1987 PLP 1590 (MLD)

(3) A lacerated wound 1" x 1/3" x muscle deep on tip of, left little finger. (4) A contusion 1" x 1" on right tamporal region with contusion of right eye-lid. Injuries of P.W. Shadi (1) Swelling on the back of right hand, right ring middle and index finger with lacerated wounds x 1/6" x skin deep

2. Injuries of P.W. Dur Muhammad (1) Swelling 2" x 2" on left temporal region. (2) Swelling 1" x 1" on right temporal region. (3) A contusion 4" x 1" on back. (4) Swelling on back of right hand, right ring finger and middle finger. Injuries of P.W.Gulab (1) Vee shape lacerated wounds on parietal- region with each arm 2" x I" x scalp deep. (2) Swelling 2" x 2" on back of left fore arm at middle third. (3) Swelling 3" x 2" on right scapula. (4) Swelling 2" x 2" on back of right forearm at middle third. (5) Swelling 2" x 2" on right gluetal region. Appellants Hazoori, Bachal and Miral also received injuries. Injuries of Hazoori (1) Incised wound 1" x I" x scalp deep on right occipital region. (2) One incised wound 1" x 1" x scalp deep on right parietal region. (3) One incised wound 2" x " x scalp deep on left frontal region of head. (4) Red contusion 2" x 1" on right hand on back side. Injuries of Bachal (1) One incised wound 3" x I" on posterial root of back. Injuries of Miral (1) Incised wound 3" x 1I" x muscle deep on left knee anteriorly. (2) Incised wound " x 1/6" x muscle deep on left index finger. All the P. Ws. have specifically stated that they had not caused any injuries to the accused persons. The accused had received injuries by means of sharp-edged weapons and hard blunt substance. It is also to be noted that there is allegation that Hazoori had fired at the deceased but he had received four injuries. Injury No.4 received by him was declared grievous injury caused by hard and blunt substance. The other injuries were caused by sharp-cutting weapon. Now if Hazoori was armed with gun it is not believable that he would allow the complainant party to cause hatchet and lathi blows. The prosecution story thus about the part ascribed to Hazoori appears to be doubtful. The trial Court has observed that Abdul Hamil who immediately followed the deceased has stated that when they came out of the house Tillan was fired at by the accused persons. It has been observed by the Court that it casts doubt as to whether who amongst the accused had fired upon the deceased. After discussing the evidence the trial Court has come to the conclusion that the accused persons are the aggressors and the complainant party had got right of private defence but this finding is contrary to the facts on record. The complainant party has concealed the material facts. It appears that it was a free fight between the parties which might have been started on the spur of the moment. The appellants could be saddled with the liability if the common intention is shared by all the accused. It must be established that the accused know that they are jointly doing an act with the common intention and when the common intention is missing then the finding of the trial Court is incorrect. In the instant case sections 148 and 149 cannot be attracted. The definition of unlawful assembly has been given in section 141, P.P.C. Under section 146, P.P.C. whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. The essential ingredients of unlawful assembly are wanted in this case, because there was no pre-arranged.-plan and the facts show that the incident has occurred abruptly. The appellants could not be convicted either under section 148 or under section 149, P.P.C. because the prosecution has not brought on record an iota of evidence that the accused persons had formed unlawful assembly and thereafter committed the offence of rioting. In this case the evidence on record does not show as to which of the appellants had caused the injury to the deceased and P.Ws. In the absence of any evidence it is difficult to convict the appellants for their individual acts. The observation of the trial Court that the complainant party had a right of private defence cannot be determined in view of the fact that the incident had occurred outside the house. Both the parties were armed with weapons. Both the parties have withheld the material facts. In such circumstances the conviction recorded against the appellants cannot be maintained. In the case of Janu Khair Muhammad and others v. Crown (reported in I.L.R. Karachi (1943) page 148) it has been observed that in this Province, where it is so common in cases of a fight between two parties to implicate all the male members of a family when only one or other of them may have been concerned in the commission of an offence, it is but a matter of prudence not to accept the oral testimony of interested witnesses as sufficient to convict an accused person, unless the oral testimony is corroborated by other reliable oral evidence or incriminating circumstances.. In the case of Misbahuddin and others v. State P L D 1983 SC 79 it has been observed that in a case of sudden quarrel question of furtherance of common intention would not arise. In the case of Syed Ali Bepari v. Nibaram Mollah and others P L D 1962 S C 502 it has been observed that "we may observe the in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances It was also a case of free fight. The appeal is, therefore, accepted and the convictions and sentences recorded against the appellants are set aside. The appeal was accepted by the short order dated 2-12-1986 and the above arc the reasons for the same. S.A./H-39/K Appeal accepted.