1989 PLP 1803 (PCRLJ)

(10) An abrasion 9 c.m. x 3 c.m. on the back side of the left scapula. (11) An abrasion 13 c.m. x 3 c.m. on the back side of the lower part of the right chest. (12) An abrasion 12 c.m. x 2‑1/2 c.m. the back side of the middle of the right chest. According to this Medical Expert, injuries Nos. l and 5 were infected by a sharp‑edged weapon and the rest of the injuries were caused by a blunt weapon. The injuries of Naazir Hussain were X‑rayed and injuries Nos.2 and 4 were found to be grievous as both of his ulna bones were found to have been fractured after the X‑ray examination.

6. On the same day, Muhammad Sarwar, Muhammad Nawaz and Abdul Rashid, the sons of Naazir Hussain were examined and the following injuries were found on the person of each of them:‑ (1) An abrasion 6 c.m. x 2 c.m. on the lateral aspect of the left arm. (2) An abrasion 8 c.m. x 1‑1/2 c.m. on the back side of the right scapula. (3) An abrasion 8 c.m. x 2 c.m. on the back side of the left scapula. (4) An abrasion 8 c.m. x 2 c.m. on the lateral aspect of the left thigh. (1) An abrasion 5 c.m. x 2‑1/2 c.m. on the back side of the upper half of the left forearm. (2) An abrasion 10 c.m. x 4 c.m. on the back side of the left scapula. (3) Three small abrasions on the back and lower part of the right chest. (4) An incised wound 3 c.m. x 1‑1/2 c.m. x 1‑1/2 c.m. on the back side just below the right ankle joint. (1) A contused wound 2 c.m. x 1 c.m. on the right side of forehead. (2) An abrasion 6 c.m. x 3 c.m. on the back side of the upper third of the left forearm. All of them sustained simple injuries. This Medical Expert, when cross -examined, has clarified that he also examined Muhammad Ashraf son of Jan Muhammad appellant on 25‑7‑1979 and found four injuries on his person. He has added that injury No. 1 was caused by a sharp‑edged weapon and the others were caused by a blunt weapon. Muhammad Ashraf was admitted in the hospital on 25‑7‑1979 and was discharged on 26‑7‑1979. Dr. Abdul Saboor has stated that the injuries were X‑rayed by Dr. Manzoor‑ul‑Haq, Medical Officer, Haroonabad, whose signatures appear on X‑ray films. Dr. Manzoor‑ul‑Haq Radiologist had not been examined as a prosecution witness.

7. After the completion of the investigation, the challan of the six appellants was submitted and as a sequel to the impugned trial, they were awarded the afore‑mentioned punishment.

8. Ali Muhammad P. W. 1 who poses to be an eye‑witness of this incident has named five appellants, namely, Aslam, Akram; Ashraf, Sarwar and Asghar and does not know the name of the sixth accused. He lives in Chak No.82/5‑R and has stated that he was irrigating his fields located in square No.40, two acres away from the abode of the parties. In his cross‑examination, he has admitted that he had stated that he was working at the land when the incident took place.

9. Ahmad Din P. W. 2 has deposed that he was coming from Haroonabad Town and was proceeding to his village when he saw this incident. He could not name two appellants and has named Aslam, Akram, Ashraf and Sarwar. Ali Muhammad P. W. 1 and Ahmad Din P. W. 2 are the chance witnesses and I little believe their statements.

10. Muhammad Sarwar P. W. 3 is an injured witness, who has stated that Aslam had hurled invectives when he was forbidden from listening the radio in a high tune and Aslam called his brothers and all the appellants came there, who had hatchets and Dangs. The statement of this witness is palpably wrong because Muhammad Aslam is stated to have been armed with a hatchet only and others had Sotas.

11. Muhammad Rashid P. W. 4 is the son of Naazir Hussain and was injured during this incident. He has corroborated the fact that all the appellants came there and injured his father. He does not state, who has specifically injured him. Muhammad Nawaz P. W. 5 is another injured witness, who has stated that he was injured by Aslam, who had given a hatchet blow on his ankle and Sarwar had given him a Sota blow. In his cross‑examination, he has stated that Aslam had used the reverse side of the hatchet. But according to Dr. Abdul Saboor P. W. 9, the injury on the ankle was caused from the sharper side.

12. Naazir Hussain, whose ulna bones had been fractured, appeared in the witness‑box as P. W.

7. He has stated that he was abused by Aslam when he admonished the latter to listen the radio in a low voice and Aslam called his brothers, who attacked him and all of them injured him and his sons Muhammad Nawaz, Rashid and Sarwar.

13. Muhammad Boota P. W. 6, the complainant, appears to have reached the venue of the crime late when his father was lying unconscious. Muhammad Boota was not injured during this incident.

14. Mir Muhammad Ahmad, the Investigating Officer, who was examined as P. W. 10, is stated to have written the F.I.R. Ex. P.L. and effected the recoveries. He has stated that he had got registered a case at the instance of Muhammad Ashraf appellant, who was injured and both the cases were investigated. He denied the suggestion that with the exception of three appellants, the others were unnecessarily challaned.

15. The appellants, when examined under section 342 of the Cr. P. C., have explained that Muhammad Aslam and. Muhammad Ashraf were present during this incident and the remaining appellants had unnecessarily been roped in this case and the incident took place when Naazir Hussain gave a hatchet blow to Muhammad Ashraf and, in self‑defence, he was injured by them.

16. According to the F.I.R., Muhammad Aslam appellant was alone when a petty rumpus started when Muhammad Aslam was listening the radio in a high tune. When Muhammad Aslam appellant called his brothers Muhammad Akram, Muhammad Asghar and Muhammad Anwar, they were four in number. Subsequently, Muhammad Ashraf and Muhammad Sarwar came there and the fact that all the appellants were the members of an unlawful assembly appears to be incorrect. The incident flared up at the spur of the moment and it cannot be said that all the appellants had committed this act, in furtherance of their common object of an unlawful assembly. Their vicarious liability fixed by the learned trial Court is, therefore, erroneous and they were not guilty of rioting. So the sentence awarded to them under section 148 of the P.P.C. and their vicarious liability fixed under section 149 of the P.P.C. is quashed.

17. Naazir Hussain and his sons Sarwar, Nawaz and Rashid were injured during this incident. Naazir Hussain received two injuries with a sharp‑edged weapon and Nawaz received one injury with a sharp‑edged weapon and the other injuries are stated to be simple in nature caused by blunt weapons. In all, there are three injuries with a hatchet and eighteen injuries with a blunt weapon. It appears that a free fight took place between the parties, who live next door to each other and in a free fight; the individual act of each of the appellant is to be examined.

18. The ulna bones of Naazir Hussain were fractured. But it may be noted that examining him did not prove the report of the Radiologist. In such a situation, in Ghula and another v. The State 1985 P Cr. L J 801, Muhammad Ramzan and 2 others v. The State 1985 P Cr. L J 825(1) and Malla and 7 others v. The State 1985 P Cr. L J 985, it was consistently held that in the absence of the proof of the X‑ray report by a Radiologist, the grievous injury could not be legally proved.

19. Mr. Abdul Rehman Tayyib, Advocate, learned counsel for the complainant, has referred to Muhammad Khan and others v. The State P L D 1964 (W.P.) Lah. 177 and has contended that the entries in the register of Government X‑ray Expert were per se admissible in evidence under section 35 of the Evidence Act. But it may be noted that the X‑ray report was not got exhibited in this case and, in this manner, the grievous injuries have not legally been proved and they shall be considered as simple injuries for the purposes of conviction ands sentence.

20. It has been represented by the learned counsel for the appellants that the provisions of section 364(2) of the Cr. P. C. have not been complied with, as the learned trial Court did not certify under his own hand that the examination was taken in his presence and hearing and that it contained a full and true account of the statement made by the accused. He has cited Sultan Zari v. The State 1986 P Cr. L J 1723 and has argued that the trial in this case is vitiated.

21. Conversely, Mr. Abdul Rehman Tayyib, Advocate, learned counsel for the complainant, has cited Hazrat Jamal and another v. The State P L D 1958 SC (Pak.) 383, in which it was adjudicated that failure of the Presiding Officer to prepare memorandum of depositions of the witnesses when the evidence was recorded by some other person was an irregularity curable under section 537 of the Cr. P. C. and an irregularity not to keep the memorandum of the accused statement was held to be curable under section 533 of the Cr. P. C. Applying the analogy of this precedent to the instant case, I am of the view that the irregularity committed by the learned trial Court in not appending p the certificate under the statements of the appellants does not vitiate the trial and, such an irregularity is curable under section 533 of the Cr. P. C.

22. It has been pointed out that, in the F.I.R., the injuries of Muhammad Ashraf appellant have been suppressed and all the sons of Jan Muhammad have been roped in this case. From the evidence on the file. it appears that Muhammad Asghar and Muhammad Anwar appellants have not been specially named as having caused any specific injury. In this manner, I accept the appeal of E Muhammad Asghar and Muhammad Anwar appellants and acquit them of the charges framed against them. They stand discharged of their bail bonds as they, were released on bail.

23. Muhammad Aslam is found guilty under section 324 of the P.P.C. for causing hatchet blows to Naazir Hussain and Muhammad Nawaz P.W. He is convicted under section 324 of the P.P.C. and is ordered to suffer one year's R.I. on each count. He is also fined Rs.200 on each count or to suffer two months' R.I. in default thereof on each count. Muhammad Akram, Muhammad Sarwar and Muhammad Ashraf appellants had caused simple injuries to the injured persons and they are convicted under section 323 of the P.P.C. on each count and are awarded six months' R.I. on each count for injuring Naazir Hussain and his three sons. All of them are also fined Rs.100 each on each count or to suffer S.I. for one month each on each count. The sentences shall run concurrently and all the appellants are extended the benefit of section 382‑B of the Cr. P. C. Muhammad Aslam, Muhammad Akram, Muhammad Sarwar and Muhammad Ashraf appellants may be taken into custody forthwith and sent to jail to serve their respective terms of sentence.

24. The criminal revision, which was intended for the enhancement of sentence, fails in view of the above observations and stands dismissed. N.H.Q./M‑1374/L Appeal partly accepted.