1976 PLP 452 (SCMR)

MUHAMMAD HALEEM; J________ This is a petition for special leave to appeal against the order dated 23-1-1976 of a learned Single Judge of the Lahore High Court, Lahore by which Criminal Revision). 1032 of 1975 was rejected. The present incident is a sequal of a quarrel between Riaz on of Shah Nawaz and Ghulam Jaffar belabored Riaz and Shahnawaz gave beating to Ghulam Jafar who reported the incident to his brothers Rajasab, the first petitioner herein, which led to harboring of ill will Shahnawaz was ploughing his land early in the morning, Rajasab and Shah Alam avenged their grievance by belaboring shahnawaz who returned to the house and narrated the incident to the other members of the family whereupon his womenfolk abused them. The petitioners thereafter entered the courtyard of the house of Shahnawaz, armed with sticks and brick bats. Rajasab threw a brick bat at Mst. Afzal (P. W. 5) which struck her on her face. Arshad (P. W. 3) and Daftar (P. W. 4), nephews of Shahnawaz, inter vened whereupon Abbas and Banks, gave stick blows to Arshad and Daftar respectively. Shah Alarm also caused stick blows to Daftar while Najeeb Khan threw stones at him. To defend themselves Arshad and Daftar throw stones which struck Shah Alam and Najeeb. Thereafter the petitioners left the courtyard. The F. I. R. was lodged by Amir Nawaz at Police Station Pind Sultani, District Campbellpur. The injured P.W.s were medically examined. Daftar had 4 simple injuries which were caused by a blunt weapon. Arshad had 3 simple injuries which too were caused by a blunt weapon. Tow injuries with blunt weapon were found on Mst. Afzal as a result of which one of here teeth was broken and it was, therefore, opined to be grievous while the order was simple. On Shahnawaz six injuries, were noticed which were reported to be 50 or 60 hours old. Petitioners Najeeb Khan and Shah Alam also had injuries on their person. At the triat except for the petitioners Shah Alam and Najeeb the other pleaded that they had been falsely involved. The defence plea of the other two being that on the fateful day Shah Alam and Shah Nawaz abused each other over a quarrel between their children. (At Peshiwela P. Ws. Daftar and Shaknawaz armed with sticks, and Arshad with stones attacked Shah A1am whRe hi6 was sitting in the house of Najeeb. Those armed with sticks gave blows with it to Shah Alam and Arshad threw stones at Najeeb. Beth of them, to defend themselves, threw stones at the P. Ws. Daftar, Shah Nawaz and Arshad. Mir. Aural who was passing that way was hit by one of the stones thrown by Arshad. This version was supported by D. W. Mian Dad. The trial Court accepted the ocular testimony and rejected the defence plea by judgment dated! 25‑9‑1975, the petitioners were accordingly convicted under section 148 and 325 read with 149 of the Pakistan Penal Code. On the first count they were sentenced to one year s rigorous imprisonment and on the second to two years rigorous imprisonment and to pay fine of Rs. 500 and in default to undergo further rigorous imprisonment for 6 months. The appellate Court by judgment dated 24-11-1975. upheld the convictions and sentences of the petitioners and rejected the appeal. The petitioner assailed their convictions and sentenced by preferring the Revision and a learned Single Judge while maintaining the convictions reduced the sentient on the first count to 6 months and on the second to one years rigorous imprisonment and the fine to Rs, 250 and the sentences in default to 3 months. It was urged by the learned Counsel for the petitioners that the Courts below had wrongly rejected the defecne version which if believed would show that it were the prosecution witnesses who had attacked the petitioners and therefore they had the right of self defence. The trial Court while rejecting the plea held that the defence plea was not put to any prosecutions witness in cross-examination and it was for the first time given out by Shah Alam and Najeeb while being examined under section 342 CR.P.C. As such it was an afterthought. As to the evidence of the D.W. Mian witness it was not possible to check its veracity and therefore no reliance could be placed or his testimony. The trial Court accepted the ocular testimony. In coming to this conclusion the trial Court had fairly appraised the evidence while convicting the petitioners. The appellate Court re‑appraised the evidence and held that the defence plea was not probable in the facts and circumstances of the case and thus upheld the judgment of the trial Court. The learned Single Judge also held that the defence plea on the face of it was unbelievable, for, it failed to explain as to how the P. Ws. could have suffered the kind of injuries at the hands of the two unarmed petitioners. Concluding the learned Judge held that even if he were to disagree with the assessment of the evidence, it would not be proper to pre‑empt the functions of the Courts below in the exercise of revisional jurisdiction. The Courts below had applied their mind and upon a fair scrutiny of the evidence rejected the plea. As such this Court will not embark upon re‑appraisal of the plea to which no exception can be taken. The next contention urged was that section 148, P. P. C. was not attrac ted as it cannot be said that the petitioners had formed an unlawful assembly within the meaning of section 141, P. P. C. This contention is untenable for the prosecution evidence discloses that they had trespassed into the house of Shah Nawaz duly armed and in the course of rioting caused injuries to P. Ws. Therefore, they had the common object to cause injuries and the case was covered by the third clause of section 141, P. P. C. For these reasons the petition has no substance and is dismissed. Petition allowed.