P L D 1984 Lahore 309 (PLP)

(1) An incised wound 5 cm x 2 cm x through and through, the space between middle and ring‑finger of left hand of its back. (2) A contusion 8 cm x 5 cm on back of right buttock. Injury No. 1 was caused by a sharp‑edged weapon while injury No. 2 with a blunt weapon. Both the injuries were simple in nature. Exh. P. B. is the medico‑legal report. He also examined Muhammad Shah P. W. 12 and found the following injuries on his person :‑ (1) A lacerated wound 6 x 2 cm x scalp deep on top of head, left side. (2) A contused swelling 8 x 5 cm on inner side, left fore‑arm, left ulna bone was fractured. Injury No. 1 was simple while injury No. 2 was grievous. Both the injuries were caused by blunt weapon. Exh. P. C. is medico‑legal report. He also examined Muhammad Siddique P. W. 10 on same day and found the following injuries thereon (1) A stab wound 4 x 1 x 5 cm on back of right buttock. (2) A superficial cut 5 x 1 cm on back of right buttock. The Chadar was torn. (3) A contused swelling 4 x 2 cm on the nose. (4) An abrasion 1 x 1 cm on left cheek. All the injuries were simple. Injuries Nos. 1 and 2 were caused by sharp edged weapon while injuries Nos. 3 and 4 were caused with blunt weapon. Exh. P. F. is a medico‑legal report. On the same day the same doctor examined Shah Din P. W. 13 and found the following injuries on his person :‑ (1) A lacerated wound 6 cm x 2 cm x scalp deep on left side of head. (2) A contused swelling 5 x 3cem on back of left forearm. (3) An abrasion 1 x 1 cm on back of left thumb. (4) A contused wound 5 x 2 cm on back of left chest. All the injuries were simple in nature and were caused with blunt weapon. Exh. P. G. is medico‑legal report. He also examined Asghar Ali appellant at the instance of the police and found the following injuries on his person: ‑ (1) A lacerated wound x cm x skin deep on the left eye‑brow. (2) A contusion 4 cm x 3 cm on lower eye‑lid on left eye. (3) A contusion 4 x 2 cm on left side of head. All the injuries were simple and were caused with blunt weapon. Exb. D. A. is medico‑legal report. He also examined Abad Ali, Muhammad Ramzan, Muhammad Akbar and Zulifiqar P. Ws. (not produced).

8. The appellants pleaded not guilty to the charge and denied the pro secution allegations. All the appellants except Khushi Muhammad and Muhammad Nawaz admitted that Muhammad Siddique P. W. had bean asked to vacate the seat in the bus and on his refusal he was beaten and pushed out of the bus. The appellants stated that the complainant party was guilty of aggression. They, while armed with sotas had assailed them and the passengers of both the buses gathered at the spot and in the melee some of t e passengers caused injuries to Muhammad Aslam and other P. Ws. to defend them. Asghar Ali lodged a case immediately against Muhammad Siddique and others and that they had been falsely implicated by the complainant party on account of previous incident.

9. No evidence was called in defence.

10. Muhammad Siddique P. W. 12 and Shah Din P. W. 13 were examined as eye‑witnesses of the occurrence. All of them are injured witnesses and they deposed about the occurrence. Muhammad Siddique P. W. 10 and Bashir Ahmad P. W. 11 are real brothers of Muhammad Aslam deceased.

11. Relying on the ocular testimony corroborated by the medical evidence and the motive, the trial Court convicted and sentenced the appellants as stated above. The recoveries of weapons of offence were not believed because none of the weapons were found to be stained with blood.

12. Criticizing the judgment, the learned counsel for the appellants has submitted that the prosecution has not come forward with the true story and have suppressed material facts going in favour of the appellants. He states that the prosecution is completely silent about the injuries of Asghar Ali appellant which were of the same duration. He further states that the trial Court has not given proper consideration to the injuries suffered by Asghar Ali appellant. The fact that no blood was found in the buses or on the road side where the buses had stopped throws a suspicion on the genuineness of the prosecution story, he adds.

13. Since the eye‑witnesses namely, Muhammad Siddique, Bashir Ahmad, Muhammad Shafi and Shah Din bear injuries on their persons, therefore, their presence at the spot cannot be doubted. But at the same time mere presence' of injuries on their persons would not raise any presumption that whatever they are telling, is the whole truth. The appellants have not denied the pushing out of Muhammad Siddique P. W. from the bus belonging to them after giving a beating to him on the day preceding the day of the occurrence. The version of the complainant party is that they had stopped the bus driven by Asghar Ali appellant just for making a protest on the incident taking place a day earlier and that in the meantime, another bus came there from which Naseer Ahmad, Bashir, Asghar Ali and Khusbi Muhammad appellants got down. Protests in our rustic Society are not made in a cool and calm manner but in an atmosphere charged with emotion and anger. The complaint party because of the insult meted out to Siddique P. W. must be in high temper, setting their teeth on edges against the appellants. Likewise the appellants who were made to stop in the way by the complainant party could also not be expected to be sober and sane. From the appellants' side Asghar Ali was injured while from the complainants side the deceased and other persons received injuries. The age of the injuries suffered by Asghar Ali coincides with the time of occurrence and the injuries suffered by the complainant party. The eye‑witnesses are completely silent about his injuries and have given no explanation at all in this behalf. It will, there fore, be legitimate to believe that he did receive injuries during tile same transaction. It is generally observed that when both the parties are injured they do not come out with the true story and it is a common feature to minimize one's own part in the incident and in such a case the Court is competent to draw inference flowing from the evidence and circumstances about the origin of occurrence. The circumstances of the case lead to an irresistible conclusion that there was a sudden flare up between the parties leading to a free fight in which both sides received injuries. Thus, each person participating in the fight would be responsible for his own individual act.

14. Since the appellants have not been held to have formed an unlawful assembly with the common object of committing the murder of Muhammad Aslam deceased and for causing injuries to the injured P. Ws. their con viction under section 148, P. P. C. is set aside and section 149, P. P. C. will, also have no application.

15. As from the circumstances discussed above, the requisite intention or knowledge under section 300, P. P. C. is not proved to be present to the mind of Naseer Ahmad appellant we, would, therefore, alter his conviction from section 302, P. P. C. to one under section 126, P. P. C. and sentence him to seven years' R. I. and a fine of Rs. 30,000 (Thirty thousand) or in default to undergo further R. I. for two years with benefit of section 382‑B. Cr. P: C. The amount of fine shall be paid to the legal heirs of the deceased as compensation. The conviction of Naseer Ahmad, Muhammad Bashir, Asghar Ali and Muhammad Nawaz appellants under section 324, P. P. C. is maintained, while that of Mushtaq Ahmad and Khushi Mohammad is set aside. They are sentenced to the imprisonment already undergone by them. The conviction of Mushtaq Ahmad and Khushi. Muhammad under section 323, P. P. C. is maintained. They are sentenced to the period of imprisonment already undergone by them. However, the conviction of the other appellants is set aside. As it does not stand established as to who caused grievous hurt to Muhammad Shafi P. W. 12, therefore, the conviction and sentence of the) appellants under section 325/149, P. P. C. is set aside. The death sentence of Naseer Ahmad is not confirmed. Muhammad Asghar, Muhammad Bashir, Mushtaq Ahmad, Khushi Muhammad and Muhammad Nawaz appellants who are on bail are discharged from the bail bonds.

16. The revision filed by Asghar Ali fails because from the evidence it does not stand established as to which of the respondents caused injuries) to him. M. Z.M. Order accordingly.