' Sultan Ahmed son of Khuda Bakhsh, Majid son of Fateh Muhammad, Muhammad Rafiq son of Fateh Ali, Muhammad Amir son of Ahmed, Sultan Ahmad son of Jahana, Muhammad Khan son of Jahan Khan, Khuda Bakhsh son of Jalal, Nazir son of Khuda Bakhsh, Jahan Khan son of Karam Bakhsh, Muhammad Abdullah son of Khuda Bakhsh and Ahmad son of Khuda Bakhsh, were sent up for trial before Sub-Divisional Magistrate, Pind Dadan Khan, under section 141/325/149, P. P. C. For causing injuries to Muhammad Aslam, Muhammad Yasin, Allah Bakhsh, Muhammad and Khuda Bakhsh, P. Ws. Sultan Ahmad son of Khuda Bakhsh accused died during the course of trial and Muhammad Amirt, Muhammad Abdullah, Ahmad Jahan Khan and Muhammad Rafiq, were acquitted while Sultan son of Jahana, Nazir, Muhammad Khan, Khuda Bakhsh and Majid, were convicted and sentenced to four months' R. I. Each under section 148, P. P. C. And six months' R. I.
Each under section 325/149, P. P. C. Vide judgment of the trial Magistrate, dated 28-8-1964. Both sentences were ordered to run concurrently.
' The five convicts filed an appeal before the learned Additional Sessions Judge, Jhelum, who vide his judgment dated 6-4-1975, while acquitting Majid accused, dismissed not only the appeal of the remaining four accused and maintained their conviction and sentences, under section 325/34, P. P.
C. But also convicted and sentenced them to three months' under section 323/34, P. P. C.
2. Hence, this revision petition by Sultan Ahmed son of Jahana, Muhammad Khan, Khuda Bakhsh and Nazir petitioners.
3. At the very outset of this case, it may be mentioned that record of this case was destroyed in the office of the District Magistrate, Jhelum, and this matter was brought to the notice of Mr. Justice Muhammad Afzal Cheema (as his Lordship then was), who vide his order dated 2-3-1970 on the note appended with the petition, directed that the petition may be heard with the help of the two judgments of the Courts below. Today, with the assistance of the learned counsel for the petitioners as well as for the State and with the help of the record which luckily was in possession of the learned counsel for the petitioners, I have gone through the judgments very carefully.
4. The brief facts of the case are that on 23-12-1962, there occurred some altercation between Muhammad Aslam and Muhammad Yasin P. Ws. On one side and Sultan Ahmad petitioner on the other side, over the damage caused by a she-donkey belonging to the complainant party, which bad strayed into the fields of the petitioners' party. After sometime, sequal to this altercation, the petitioner alongwith their co-accused (11 in number), came armed with hatchets and sticks and inflicted injuries on the persons, of the P. Ws. With their respective weapons. It will be useful to mention here that out of the eleven who came to participate in this assault, Sultan son of Khuda Bakhsh (since dead), Majid, Ahmad and Muhammad Abdullah were armed with hatchets while rest were armed with sticks. The persons who received injuries during this scuffle were Muhammad Aslam, Muhammad Yasin, Allah Bakhsh, Sultan, Muhammad and Khuda Bakhsh P. Ws. And Sultan Ahmad son of Jahana and Khuda Bakhsh, son of .1alal, on the side of the accused party.
5. The case of the prosecution was that all the eleven persons, had entered the house of the complainant Muhammad Aslam and thus after committing trespassing, belaboured him alongwith the other P. Ws. Who happened to intervene for his rescue.
6. The case of the defence, with the exception of the present petitioners, was that of bare denial while the petitioners pleaded the right of private defence. It was asserted on their behalf that while they were taking the she-donkey to the cattle pond, it was the complainant party who wanted to seize the same and in that process opened attack on the petitioners, who in the right of their private defence caused a number of injuries on the persons of the P. Ws. Eight witnesses were produced in defence by the petitioners.
7. Learned counsel for the petitioners has addressed me and has made the following submissions :-
(i) that both the Courts below have not given any reason as to why they have believed the same evidence which they have disbelieved qua the acquitted accused particularly when it was of uniform nature ;
(ii) that to arrive at the conclusion simply because the petitioners had participated in the crime in the right of their private defence, was a faulty approach ;
(iii) that the evidence of the injured witnesses was at complete variance with the medical evidence, therefore, no reliance can be placed on their testimony although their presence at the spot was established
(iv) that the plea of self-defence was fully made out from the facts of the prosecution case itself as the cause of grievance lay with the complainant party and not with the petitioners ;
(v) that the F. I. R. Was initiated at the instance of the petitioners and not by the complainant party.
It was only when the Investigating Officer had reached the spot to conduct inquiry regarding the F.
I. R. Lodged by the accused party that the statement of Muhammad Aslam complainant was recorded at the spot.
8. On the other hand, learned counsel for the State has supported the two judgments of the Courts below which according to him were concurrent findings of fact and could not be interfered with at the revision stage. He has further submitted that may be the accused had caused injuries from the blunt side of the hatchets and thus the absence of sharp-edged incised injuries on the persons of the P. Ws. Was the result of this process. He also submitted that the principle of falsus in uno falsus in omnibus, no more holds the field and therefore, the Courts in this country were fully competent to separate the grains from the chaff.
9. I have given my anxious thought to all these contentions and have assessed the judgments of the two Courts below. While going through the evidence of all the P. Ws. One thing is absolutely clear that they are all unanimous that all the eleven accused including the petitioners fully participated in this occurrence and gave beating to the P. Ws. With their respective weapons. There is also no room for doubt that the learned trial Court as well as the learned appellate Court has held that the five persons who were holding hatchets did not participate in the occurrence, as not a single injury was found on the person of the P. Ws. Which was result of a ,sharp-edged weapon.
The perusal of the judgments clearly reveals that no reasons have been assigned for the acquittal of those persons who were charged by these witnesses equally without any discrimination.
Similarly, nothing has been said while arriving at the conviction of the petitioners as to how they stood connected with the commission of this offence when there was no corroborative evidence of any sort coming from any quarter to make them liable for the offence so committed. If there would have been the evidence of recovery connecting the petitioners with this offence, then of course, it could be said that the grains were sifted from the chaff. I have no hesitation to hold that the method of sifting the grain from the chaff, in the instant case, was neither possible nor advisable particularly at the cost of credibility of the witnesses which could not be considered divisible. If these witnesses had considered that they, in their zeal or over anxiety had implicated all the eleven accused in their statements before the police but later on after a second thought had decided to tell the truth and to give a correct version, they might have been given allowance for this weakness of human nature. But in the present case, what I find is that they are as adament as a rock till the end of the trial and repeat with confidence that hatchets were used against their own persons as well as the persons of others who were with them, which is nothing but a shame faced lie made, in a most blatant manner. The evidence of such like witnesses hardly inspires confidence. Their statements are to be accepted with a pinch of salt and therefore it becomes all the more necessary that I should look for some piece of corroborative evidence, which in this case, is not forthcoming.
10. As regards the plea of private defence, it has been supported by eight defence witnesses. The reasoning given by the two Courts below to throw their evidence to winds, is hardly convincing. It is a well-established principle of law that when the defence is able to make out that the possibility of the plea taken by it is not absolutely excluded, the accused is entitled to take the benefit of that plea. It is never for the accused to establish beyond reasonable doubt that the plea of private self- defence set up by them stands fully proved but what they have to show , is that its possibility is there, In the present case, the she donkey had damaged the crop of the accused party and naturally they would like to impound it and similarly, the complainant party would be anxious to seize the same, a usual feature in a village life. For this reason, it cannot be said that the cause of grievance lay with the petitioners and they Would come to beat the complainant party particularly when they had a guilty conscience. The volume of the defence evidence speaks for itself in this respect. Moreover, the argument that as the com- plainant party received more injuries than the accused party, therefore, the accused party, would be aggressor is hardly a judicial approach of this subject in view of the law settled on this point. It has been repeatedly held that number of injuries never proves the aggression. It is always a matter, which can be determined by various circumstances of the case. May be the persons participating in the fight on their side proved to be more powerful with more prowess than those participating from the other side. Therefore, to lay down a principle that if one party has received more injuries, they are the victims and other one is the aggressor, is fraught with danger and runs counter to the safe administration of criminal justice.
11. In the light of the above discussion, I do not feel that the case against the petitioners is established beyond reasonable doubt and that the plea of self-defence taken by them, stands absolutely excluded. Accordingly, I accept the revision petition, set aside the conviction and sentences of the petitioners and acquit them of all the charges against them. They are on bail, they should be discharged of their bail bonds.