1. HAMOODUR RAHMAN, C. J.-These two appeals by special leave arise out of the same judgment of a Division Bench of the High Court of East Pakistan by which two appeals against convictions recorded in two criminal cases arising out of the same incident and a revision against the acquittal of some of the accused were analogously heard and disposed of.
2. The incident occurred on the 15th July 1962, in or near `J. L. No. 73 of Union Council No: 8 of Mitragaon village within Police Station Chhatak in the District of Sylhet. In respect of this incident two prosecutions were launched, the first on the basis of a First Information Report lodged by one Mafir Ali on the same day at 7 p.m. At Chhatak Police Station, charging the appellant Wazid Ali Moral, his son, two of his brothers, two of his nephews and some 15 others, with offences under sections 148, 302 and-324 of the Pakistan Penal Code.
3. According to this report the incident took place at about noon, over the cutting of the village gopat (cattle track) running East to West and adjoining the lands of the said Wazid Ali Moral on the north.
4. Mafiz Ali, the complainant, alleged that when they saw Wazid Moral and his companions cutting earth from the public path, he and his paternal cousin Asaddar Ali "appeared there and put obstructions" to such wrongful acts of Wazid Ali and his companions. At this Wazid Ali picked up a jatba (spear) from under the mud and inflicted a thrust blow on the left of nipple of Asaddar Ali and called upon his companions to assault them. As soon as he had said this, his companions picked up different kinds of weapons including lathi, jatha and sulfi (spear) from the mud. At this stage, on hearing the cries raised by the complainant and his cousin, their supporters also appeared on the scene but they too were beaten up by Wazid Moral and his companions with the result that 12 of them, includ--ing the complainant and his cousin, received injuries at their hands.
5. After the incident .The injured were placed in a boat and brought to Chhatak but on the way Asaddar died. The rest were taken to the hospital where Kalandar, who had been dealt a sulfi blow on the belly by accused Ashid Ali, was admitted into hospital and his statement was got recorded by the Sub-Registrar of Chhatak as his condition was considered to be precarious.
6. It appears from the medical evidence of. Dr. Sonabar Ali (P. W. 19) that 'the injured were examined at the Chhatak Government Thana Dispensary at 2-30 p.m. Of the 15th July1962. The complainant Mafiz had two punctured one on the left side of the back and the other on side of the throat, both caused by a pointed weapon thick with a 4 edged blade. He had also another abrasion with a swelling on the bridge of his nose, which was caused by a blunt weapon.Firoz Ali had two punctured wounds on the right thigh and the left side of the back, both 2-- deep and 3/4" in diameter. He also had a perforated wound from the front to the back side at the upper part of his left arm, 1/6" in diameter, which appeared to be caused by a round pointed weapon 3/4" thick. The punctured wound appeared to have been caused by the same kind of weapon by which injuries were inflicted on Mafiz. The medical officer on this day also examined Shariatullah, Mafiz Ali, Kalandar, Alkas Ali, Samad Ali, Jahur Ali, Eusuf Ali and Abdul Aziz. Of these all except Eusuf and Kalandar had punctured wounds. Kalandar had a perforated wound in the chest cavity with injuries to his pericardium and left lung, which appeared again to have been caused by a weapon 3/4' thick and having a edged blade. Eusuf had only blunt weapon injuries. The doctor also confirmed that as Kalandar's condi--tion was found to be precarious, his statement was recorded by the Sub-Registrar, Chhatak in his presence and he attested that statement.
7. In the course of investigation of this case the O. C. Of Chhatak visited the place of the incident at 6 a.m. On the, 16th July 1962. He found most of the cattle track under water but a portion of it which was not under water was found cut to the contiguous north of the southern land up to a length of about 30 cubits to the extent of 1--" cubits in width. He also found many foot-prints on the track as also on the land on its southern side and the path leading there from to the house of Wazid Ali. The house of Wazid Ali is situated on the South West of the track. On the path leading to the house of Wazid Ali the investigating officer also found broken bamboo pieces, boulders, jhatas, grass plants, and jute plants in a broken and disturbed condition. The Eastern fencing of the dwelling huts to the South West of the gopat (track) were also found to have been damaged.
8. He actually seized some boulders, some broken jute plants, one broken-pointed bamboo (kucha- shala), one sub without a handle and a broken lathi. No blood marks were, however, found by him as there had been much rain in the night between the 15th and the 16th July 1962.
9. In cross-examination it was further elicited from him that he had not found the cattle track actually cut but he had found earth freshly thrown on a portion thereof and this had led him to surmise that that portion had been cut. He had, accordingly, shown this portion on the map prepared by him by cross marks. He also explained that he had been led to had taken place between the complainant party at that time. Indeed this part of the incident was completely suppressed and Mafiz Ali in his evidence also denied that he or his companions had any kind of weapons with them, or that they had wounded Wazid Ali or Ashid or any one else although he did admit in cross-examination that when the incident took place, 12 or 13 persons were present thereon his side and Asaddar Ali was wounded some half an hour after they reached the place of incident. As to what happened during this half hour nothing was said.
10. In respect of the same incident Wazid Ali lodged a complaint in the Court of the Sub-Divisional Officer, Suna mganj, accusing Moulvi Fazal Karim, Mafiz Ali, the informant in the case against him and 27 other persons, of having, committed rioting armed with dangerous weapons and thereby caused injuries to him and five of his companions at about 3 p.m. Of the 15th July 1962, According to Wazid Ali the said Moulvi Fazal Karim and some people of the villages of Harishpur, Hatilapara, Muktirgaon, Mitragaon and Nansiri had a dispute with him for some time past over his land situated to the immediate south of the cattle - track. They had in fact instituted a civil suit in which Suruj Ali and some others were the plaintiff's for claiming a fictitious right of passage for their boats through the said land. In this suit, after alt order for local investigation had been made, the accused party were trying to create evidence by forcibly making a boat-plying passage through the said land. Upon his lodging information at the police station about this illegal act and then taking the pleader-commissioner to see the real position with the permis--sion of the civil Court, the said accused party had become very angry and had decided to forcibly dispossess him from his lands by preventing him from cultivating them. It is for this reason that when he cultivated some portion of his said land on the 15th July 1962, the accused party under the leadership of the said Moulvi Fazal Karim came there armed with lathi, sub, brick-bats and other deadly weapons, tres-- passed within the boundaries of his house and began to damage the jute plants standing on a piece of land adjacent thereto. When lie, his brother -Ashid Ali and his son Abdun Nur protested, the accused assaulted them severely with their weapons. Makram Ali, Liaquat Ali and Sirajuddm who came to save them, were also assaulted and injured. They got their injuries examined by the Government doctor and after obtaining a medical certificate went to a Mukhtear of Chhatak Court and got a petition of complaint drafted and filed on the 17th July 1962, before' the Sub-Divisional Officer, Sunamgunj.
11. This petition of complaint was sent by the Sub-Divisional Officer to the O. C. Chhatak for being treated as an F.
1. R. And investigation taken up: In this petition of complaint even - the deceased Asaddar was made an accused but nothing, was said about the injuries on as many as 12 of the accused.
12. The order of the Sub--Divisional Officer was received by the O. C. Chhatak on the 26th July 1962. At 5 p.m. And according to the direction therein the O. C. Drew up the formal F. I. R. And started investigation. He again visited the locality on the 27th July 1962, and submitted a charge--shcet against Moulvi Fazal Krim and 23 others under sec--tions 148/323/324/326 and 326/109 of the Pakistan Penal Code.
13. In this case the investigation officer substantially support--ed' the allegations of Wazid Ali. He admitted that in April 1962, before the occurrence, he had issued warning notices to both parties not to cause any breach of peace and that he had subsequently also given evidence in the civil suit brought by Suruj and others against Wajid and others.
14. It was obtained from him in cross-examination that even before receiving the complaint of Wazid Ali lie had examined Wazid Ali and some of his injured witnesses at the police station on the 23rd July 1962, without arresting them in the earlier case for the murder of Asaddar Ali, filed against them- by Mafiz.
15. It was suggested to him that all the policemen in his police station were hostile to Moatvi Fazal Karim, because, at the 'latter's instance one Khurshid Alam, a second officer of Chhatak Police Station had actually been trapped in a bribery case. The officer denied this suggestion and std that the said Khurshid Alam had been transferred from the Chhatak Police Station in November 1961, and the corruption case against him was still pending in the Court of the Special Judge.
16. Another important fact which was obtained from him in cross-examination was that one of the witnesses had admitted before him that there was a mar pit between the rival parties from the gopat (cattle track) and the jute lands to the East of Wazid's house.
17. The evidence of Dr. Hatem Ali established that on the 16th July 1962, at 4-10 p.m. He had examined Wazid Ali, his son Abdun Nur, Liaquat, Makram Ali, Sirajuddin and Ashid Ali. Injuries found on them were punctured wounds as well as swellings caused by both sharp-edged and blunt weapons. Of all the injuries only one on Makram was grievous. The other injuries were simple although Liaquat and Makram were also admitted into hospital as indoor patients. The age of all the injuries found- on the injured was about 28 hours. He was also of the opinion that two of the injuries on Wazid Ali could not be fabricated injuries.
18. Both these cases were tried one after the other. The first to be tried was the case started upon the information lodged by Mafiz Ali and the second was the case started on the basis of the complaint filed by Wazid Ali. In the first case the prosecution examined as many as 14 eye-witness--ses but apart from Mafis Ali the story given by the other eye-witnesses was that on hearing a row they came to the gopat and saw the accused persons attacking Mafiz Ali and Asaddar Ali. When they advanced to rescue them, they were also assaulted. The defence case, as disclosed in the petition of complaint filed by Wazid Ali, was' put only to Mafiz Ali but he denied the same. He and his witnesses all maintained that they were totally unarmed and it was the party of Wazid Ali which had arms hidden under the mud. There was, however, considerable discrepancy in the evidence of the prosecution witnesses with regard to the manner in which the occurrence started and the place of the occurrence. One witness namely; Kalandar Ali (P. W. 4), who was seriously injured in the belly, however, admitted that when he came to the , spot, he found an altercation going on between Wazid Ali and Ashid on one side and Asaddar Ali and Mafiz Ali on the other side. This explains why, as admitted by Mafiz Ali himself, the alleged assault took place half an hour after he and Asaddar had come to the place. This receives confirmation also from the evidence of Samad Ali (P. W. 7), who stated that about 15 to 20 minutes after he reached the place, Wazid Ali inflicted the first wound and the assault lasted 20 to 25 minutes. According to the estimation of this witness there were at least 30 to 35 persons present there, including the accused party, when he came on the scene.
19. As against this evidence the investigating officer's descrip--tion of the ravages he found on the fencing walls of the dwelling house of Wazid Ali and on the - jute field on the East contiguous to his dwelling house as also on the passage leading from the land to the dwelling house appeared to cast a serious doubt on the prosecution version as to the manner and the place of occurrence. The trial Court appeared to be impressed by this as also by. The fact that the cattle track was not actually cut but there was loose earth thrown freshly upon some portion of it. It led the trial Court to doubt the veracity of the prosecution witnesses, in, the background of the dispute with regard to the right of boat-passage claimed by the complainant party over the land of Wazid Ali. The trial Court was of the opinion that the prosecution witnesses lead not deposed truthfully in respect of all aspects of the case and that they had suppressed the mannet' in which the occurrence had started and had shifted the place of the occurrence. According to the trial Court the entire occurrence took place over the dispute relating to the right of passage claimed by the complainant side. It was also of the opinion that although the incident may have started on to 'be land of Wazid, it spread to the dwelling house of Wazid and to his adjoining jute field, as was confirmed by the injuries on Wazid and 5 of his companions. In these circumstances, it took the view that the accused persons had not in the beginning formed any unlawful assembly but were first attacked when they were engaged in their lawful avocations namely; tilling and weeding of their own land. They were then chased from there up to the dwelling house of Wazid which was damaged and even the jute field of Wazid was damaged. It was then that Wazid and his supporters retaliated in exercise of their private defence of property and person and if in the course thereof they caused injuries to the complainant side, they were protected by this right. The trial Court, accordingly, acquitted all the accused but convicted Wazid Ali alone under section 304, Part it or the Pakistan Penal Code and sentenced him to four years' rigorous imprison--ment, because, in its view, Wazid Ali had exceeded his right of private defence by killing Asaddar Ali.
20. Having taken this view in the first case the trial Court also found an the second case that the defence version of the incident, namely; that the fight started over the cutting of the gopat (cattle track) was highly improbable, particularly, since the evidence of the investigating officer substantially supported the prosecution case although in this case too the complainant side had not given out the whole truth and the prosecution witnesses had embellished their story regarding the time, place and manner of the incident.
21. The delay in the lodging of the First Information Report a was considered to be in consequential in the circumstances of the case. The Court was of the view that there was no inordinate delay as the complainant side had first gone to hospital, obtained their injury report then gone to the Mukhtiax to have the petition of complaint prepared for filing before the Sub-Divisional Officer. It was felt that since they were already accused of murder they could not possibly be expected to go to the police station to lodge the counter case. In this view of the evidence it was held that on the whole the prosecution version was substantially true and the accused in this case could not claim any right of private defence either of person or property, as no personal property of their's was damaged nor was any one attacked first by the complainant side. The trial Court, therefore, convicted Hashimullah, Mafiz anal Sadak Ali under sections 148 and 324, P. P. C. And sentenced them to two years' and one year's rigorous imprisonment each, respectively, on each count. Osman, Idris, Suruj and Mafiz were convicted under sections 147 and 323, P. P. C. And were sentenced to one year's and 6 months' rigorous imprisonment each, respectively. Firij, Jahur Ali, Alkas Ali, Abdul Aziz, Kalandar, Eusuf and Shariat were, however, convicted under section 147, P. P. C. And sentenced to rigorous imprisonment for 6 months each. The rest were acquitted.
22. Against their aforesaid convictions both Wazid Ali himself and the persons convicted in the case started on the basis of his petition of complaint, filed separate appeals in the High Court of East Pakistan. The appeal filed by Wazid Ali was numbered there as Criminal Appeal No. 507 of 1963 and the appeal filed by Mafiz and those convicted along with him was numbered as Criminal Appeal No. 504 of 1963. Mafiz also filed .a revision petition against the acquittal of Wazid Ali in respect of the charge under section 302, P. P. C. And the acquittals of his co-accused. All these were heard together and disposed of by the same judgment.
23. The High Court dealt mainly with the facts of the appeal of Mafiz and others convicted with him (No. 504 of 1963) and came to the conclusion that the prosecution case, as made out by the prosecution witnesses, could not be accepted either as regards the time or the place of the incident of as regards the manner in which the incident took place.
24. The time was found to have been fixed beyond any doubt by the evidence of Dr. Sonawar Ali (D. W.
25. 4) who claimed to have examined Mafiz and his injured companion: at 2-30 p.m. Of 15th of July 1962. The incident had, there-- fore, occurred before that time, probably as suggested by the defence, at noon.
26. The occurrence, according to the High Court, took place over the cutting of the gopat, because, the investigation officer had stated in his evidence that he found many for prints on the gopat and a portion of it was newly cut and there was some discrepancy in his evidence in the two cases. He did not state in his evidence in the ease against Mafiz and his companions that he found any portion of Wazid's plot ploughed or weeded. In coming to this conclusion, however, the High Court did not take into consideration the fact that he had actually proved his sketch map in which the field of Wazid Ali was described as partially ploughed and weeded and had actually proved the seizure of broken jute plants from the path leading to the dwelling house of Wazid. He had also mentioned that the fencings of the dwelling house of Wazid were found damaged. This evidence was not chal--lenged in cross-examination. No importance was also attached to the injuries found on Wazid and his other companions, but relying mainly on the fact that Wazid himself had been contradicted, as to the time and place of occurrence, by the averments in his own petition of complaint and the evidence of his own witnesses, the High Court came to the conclusion that the appeal of Mafiz and his other co-accused should be allowed. They were all accordingly acquitted but the appeal of Wazid Ali against, his own conviction. Namely; Criminal Appeal No. 507 of 1963, was dismissed and his conviction was altered from section 304, Part 11 of the Pakistan Penal Code to section 304, Part I, P. P. C. The revision petition filed by Mafiz was also allowed in part. The sentence of Wazid enhanced to six years' rigorous imprisonment and a retrial was ordered of 1.5 of the other respondents in the said revision portion on a charge of rioting only. The only ground anon which the appeal of Wazid Ali and the revision petititon mere disposed of was that since the prosecution case in tae other appeal was the defence case in this appeal (No. 507 of 1963) and that prosecution case had been disbelieved, therefore, the defence case in this appeal must also fail.
27. Wazid then came up to this Court with two petition, 10 special leave to appeal. The main ground urged in support of these petitions was that the High Court had, in dealing with all the three cases together, not applied its mind to the evidence had the facts and circumstances of the case against Wazid and his co-accused, but had, after disposing of the, appeal filed by Mafiz and those convicted along with him, disposed of the appeal tiled by Wazid Ali simply, because, the prosecution version given in the appeal of Mafiz was in substance the defence version in the case against Wazid Ali and his companions and that version had been found to be unworthy of credence. Leave was granted in both these petitions to consider whether the High Court had acted upon correct principles in disposing of the appeal of Wazid Ali, altering his conviction, enhancing his sentence and ordering a re-trial of some of the acquitted persons tried along with him merely upon the basis that the prosecution version in the other criminal prosecution, launched on the basis. Of the peti--tion of complaint filed by Wazid, was unworthy of credence. The reasonings of the High Court, as given in its judgment, regarding the appeal of Wazid, namely; Criminal Appeal No. 507 of 1963, may be usefully quoted here for a proper appreciation of the contentions of the appellants before us "The prosecution version in Criminal Appear-No: 504 of 1963 which is the defence version in Criminal Appeal No. 507 of 1963 thus seems to be palbably false . . . . .
28. The result is that Criminal Appeal No. 504 of 1963 is allowed, the order of conviction and sentence against the accused-appellants , is set aside and they be discharged from their bail bonds.
29. So far as Criminal Appeal No. 507 of 1963 goes, the appeal is dismissed on merits except on the question of sentence of Wazid Moral . . . . .
30. So far as Revision Case No. 675 of 1963 goes, that is directed against the acquittal of the opposite- parties Nos. 3 to 24 and for enhancement of sentence of Wazid Moral.
31. So far as Wazid Moral goes for reasons already stated we enhance his sentence to six years' R. I.
32. Under section 304, Part I. P. P.C.
33. Furthermore, it appears that there is some evidence of participation in the rioting as against opposite-parties Wazid Moral, Mobassar, Azid, Wahab Ali, Gabru, Reasat, Tariqulla. Amanuila, Abdul Bari, Makram, Abdul Aziz, Suphi, Abdul Gafur, Abdul Hakim, Sonfar Ali and Jalfar Ali.
34. The position being as above, the Rule is made absolute in part and we direct that the opposite- parries named above numbering sixteen be tried on the charge of rioting regard, the rest of the opposite-parties, the evidence not being sufficient as we shall presently show, we discharge the Rule so far as they concerned. They will be discharged from their bail bonds."
35. It will thus be observed that there was no discussion at all of the evidence in Criminal Appeal No. 507 of 1963, but the same was disposed of on the basis of the findings arrived at in Criminal Appeal No. 504 of 1963 (Mafiz and others v. The State).
36. This can hardly be considered to be it satisfactory manner of disposing of a criminal appeal on facts. It is a well established rule that each criminal case, has to be decided upon the basis of the evidence led in that case. It cannot be disposed of merely because the Court has in a cross-case ,4 or in an appeal arising out of such a cross-ease taken a different view of the evidence in that case. The High Court, in our view, clearly erred in adopting such an unwarranted procedure. It was incumbent upon it to make its own inde--pendent assessment of the evidence adduced in the case started on the basis of the First Information Report lodged by Maliz. Had the High Court taken the trouble to do so it could not to have failed to notice that the evidence of the investigating officer in that case did not establish that he found the gopat out, for, it was elicited from him in cross-examination that "the gopat was uneven. I also found binna plants. I found thrown earth on cut portion. I surmised that the crossed portion was cut. I found the portion to the north of crossed portion uncut. That is 7 cubits north-south. This northern portion is lower to southern 6 cubits portion by 1/2 cubit." Again he also stated that Kalandar, who was a prosecution witne- in this case, had stated to him that "Wazid wanted to raise ail at the time of occurrence and that Asaddar resisted and that the altercation was over that. Similarly Samad too started to him that the accused persons were "raising the ail on cutting earth of gopat." The evidence of the investigating officer regarding the articles seized by him from along the path leading to the dwelling house of Wazid and the, damage he found to have been caused to the eastern fencing of the said dwelling but should have also put the High Court on' enquiry as to the truth of the prosecution story. These facts could not but have suggested that the prosecution itself had not come forward with the whole truth with regard to the place and the manner of the occurrence.
37. The High Court was also, in our view, wrong in thinking that there was no evidence in this case of injuries on the accused persons, namely; Wazid and his companions. The investigating officer had admitted that he received six reports from Medical Officer, Hatem Ali, regarding the injuries on them. These reports were actually brought on the record through D. W. 1, Satyendra Kumar Das and were marked as Exhs. C to C-5 without any objection by the prosecution. They were thus on the record and reference to them would have disclosed the nature of the injuries found on the accused persons. It could not, therefore, be said that the prosecution witnesses were telling the truth when they stated that they were totally unarmed and caused no injury at all to any one of the accused persons.
38. In fact a more careful reading of the prosecution evidence in this case would have shown, as indicated earlier in this judgment, that at first when Mafiz and Asaddar arrived there an, altercation ensued between them on the one hand and Wazid and his brother Ashid on the other. This lasted for about 15 or 20 or 30 minutes and then the fight started. The injuries on Wazid and his companions, of which some are on the back, would seem to indicate that Wazid and Ashid had at first retreated from the place towards their own dwelling house. The complainant party did not stop there even after Wazid had retreated but pursued them up to their dwelling huts and there damaged Wazid's jute plants on an adjoining land and even the fencings of his dwelling hut. It was then that the supporters of Wazid came out variously armed and in retaliation gave a beating to the complainant party in the course of which Asaddar received a serious injury on the chest and 11 others of the party of Mafiz were wounded. It is also not without significance that Mafiz studi--ously avoided both in his evidence and in his First Information Report to mention as to how the occurrence ended and the assail--ants retreated.
39. The High Court's view that the investigating officer was inimically disposed towards Mafiz and his group because of some complaint made by Moulvi Fazal Karim against the second officer of the Police Station in 1961, long before the occurrence, is not also correct. The investigating officer had frankly admitted that the said second officer was being prosecuted in a case of bribery and that the case was still pending, but he had denied the suggestion that as a result of that all the present police officers of Chattak Police Station were inimically disposed towards the complainant Mafiz or the party of Moulvi Fazal Karim. The said second officer had actuallv been transferred from Chattak in November 1961.
40. A great deal of suspicion has also been sought to be raised against the investigating officer from the fact that Wazid and some of his witnesses had been examined at the Police Station on the 23rd of July 1962, without taking them under arrest although a case of murder had already been started against them on the 15th July 1962. But this, by itself, is not a sufficient circumstance for discrediting the investigating officer's evidence. The charge-sheet was not submitted in this case till the 15th of August 1962. It was, therefore, not unlikely that the investigation not having been completed the investigating officer did not take any accused under arrest on the 23rd July 1962, but merely examined them as accused persons.
41. Having carefully examined the evidence with the assistance of the learned counsel appearing in this case we are in agreement with the trial Court that apart from the many discre--pancies in the evidence of the prosecution witnesses, it seems to be unlikely that the incident could have occurred over the cutting of the go pat. There was no earthly reason at ail for Wazid to cut the village cattle track which ran by the side of his own house and was possibly as much, if not more, useful to him as to the other villagers. It is more likely, as admitted by Kalandar and Samad Ali, two of Mafiz's own witnesses, that the incident took place over the attempt made by Wazid Ali to raise the ail of his own field after he had ploughed and weeded a portion of it. This may well have led the party of Mafiz into thinking that he was trying to create evidence in support of his own case in the civil suit relating to their claim to the right of passage by boat over the land of Wazid, particularly, since some trouble had taken place in the month of April preceding the occurrence, over the complainant party trying to cut a channel through this land. In respect of that the investigating officer had, as admitted by him, actually issued notices to both parties not to commit any breach of peace. There was every likelihood, therefore, of the complainant party having started the fight over the attempt of Wazid Ali to raise the height of his owr nil. This would also explain the anxiety of Mafiz and hip associates to suppress that they had caused any injuries to Wazid anti his companions or that there was any fight between the two rival parties at that stage.
42. Even assuming that Wazid Ali had actually removed some earth from the gopat to raise the height of his nil that would not, in our opinion, have given any right to Mafiz and his companions to prevent Wazid from doing so wit' the use of force. If they used force even for this purpose they clearly acted illegally and if in the course thereof the chased Wazid and his companions up to their dwelling house and damaged the dwelling house fencings and Wazid's jute crop in the adjoining field, then Wazid acquired the right to resist them by use of force and if in doing so he caused injuries to them, neither he nor his associates could be held guilty of either rioting or exceeding their right of private defence of person. The trial Court was, accordingly, in our opinion, right in acquitting Wazid Ali and his companions on the charge of rioting and causing hurt to the members of the complainant's party.
43. This right of private defence however, only extended to the causing of injury short of death. Hence Wazid Moral exceeded his right of private defence by causing an injury to Asaddar which he knew, or ought to have known, would be likely to result in the death of Asaddar. The offence, in the circumstances which he committed was rightly found by the trial Court to be one under section 304, Part II of the Pakistan Penal Code. We accordingly, allow the appeal of Wazid Ali against his conviction by the High Court under section 304, Part I, alter his conviction to section 304, Part 11 and reduce his sentence to four years' rigorous imprisonment, as imposed by the trial Court.
44. We also set aside the order of the re-trial of the 13 other co-accused (two having since died) on a charge of rioting only, as the evidence of their participation in the rioting is neither clear nor convincing nor has the prosecution succeeded in establishing that they formed themselves into an unlawful assembly in the circumstances of this case. If they acted, we- have found, in exercise of their right of private defence then they could not be members of an unlawful assembly. No witness was also clear as to who in the melee struck whom. So their individual liability for their own individual acts has not been established beyond reasonable doubt.
45. So far as the appeal arising out of the Petition No. 61-D of 1966 (Criminal Appeal No. 6-D of 1969) is concerned, which has been filed by Wazid Ali against the acquittal of Mafiz and his companions who were convicted by the trial Court along with him, we find from the evidence adduced in that case that Wazid Moral and his witnesses had also suppressed the fact that they too had caused injuries to Mafiz and his companions. The time of the incident was also wrongly given as 3 p.m. By Wazid Ali. As to the manner of the incident it has to be pointed out that in this case the assertion of the Investigating Officer that he found the gopat cut was not seriously challenged in cross- examina--tion. He was not even confronted with his deposition in the other case where he had clarified that it was only his surmise that the gopat was cut.
46. The evidence of the participation of each accused was, as rightly pointed out by the High Court, also discrepant and contradictory. Obviously each side had tried to rope in as many of the other side as possible.
47. Thus, even though the incident nay have occurred substantially as suggested by the prosecution, arid in the fight the ensued the members of the party opposed to 'arid Ali were really the aggressors, yet since no serious injury was caused to any one and in the fight which took place no witness could clearly identify as to who struck whom, the individual responsibility of the accused in that case cannot be determined with any certainty. In the circumstances, we are inclined to agree with the High Court that the conviction of the appel--lant in Criminal Appeal No. 504 of 1963 in the High Court cannot be maintained in the face of the contradictory nature of the evidence of the prosecution witnesses, and the inordinate delay in the filing of the complaint be Wajid Ali.
48. There can be not doubt that the case started be Wazid Ali upon the basis of his petition of complaint drafted by a lawyer, was in the nature of a counterblast to the information already lodged by Mafiz against Wazid and his companions, There could be no question or Wand being afraid to go to the police station to lodge-a counter- complaint titre to the starting of the murder case against him, for, on the admission of the investigation officer himself, Wazid Ali had visited the police station on the 23rd July 1962" for giving his statement and even up, to that stage the investigating officer had nit arrested him on the charge of murder, He could well have lodged a counter-information on the 23rd July 1962, when he went to the Police Station. The petition of complaint filed before the Sub-Divisional Officer had not, it must he pointed out, reached the police station until 5 p.m. Of the 26th July 1962.
49. There can be no doubt that upon the evidence adduced in this case too, it is clear, that there was a free fight between the two groups, the members of which were variously and rind this fight lasted for some 20 or 25 minutes. In the course of this fight, people on both sides received injuries, though the side of Mafia suffered most. But in this confusion it was not unlikely that no one noticed with any precision as to who struck whom. In those circumstances, we are of the opinion that the High Court was right in giving the benefit of doubt to the respondents in this appeal (Criminal Appeal No. 6-D of 1969). The view taken by the High Court was neither impossible nor unreasonable. We therefore upon the principles consistently followed by us in appeals against acquittals be the High Court, feel disinclined to interfere with the order of the High Court, The result, therefore, is that Criminal Appeal No. 5-D of 1969, is allowed, the order of re-trial is set aside, the conviction of Wazid Moral is altered to one under section 304, Part ]I. P. P. C. And his sentence is reduced to four years' rigorous imprisonment. If he has already served out his sentence lie sltottld be discharged from his bail bond and set at liberty forthwith. Criminal .Appeal No. 6-D of 1969 is, however, distahsed and the acquittal of the respondents therein is upheld. They should now be discharged 'from their bail --bonds immediately.