MUHAMMAD NAWAZ ABBASI, J.- This judgment will dispose of Crl. Appeal No. 1171/80 filed by the State against the acquittal of the respondents namely Muhammad Aslam, Muhammad Akram.
Muhammad Ashraf, Muhammad Akhtar, Fateh Muhammad and Muhammad Sharif by the learned Additional Sessions Judge, Jhelum vide judgment dated 27.4.1980.
2. Briefly the facts of the case in the background are that there was litigation on the dispute of land between the father of Muhammad Zarat and Muhammad Aslam, which ended in favour of Muhammad Zarat a year before the occurrence. About two years ago Muhammad Yousaf and Muhammad Zar Macchi by caste resident of village caused injuries to Muhammad Aslam. The matter was, not reported to the police but Muhammad Aslam being annoyed with the said Muhammad Yousaf and Muhammad Zar demanded from Muhammad Zarat and Muhammad Hussain complainant the social bycot of the above said Macchis but the complainant arid Muhammad Zarat continued taking benefit of the service of these kamis during the marriage parties and other family functions. A day earlier before the occurrence Muhammad Zar and Muhammad Yousaf were desisted from taking water from the well Mochianwala by Muhammad Aslam etc. With the intervention of respectables, the issue was resolved and they were permitted to get water from the well in question. However, Muhammad Aslam etc. Declared in the village that Rajgans would not be allowed to get water from this well. On the day of occurrence at about 1.00 in the afternoon Muhammad Yousaf and Muhammad Zar went to the well for getting water when Muhammad Aslam armed with soti Akram with rifle. Muhammad Ashraf. With Muhammad Akhtar and fateh Muhammad sons of Alam armed with l2 bore guns and Sharif carrying soti raising lalkara appeared at the well. Muhammad Yousaf and Muhammad Zar raising hue and cry run towards the village whereupon Muhammad Yousaf son of Allah Ditta. Muhammad Ibrahim and Muhammad Shafat PWs .Carrying l2 bore guns reached at the spot and in consequence thereof parties exchange firing. The shot fired by Akram hit on the back of Yousaf whereas the complainant was injured with the shots fired by Ashraf and Akhtar. Muhammad Shafat in his protection and in the protection of complainant and PWs fired in return. The occurrence was also witnessed by Noor Hussain, Nawab Khan and Noor Muhammad. Muhammad Yousaf succumbed to injuries at the spot. Muhammad Zarat and Muhammad Zar Mocchi of the village being controversial between the two tribes namely; Gujjar and Rajput Ghaghar, they stood against each other.
3. The motive as. Stated was that father of Muhammad Zarat had strained relation with Muhammad Aslam, accused, due to the dispute of land which ended in favour of the former through process of law and that Muhammad Yousaf and Muhammad Zar Macchies caused injuries to Muhammad Aslam two years prior to the occurrence, who demanded from, Muhammad Zarat and Muhammad Hussain. The social bycot of these macchies of the village.
4. The investigation of the case was carried by Sikander Hayat. SHO. who collected blood-stained earth and 10 empties cartridges, of l2 bore gun two empties of 7 mm rifle from the spot and took into possession gun from Shafat. The weapon of offence having not recovered from the appellants, the recovery of empties was of no consequence. Muhammad Hussain, injured PW w>as medically examined on the same day by the doctor who conducted post-mortem examination of the dead body.
5. Dr. Asghar Hussain. Medical Officer (PW.1) examined Muhammad Ibrahim PW on 13.2.1978 and found one lacerated wound on the left side of his chest between neck and left shoulder joint.
Margins of the wound were inverted and were brownish in colour. It was caused by fire-arm and was declared grievous.
6. On 14.2.1978 the said doctor also examined Muhammad Hassan PW and found a lacerated wound on the left side back of the neck one inch below the left ear. Upon his person. It was caused with blunt weapon and was declared as simple.
7. Dr. Asghar Hussain, Medical Officer (PW.4) conducted the postmortem examination on the dead body of deceased on 14.2.1978 at 10.00 a.m. And found the following injuries on his person:-
1. A lacerated would 1 x into thorax cavity deep with inverted margins. There was blackening around the wound on the upper third between two scapula on the left.
2. :A bruise 2" x 1" on the left front lower part of the neck.
Capt. Dr. Zamir Akhtar (PW.2) medically examined Muhammad Sharif on 17.2.1978 and found one rounded lacerated wound 1/2" x 3/8" on front side of the right shoulder, on the person of the accused. It was simple and found to have been caused with fire-arm.
8. The prosecution in addition to the evidence of Doctor who performed post-mortem of dead body and medically examined the injured PWs and Muhammad Sharif accused, mainly relied upon the evidence of ocular account of eye-witnesses, namely, Muhammad Hussain. Ibrahim. Shaukat and Muhammad Yousaf, who in their statements at the trial repeated the story of the prosecution with some changes and improvements Muhammad Aslant, accused/respondent in his statement under section 342 Cr.P.C, in answer to question No. 17 stated as under:- "The actual fact is that Fateh Muhammad and Muhammad Sharif my co-accused and myself were present on the Mochianwala well in the afternoon. Muhammad Zar and Muhammad Yousaf came there. On seeing us, they ran away. We were completely unarmed. Shortly thereafter, Yousaf.
Muhammad Shafat. Muhammad Ibrahim and Muhammad Hussain came there behind each other variously armed with fire-arms. They opened an assault upon us, which resulted in causing injuries to Muhammad Sharif, accused, .Yousaf deceased also received a. Fatal injury at the hands of his companions and so did Muhammad Ibrahim P\Y. We were falsely implicated.''
The defence further in cross-examination while putting suggestion to the witnesses brought on record defence plea of aggression of the complainant party.
9. The. Eye-witnesses have categorically stated that the shots were fired at them from a distance of about 40 karams when they were facing towards the accused whereas according to medical evidence, the wounds were blackened and the seats of injuries were on the back of the deceased and the injured PWs. This is in the evidence of Muhammad Hussain that shot fired by Ashraf and Akhtar hit him and Muhammad Ibrahim respectively but he taking a diversion from the initial story through making changes assigned a specific role to Ashraf and Akhtar accused. According to him Shafqat PW fired successive shots in return and he while running with Yousaf and Ibrahim received injuries and that complainant received injury from a distance of 24 karams. He admitted that the complainant party intended not to allow the respondents to get water from the disputed well and as a result Thereof a dispute arose between the two groups which caused the fateful occurrence.
The other witnesses almost made the similar statements. The evidence of recovery and the motive having not proved -was excluded from consideration. The medical evidence being in conflict with the eye-witness account, no reliance was placed on the statement of the eye-witnesses despite the fact that they were injured and defence having admitted occurrence did, not disputed their presence.
10. The learned counsel for the appellant contends that the defence hating admitted the' occurrence, the evidence of injured witnesses was sufficient to establish the charge without any corroboration. He contended that despite the material contradiction and discrepancy in evidence, the statements being truthful were entitled to be given full weight. He placing reliance on the case reported as USMAN KHAN AND OTHERS VERSUS THE STATE (PLD 1969 SC 293) argued that the view of the evidence taken by the trial Court being perverse and artificial, the acquittal of respondents is not sustainable.
11. The learned counsel for the respondents argued that the exchange of firing between the parties, being admitted, as per version given Vv the prosecution, both sides without taking any exception became tensive over the issue of Macchies and dispute of water. The complainant party having made the same a matter of their prestige desist the appellant from getting water from the well and in consequence thereof complainant side went to the extent of causing violence over the issue. He submitted that the prosecution story itself disclosed aggression of the complainant and therefore, the appellant under compelled circumstances acting in exercise of their right of self-defence, caused injuries to the complainant party.
12 We have heard the learned counsel for the appellant as well as the learned counsel appearing on behalf of the respondents and carefully perused the record with their assistance.
13. The taking place of the occurrence with the participation of the parties is not disputed. The occurrence is admitted by the accused with the plea that complainant party was the aggression and they acted in their self- defence exchanged firing. The evidence of eye-witnesses unambiguously- disclosed that the parties did not stand against each other for the dispute of land or causing of injury to Muhammad Aslam etc. By Muhammad Zar etc. Two years ago but the real bone of contention was Kammies of village who were condoned by the complainant side not to be encouraged by the members' of any Zamidar tribes but, the accused party continuously- permitted them, to participate in their family functions. This has felt insulted by the complainant party, who with a view to put their command were not prepared to compromise with the situation.
According to the story, the Kammies went to the-well for taking water when they were attacked by the complainant party and the reaching of accused at the spot for their help made the matter complicated. The fire-arm injury on the person of Sharif and the exchange of firing by Shafat is an essential element in favour of defence version. The shot having made from a distance of 40 karams could not possibly cause injuries to the deceased or PWs and, therefore, the complainant party' through suppression of the material facts disclosed the maximum distance of firing to establish the aggression of other side in contradiction to the medical evidence, according which the injuries were caused from a close range. Thus with-holding the correct position and suppression of actual state of affairs, has created a serious doubt about the correctness of the prosecution, version. The conflict of eye-witness account with the medical evidence on the distance and range of firing is not ignoreable. The confusion and suspicion that in what manner and who took initiative created must be used for the benefit of accused, out of the two versions.
Which are correct and near to truth being shrouded in mystery, the view favourable to accused it to be given preference.
14. Taking into consideration the circumstances under which the occurrence took place and the cloudy story put by the prosecution, it appears that as a result of attack by the complainant at Kammies a quarrel took place between the two groups and some persons from the both sides inviting exchange of firing caused injuries to the PWs and the deceased, who alongwith many other reached at the spot. Undoubtedly both parties being guilty of suppression of material facts, the evidence of the eye-witnesses despite being injured cannot be given much weight and relied upon as such without independent corroboration W'hich is not available in the present case.
15. The ocular account of eye-witnesses carrying personal grievance and complaint against respondents without haring the support of corroboration evidence could not be believed to accept the prosecution version correct beyond doubt and consequently the conviction on the basis of their testimony was not safe. The view' of the evidence taken by the learned trial Court being not suffering from any infirmity, perversity and not being fanciful in un-exceptionable. The occurrence haring taken place in the year 1978. The trial was concluded in April 1980, and the interference in this appeal against the acquittal of the respondents after lapse of a period of about 19 years through reappraisal of extensively shay evidence of eye-witnesses is not justified. We accordingly do not any substance in this appeal which stands dismissed.