1. SAJJAD AHMAD, J.-This appeal, by special leave, arises out of the acquittal of the respondents, made by the High Court, of charges under sections 302/34, 325/34 and 323/34, for causing the murder of one Hayat, and grievous and simple injuries to P. Ws. Ahman, Paralla and Muhammad, after they had been convicted of those offences by the learned Additional Sessions Judge, Lahore.
2. Nawaz, who was additionally convicted under section 13 (E) Of the Arms Ordinance, 1965, by the learned trial Judge, was acquitted of that offence also by the High Court. Respondents Nawaz and Abbas, are real brothers, being sons of the third respondent, Ghaus, and the fourth, namely, Siddique, is their servant.
3. The motive for the offence was stated to be a dispute over a kikar tree standing on the common banna of the lands of the parties. Ahmad, P. W. Had permitted one Wasawa to cut this tree. When Wasawa sent his sons, Amir, Salehoon and Pira, to cut the tree, the respondents did not allow them to do so. This had led to an altercation between Ahman and Hayat deceased on the one side and the appellants on the other, a day before the present occurrence, which took place on the 23rd of November 1965, at 7-30 p.m. In front of the Dhara of Ahman, P. W., to the West of the village abadi. It was alleged that Ahman was sitting with his sons, Muhammad, P. W. And Hayat, deceased, in his dhara. The four respondents came there. Nawaz was armed with a barchhi, while the rest had dangs. Ghaus raised a lalkara that they had come to avenge the incident of the previous day. On this, Hayat, deceased, advanced towards the accused, when Nawaz struck him a barchhi blow in the abdomen and another on the right shoulder. When Ahman came forward, he was given a stick blow by Abbas on the head. Then all the accused gave dang blows to him. P. Ws, Paralla, Abbas and Feroze arrived at the spot, out of whom Paralla got a fracture of his arm by a stick blow dealt by Abbas, respondent.
4. The First Information Report was lodged by Muhammad, P. W., at 9-15 p.m. The same night at the Ajniawala Police Post, situated at a distance of 3 miles from the spot.
5. Out of the respondents, Ghaus and Abbas were found to have sustained injuries, which were all simple. They (Ghaus and Abbas) admitted their presence at the spot, and, stated that at the time of the occurrence, they were returning to their houses after having watered their lands. When Ghaus accused was going past the dhara of Ahman, Muhammad, Paralla, Ahman and Hayat, who were sitting in the dhara, confronted him. Paralla caught hold of him by the shirt, and Muhammad, Ahman and Hayat started giving him blows with sticks. Abbas, who was at some distance from his father, having taken a different route to return home, was attracted to the spot, and he was also beaten by the complainant party.
6. It was thus a case of two opposite versions, each side claiming that the other was the aggressor.
7. The learned Additional Sessions Judge accepted the complainants' version, mainly because the complainant party had suffered a much greater number of injuries than the accused party. The learned judges in the High Court have found that in reaching the conclusion that the accused party was the aggressor, the learned trial Judge had ignore certain basic admissions in the prosecution evidence, which clearly produce an opposite result. It is pointed out that Hayat, deceased, had advanced towards Ghaus just when the latter passed in front of dhara of Ahman.
8. Muhammad, P. W. 3, admitted that "at the time, . The four accused appeared at our dhara, and, when Nawaz shouted that they had come to avenge the incident of day before, we got up and advanced towards the accused". Ahman, P. W., also stated as follows:- "I, Hayat deceased and Muhammad were present at our dhara. The four accused came there.
9. Nawaz accused had spear, Exh. P.
1. The other three were holding dangs. Nawaz accused shouted that they had come to avenge the incident of day before. We got up. Hayat deceased went towards the accused."
10. This account, coming from the prosecution witnesses, clearly shows that the complainant party came out and confronted the accused party when it was going past their dhara, and sought an encounter with them. The mere fact that the complainant party got more injuries in the fight than the accused party did, would not relieve it of the initial act of aggression. It is further clear from the evidence of P. W. Ahman that it was a matter of usual routine for the accused persons to pass by the dhara of the complainant party while going towards their houses from their lands. His statement on this point may be reproduced:- "The accused used to pass by our dhara on their way to their houses from their lands. The place where our blood fell after our injuries is an open space, but on one side of the path. The mosque near our dhara is to the north of the dhara. In between the mosque and dhara, is open space.
11. Anybody who wants can pass through that open space. Our blood fell in between the mosque and my dhara."
12. The learned trial Judge was influenced by the circumstance that blood was found at the mouth of the dhara of the complainant party, which is contradicted by the statement of Ahman reproduced above, and it is not shown how the learned trial Judge came to make that observation.
13. After giving a careful thought to the entire evidence in the case, we are of the opinion that the view adopted by the learned Judges of the High Court that the possibility of the defence version being true, cannot be ruled out. In any ease, the view of the learned .Judges, which finds considerable support from the prosecution evidence itself and the circumstances of the case, does not merit interference. The injuries suffered by the accused party were, in the first instance, suppressed by the prosecution in the F: I. :R., although the witnesses did make a belated attempt at the trial to explain the same by stating that the complainant party had, in the course of the fight, dealt blows to the accused persons also.
14. We consider that the acquittal of the respondents as recorded by' the High Court, has proceeded on a valid basis, and no case is made out for our interference. In the result, this appeal is dismissed.