressor. In the circum--stances of this case, the spot where blood was found and where the general fight took place would not change the true picture as to which party was the aggressor, because a large number of persons being involved from both the sides it cannot be said that the fight would have been pinned down to one spot. It is not the prosecution case, not even from the site plan the accused had gone beyond the wall around the place where the tube-well was installed. The open space outside the wall is also the place of occurrence according to the defence version wherein the protest and stoppage of the tube-well water getting into the Ulsi Viala watercourse would equally fit. It is not correctly urged in ground (iii) of this petition that the accused who admitted participation in the occurrence had not taken the plea of self-defence.
8. Such a plea it cannot be denied can be raised at various stages. In this case the defence plea is contained in the statements of the accused, the suggestions in and trend of cross-examination and the defenc evidence. The plea of self-defence is clearly deducible from all these elements. Not only this the accused party prosecuted the complainant party for having attacked them. All this it cannot be said does not disclose the plea of self-' defence. Moreover it cannot be denied that the prosecution, in the circumstances of this case, had to stand on its own legs. The next point taken that the greater number of injuries and that of the injured on the accused side is not relevant to the plea of self-defence, betrays any ignorance of the various factors which are normally looked into in this behalf. These are undoubtedly relevant factors. With regard to the motive it is not correct to say that the complainant party or any other party having joint rights on the use of Ulsi Viala would not suffer any prejudice by the complainant side mixing tube-well water -in the Ulsi Viala without the consent of the other concerned parties. No explanation worth the name is offered from the complainant side as to why once having decided to get the matter resolved through a lawful manner, they took the risk of ignoring the consent and warning of the other parties. The petitioner cannot grudge the criticism of the statements of the four eye-witnesses, the mere fact that they being relations and partisans of the complainant party were also natural witnesses would nonetheless be not enough to cover up the infirmities in their testimony. Similarly no legitimate criticism can be advanced against the treatment of the deposition of Noor Muhammad (P. W. 6) by the learned trial Court on the mere statement that he was declared as a hostile witness. As discussed by the learned trial Judge the prosecution could not weaken the value of his testimony despite efforts made during his cross-examination. The testimony of this witness (P. W. 6) who is an independent one which has been relied upon by both the Courts below cannot be ignored merely because, as urged in the petition, there was no incised wound on the head of Muhammad Azeem who was given a Taberzeen blow by the deceased. Muhammad Azeem suffered 12 injuries in all.
9. Four of them (lacerated wounds) are on his head. The prosecu--petition did not elicite from the Doctor that these wounds could not be caused by a Taberzeen even if a blow is inflicted with it in any manner. A careful examination of all important questions involved in the case has given rise to a conclusion that the prosecution has failed to establish the charged the accused and, in any case, the prosecution case has not been established beyond all reasonable doubt. This petition fails and is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.