P L D 1977 Quetta 32 (PLP)

M. A. RASHID, J.

On third April, 1967 a fight took place among Habibzai and Peer Alizai sections in a Chur near the village of Habibasi, of Tehsil Pishin. Five days previously a dispute had arisen about the boundaries of a piece of land between the same parties. Intervention of Mullas and elders averted an ugly situation and the dispute was settled when Barkhurdar swore on the holy Qur'an that the disputed piece belonged to him and his co-sharers P. Ws. Abbas, Mazullah and Kamal. The details of incident on 3rd April, as given in the complaint are that P. W. Barkhurdar was preparing land for cultivation of potatoes when deceased-accused Lai iv4ohammad approached him and asked him as to why he was cultivating land on the other side of the boundary pillar. P. Ws. Abbas, Mazullah and Kamal were also present in the nearby fields. It may be mentioned that according to the complaint, these boundary pillars were erected by the accused party in disregard of the decision arrived at five days previously, and subsequent to it at the instigation of one Malik Yousaf Peer Alizai. Hot words were exchanged between deceased Lai Mohammad and P. W. Barkhurdar. When rest of the twenty-four accused persons, listed in the complaint, appeared on the scene all armed with Chhuris, knives, lathis and Belchas and attacked Barkhurdar, who fell after receiving Chhuri injuries at the hands of Lai deceased and accused Mir Mohammad. P. W. Abbas and his two brothers went forward when they were also attacked. Abbas's intestines came out as a result of knife and Chhuri injuries inflicted by Lai deceased and his son Abdullah. P. W. Mazullah was also injured and fell down while P. W. Kamal succeeded in escaping to the village in spite of the injuries sustained by him. The accused party, fearing the appearance of other co-villagers of the injured party, escaped from the scene. P. W. Mazuliah regained consciousness and put tile intestines of Abbas back. At that stage people from the village arrived with cots and the injured persons were first removed to Gulistan Hospital and later to Civil Hospital, Quetta. On 28th April 1967 the injured party filed a joint complaint before Assistant Commissioner. Pishin. But it seems investigation had separately started. This is evident from Annexure "A'", filed with the memo. of appeal. It is a report from Nsib-Tehsildar, Gulistan, to Assistant Commis sioner, Pishin and seems to be the earliest written report of the incident. However, after the completion of investigation two counter-cases were filed in the Court of Assistant Commissioner and First Class Magistrate, Pishin. Later the cages were transferred to the Court of Additional District Magistrate, Quetta. In the challan submitted to the Court only ten persons were arraigned as accused as against 25 listed is the, complaint. The challaned accused included the present appellant and his deceased father. An application was moved by the complainant party before the learned Additional District Magistrate, Quetta, requesting for withdrawal of case against accused Ghazni and Abdul Razaque. These two and other accused, Shah Ghasi, were dis charged under section 253, Cr. P. C. vide order passed on 8th July, 1968. The rest of the seven accused were committed for trial before the Court of Session. The counter case against Abbas and his companions was tried by the learned Additional District Magistrate in which Abbas and Mazullah were convicted for offences under section 3261 P. P. C. respectively. But on appeal they were acquitted. In the present case the learned Sessions Judge, Quetta came to the conclusion that the prosecution evidence established the guilt of deceased Lal and Abdullah only. It was however found that an offence under sections 321 and 326, P'. P. C. was made out. Other accused persons were therefore acquitted by him. Accused Lal Mohammad had expired during the pendency of the trial and therefore Abdullah accused was the only person who was punished. He was sentenced under section 326 P. P. C. to three years' rigorous imprisonment with a fine of .Rs. 1,000 or in default to a further rigorous imprisonment of six months. He was also sentenced under section 324, P. P. C, to one year's rigorous imprisonment. Abdullah appeals against such conviction. The first objection taken by Haji Sarfaraz Khan, the learned counsel for the appellant, is that when the learned trial Judge disbelieved the evidence of the same set of witnesses as against the acquitted accused, it was not proper for the Judge to have convicted the appellant on their testimony. The principle of indivisibility of witnesses, is not universally true and the learned Advocate-General, while relying upon Tawalb Khan v. The State (PLD1970SC 13) contended that grain has always to be sifted from chaff, and if a witness is found to be falsely deposing in one respect its whole evidence is not to be discarded. The next objection taken is that after having reached the conclusion that a free fight had taken place it was incumbent upon the learned trial Judge to have determined the question as to who was the aggressor. Coupled with it is the fact of injuries sustained by deceased Lai Mohammad and appellant Abdullah. Though Lal Mohammad claimed to have suffered a bullet injury at the hands of Abbas, but it was not believed by the learned Sessions Judge, on the authority of Medical evidence. Now the appellant, on the authority of Annexure "A" to the memo. of appeal wants to streng then the stand taken by Lal Mohammad deceased at the trial. Annexure "A" as explained earlier is a report of Naib-Tehsildar Gulistan to Assistant Commissioner, Pishin. In this report, which was recorded on the day of incident, the Naib-Tehsildar mentions the bullet injury to Lal Mohammad deceased and states that it is imbeded in his arm in the first place this document was not produced at the trial. At this stage, when it is not properly proved it cannot be looked into. Secondly it was always open to the defence to examine the Naib-Tehsildar. They did not do so. And lastly Dr. Nagibullah who examined Lal deceased was not asked any question if he found any bullet injury on the person of Lal deceased. Otherwise the injuries sustained, by Lal Mohammad, as is shown in the evidence of the Doctor, do not indicate any bullet injury. Therefore the allegation of bullet injury sustained by Lal deceased is not established on record. But the fact remains that he sustained as many as thirteen injuries' including fracture of left hurnerus bone while his son Abdulah had four injuries caused by blunt and hard weapons, The prosecution has not explained the circumstances under which these injuries were sustained by the appellant and his father. On the other hand all the prosecution witnesses state, in unison, that no injuries were sustained by these two persons. But in the face of independent and uninterested medical evidence it is clearly established that they were injured, at about same time as injuries were sustained by the complainant party. It was for the prosecution to explain these injuries. Absence of any explanation would react against the prosecution case. At the same time, in the absence of such explanation, it was incumbent upon the learned trial Judge to examine the question if, in the circumstances of the case, it could reasonably be inferred if a plea of self-defence could be extended to the accused persons, specially Lal Mohammad and his son. Reliance in this behalf can be placed upon Ghazi Khan v. The State (P L D 1965 Quetta 33 ). For determining this question it was necessary from the learned trial Judge to have examined the entire evidence, including the stand taken by the accused. Here the story put forward by defence was that Lal Mohammad deceased end his son were going towards his land then Lal Mohammad was called by Abbas, to the chur, through his son Sahib Jan. There he was asked as to why he was interfering with the lands of Abbas, whereupon hot words were exchanged and Abbas fired a pistol shot at him. Companions of Abbas, namely Noor Shah, Barkhurdar. Kamal, Mezullah and Abdur Rauf attacked him with Belchas and fell him down unconscious. The report of the pistol shot attracted his son. Abdullah was also attacked with Belchas. He however ran away from the scene and later brought Syeds and Ibrahimzais to the scene. That part of this story that these two persons were attacked with Belchas finds support from the medical evidence; the presence of incised wounds on the person of Lai Muhammad deceased is net inconsistent with the use of Belcha as a weapon of offence by the attacker. This evidence should have been placed in juxtaposition with the prosecution evidence and the effect of the whole weighed. This principle is laid down by their Lordships of the Supreme Court in Shamshad's case (P L D 1963 S C 740) and by the Federal Court in Safdar Ali's case (P L D 1953 F C 93). If after doing so the Court comes to the conclusion that the cafe put forward by the defence can be reasonably possible, then, as held by their Lordships of the Supreme Court, that "the effect of creating a reasonable doubt regarding the truth of the prosecution case cannot be avoided, and this could not be without effect upon the finding as to the guilt of the accused." In the present case a reasonable possibility of an attack on deceased Lal Muhammad Cannot be ruled out. He suffered as many as thirteen injuries sad this shows that his attackers had comparatively a free hand when they dealt with him. This circumstance alone would be enough to create doubt about the truthfulness of the prosecution story and benefit of all doubts goes to the accused alone. Haji Sarfraz also claims that after having come to a conclusion of a free fight between the parties, and not having determined as to who was the aggressor it was incumbent upon the trial Judge to acquit the accused persons. He relies upon Gulab Amer Singh v. Emperor (A I R 1941 Lab. 333). In this case one person was killed and several others were injured in a fight between two panics. There was no proof, in the cross-case, as to which party was the aggressor. It was held that all the accused must be acquitted. I would go by the law laid down in this case and hold that in the absence of a finding as to who was the aggressor the accused was entitled to acquittal. In view of these conclusions I need not deal with other grounds taken by the learned counsel for the appellant. I would therefore accept the appeal and order acquittal of the accused. His bail bonds stand discharged. Appeal accepted.