1. WAHIDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of a learned Single Judge of the High Court of West Pakistan, Lahore, in Criminal Appeal No. 714 of 1965 dated the 26th May 1967. By this judgment the conviction and sentence passed on Ilam Din, Khair Din, Hakam and Akram under section 148, P. P. C. Was set aside. They were convicted for the murder of Jhanda under section 302/34, P. P. C. And each one of them was sentenced to transportation for life. They were also convicted under section 326/34, P. P. C. To suffer rigorous imprisonment for a period of two years for the injuries to Ahmad Din. They were further convicted under section 323/34, P. P. C. For caus--ing injuries to Fateh Muhammad and Jamil and sentenced for a period of six months' R. I. The sentences were ordered to run concurrently.
2. The prosecution story is that on the 25th July 1964, Fateh Muhammad P. W. 13, and Jhanda deceased made a cut in the common banna of fields Nos. 382 and 380 in order to drain out the rain water collected in field No. 383 which was under their cultivation as they wanted to prepare the land for the sowing of paddy. Field No. 380 was in the possession of Wazir Khan. He filled in the breach to stop the flow of rain water in his field. Fateh Muhammad and Jhanda again made a cut and it led to an exchange of hot words between the parties. It is alleged that on the same day at degarwela. Fateh Muhammad, Jhanda, their brother Sardar Muhammad and Ahmad Din and Jamil were returning to their village from Tootwala well in order to take food. All of them, except Sardar Muhammad, had driving sticks with them. They were still at some distance from the banna which Fateh Muhammad and Jhanda had cut in the morning when Wazir Khan Choghatta, Ilam Din, Khair Din, Hakam, Akram and Nazir came out of a Jowar field. Ilam Din and Khair Din had lathis while the rest were armed with hatchets. Wazir Khan challenged Fateh Muhammad and others. They were also joined with Siraj and Siddiq who were armed with sticks. Wazir Khan opened the attack and gave a hatchet blow to the deceased on the head followed by Choghatta who also gave a hatchet blow on the head of Jhanda. He fell down. Nazir and Hakam injured Fateh Muhammad. Choghatta then gave a kulhari blow on the right elbow of Ahmad Din. Ahmad Din gave blows to Wazir Khan, Ilam Din and Siddiq. Jamil injured Khair Din in self-defence. Akram gave a kulhari blow to Fateh Muhammad after he had fallen down. Bashir Ahmad and Sadiq came to the spot. Bashir fired twice in the air with his gun. The assailants fled in the direction of their well. The injured persons were taken to the village. Jhanda, however, died on the way to village Bhagian. Sardar Muhammad P. W.
3. 9 then left the place to lodge a report. He reached Narang Police Station at a distance of 10 miles from village Bhagian where the occurrence took place and lodged the F. I. R., Exh. P. L., at 12-30 a.m.
4. On the 26th July 1964.
5. The police investigated the matter. The Sub-Inspector recorded the supplementary statement of Sardar Muhammad and in this statement he mentioned Siraj and Siddiq as assailants. While going to the place of occurrence, the Sub --Inspector reached Mehta Suja Railway Police Station, at 4-30 a.m. Fateh Muhammad, Jamil and Ahmad Din P. Ws. Were there. Sub-Inspector prepared their injuries sheet and sent them for medical examination to the Civil Hospital, Narang. He reached the scene of crime at 7-30 a.m., where he prepared the injury sheet and inquest report and dispatched the dead body of Jhanda to the mortuary for post-mortem examination.
6. Hakam, Wazir Khan and Khair Din were arrested on the 24th July 1964. Akram, Ilam Din, Siddiq and Siraj were arrested on the 2nd of August 1964. Wazir Khan and Khair Din had injuries. Ilam Din and Siddiq had also injuries on their persons. They were medically examined. Nine persons were challaned by the police. Out of them, Wazir Khan died during the pendency of the appeal. Chiragh Din, Siraj and Siddiq were acquitted by the trial Court. The High Court acquitted Nazir.
7. Special leave was granted in this case to consider the plea of self-defence of property and the plea of grave and sudden provocation claimed by the appellants.
8. The prosecution case is based on the testimony of P. W. 9 Sardar Muhammad, P. W. 11 Ahmad Din, P.
9. W. 12 Jamal, P. W. 13 Fateh Muhammad, P. W. 14 Siddiq and P. W. 15 Bashir Ahmad. Out of them, P. W.
10. 11 Ahmad Din, P. W. 12 Jarnil and P. W. 13 Fateh Muhammad are injured persons. The trial Judge did not place any reliance on the evidence of P. W. 9, P. W. 14 and P. W.
15. The High Court has, however, relied on the evidence of Muhammad Siddiq P. W. 14.
11. The most important question in this case is whether the plea of self-defence of property and grave and sudden provoca--tion is available to the appellants on the facts of the present case. The version of the occurrence given by Ilam Din and Khair Din is as under:- "On the day of the occurrence, between peshi and degarwela I reached my field when I was going round and I saw that Fateh Muhammad P. W. Had diverted the flow of water from our field which had been prepared for planting paddy the next day, into his own filed. I filled in the cut to stop the flow of water to his field. Fateh Mohammad had a sot! With which he gave blow to me. I raised an alarm which attracted my father Wazir Khan and my brother Khair Din who came armed with kulhari and soti respectively. Pateh Muhammad also raised an alarm upon which Jhanda armed with hatchet, Ahmad and Jamil armed with sotis came there. On reaching near us, Jhanda struck kulhari blow on my leg. My father struck kulhari blow to Jhanda and then fight started in which the parties used their weapons against each other. It is how I received the injuries. -Our field was irrigated by canal water and it was the canal water in our field the flow of which had been diverted by Fateh Muhammad to his field which is not irrigated by canal water. I had caused injuries to Fateh Mohammad when .He had injured me."
12. Thus the version of the appellants is that there was one incident and it was during that incident that the fight bet--ween the parties took place. There is, however, no evidence to support this plea.
13. Even according to the version given above, the occurrence took place between peshiwela and degarwela time. This aspect of the case was considered by the learned trial Court and his finding that there were two incidents as claimed by the prosecution appears to be sound. According to Fateh Mohammad P. W. 13, the altercation with Wazir Khan took place in the morning and the attack was made at degarwela. He stated that after Wazir Khan had returned to his well he and Jhanda remained cultivating a nearby field for over three hours during which the water continued flowing through the field of Wazir Khan. The accused did not attack during that period. It was argued by Mr. Jamil Hussain Rizvi, learned counsel for the appellants that the version of the prosecution that Wazir Khan being one against two failed to fill the cut when it was made a second time by Jhanda and Fateh Muhammad and he went to collect his relatives and friends and that he allowed the water to flow through the cut from chahwela till degarwela is not believe able.
14. According to the learned counsel, the action of the complainant was not only illegal but it was causing damage to appellants' fields and he could not allow the mischief to continue almost the whole day. Ordinarily, he would have come back within an hour. The contention of the learned counsel has not impressed us because if the incident had taken place in the morning the chances of Ahmad Din P. W. Also having been injured were remote. He had no connection with the land of the complainants or the accused. He had no occasion to be near the scene at that time. The injuries on his person show his presence. The accused also admitted his presence. Their case is that he came on the alarm of Fateh Muhammad P W. The learned trial Judge was perfectly right in observing that Ahmad Din is not related to the complainants, and he was not expected to join the fight on their behalf. The presence of injuries on his person show that he happened to be with the complainants at the time of attack and was injured. We, therefore, agree with the conclusion of the learned trial Judge that only possible theory which can be accepted in the present case is that when Ahmad Din was returning with the complainant party at degarwela the incident took place. In these circumstances, the plea of self-defence and grave and sudden provocation is not available to the appellants.
15. Mr. Jamil Hussain Rizvi, contended that the three eye--witnesses relied upon by the High Court, are close relatives and therefore, their evidence should not have been believed. He further contended that as many persons have been falsely implicated their evidence should be rejected with regard to the rest of the accused persons also. According to the learned counsel benefit of doubt should be given to the appellants. These contentions also have not impressed us. The evidence of the above three eye-witnesses who were present have been supported by the evidence of P. W. 14 Muhammad Siddiq. No reason had been shown to us to discard the evidence of this witness. He is a disinterested person and is not related to any of the parties. In these circumstances, the conviction of the appellants is based on proper appreciation of the evidence led in the case. It will be noticed that the complainant party has received as many as 17 injuries out of them many are incised wounds ; two of them being fatal which were caused to Jhanda deceased. The accused party received in all nine injuries ; all of them are simple. This clearly shows that the accused party were aggressors.
16. It was urged by the learned counsel for the appellants that each accused is responsible for the injuries caused by them and they should not be held for the injuries caused to ihanda deceased.
17. This contention also has no force because there was a common intention of all the accused persons to teach lesson to Jhanda and his party and it was during this that,, Jhanda received fatal injuries. The appellants, therefore, are also vicariously liable for the injuries caused to Jhanda by Wazir Khan. There is also no force in the contention of the learned counsel for the appellants that Hakam and Akram are the sister's sons of Choghatta and the first cousins of Nazir and they have been roped in like Choghatta. The evidence of the eye-witnesses clearly shows that they were present on the scene of occurrence. They participated in the crime and, therefore, they have been rightly convicted.
18. After careful consideration of the facts of the present case, we are satisfied that the learned Courts below have rightly relied on the evidence of P. W. 11 Ahmad Din, P. W. 12 Jamil and P. W. 13 Fateh Mohammad. The High Court has further rightly taken into consideration the evidence of Muhammad Siddiq P. W.
14. On their evidence, the appellants have been properly convicted for various terms of imprisonments. There is no ground to interfere in this matter. The appeal is dismissed.