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Criminal Appeal No. 15‑F of 1972, decided on 11th December 1973.

(On appeal from the judgment and order of the Peshawar High Court, dated 3‑11‑1970 in Criminal Appeal No. 3 of 1970).

‑‑ Ss. 307 & 148 read with S. 149‑‑Grievous hurt ‑ Unlawful assembly‑Plea of defence put tip by accused‑Patently false and discarded by trial Court and High Court‑‑Circumstances in which complainant party injured leaving no doubt as to their being subjected to aggression‑Account given by prosecution witnesses consistent and nothing damaging elicited from them in cross‑examination‑Evidence of prosecution witnesses read with statements of two of accused and in light of incriminating recoveries, held, brought home guilt to accused beyond reasonable doubt‑Difficult to believe four injuries each measuring 1'X1/4' equidistant being caused by blunt weapons weilded at random in course of an attack on a moving human object and doctor's opinion not correct‑Magistrate accepting prosecution case in toto yet acquitting four accused without assigning any reason and also omitting to apply S. 149 while believing accused party to have fired at complainant and injured P. Ws. with guns‑ Acquittal, in circumstances, set aside.

Syed Ghazanfar Ali Shah Bokhary, Advocate Supreme Court instructed by Abdul Waheed Khmr, Advocate‑on‑Record Supreme Court of Pakistan (since dead) for Appellants.

Peer Masoom Shah, Advocate Supreme Court instructed by Muhammad Nazar Khan, Advocate‑on‑Record for Respondents.

Burhanud Din, Advocate‑General N.‑W. F. P., Peshawar instructed by Amirzada Khan. Advocate‑on‑Record, Peshawar for the State.

Date of hearing‑: 11th December 1973.

The eight respondents herein were tried by Mr. Zahoor Ahmad, Magistrate 1st Class invested with enhanced powers under section 30 of the Pakistan Penal Code on charges under sections 148 and 307 read with section 149, P. P, C. They were accused of forming an unlawful assembly, armed with deadly weapons and in prosecution of the common object of the assembly causing grievous and simple hurt to Gulab P. W. 1 and his sons Ghulam Ghaus P. W. 2 and Muhammad Ismail P. W. 4 by the use of firearms and blunt weapons.

Relying on the ocular evidence furnished by the aforesaid injured P. Ws. and the incriminating recoveries made from the respondents to which reference will be made presently the trial Magistrate convicted and sentenced respondents Nos. 1 to 4 as under

(1) Muhammad Sadiq and Aurangzeb were convicted under section 307, P. P. C. and sentenced to undergo 5 years' R. I. and to pay a fine of Rs. 500 each.

(2) Muhammad Iqbal was convicted under section 325, P. P. C. and sentenced to 2 years' R. I. and a fine of Rs. 200.

(3) Banaras was convicted under section 324, P. P. C. and sentenced to one year's R. I. and a fine of Rs. 200.

A peculiar feature of the case is that while accepting the prosecution case in toto the Magistrate acquitted the remaining four accused namely Sarwar, Yaqub, Said Rasul and Parvez respondents Nos. 5 to 8 of all the charges without assigning any reason. Another error which crept in his judgment was that while believing the prosecution case that "the accused party had fired at the complainant and the injured P. Ws. with guns" he omitted to apply section 149, P. P. C. and convicted respondents Nos. 1 to 4 for their individual acts as mentioned above.

The motive for the attack by the accused on Gulab and his sons was land dispute. Said Rasul respondent owns field No. 284/2 in village Qazian, Tehsil Haripur. Adjacent to it is field No. 290/1 in which Gulab P. W. is a co‑sharer. Both the fields are separated by a water channel. Said Rasul asserted that field No. 290/1 was part of his field No. 284/2 and would not let Gulab and his sons to cultivate it. The dispute was already the subject‑matter of a civil suit filed by Gulab P. W. against Said Rasool P. W. and others when on the 21st July, 1967 the respondents armed with guns and lathis came to field No. 290/1 and tried to forcibly eject Gulab and his son Ghulam Ghaus P. Ws. who were engaged in ploughing it. Gulab and Ghulam Ghaus resisted the demand whereupon Muhammad Sadiq and Iqbal fired a gunshot each injuring Gulab on the vertex of skull and right forearm. Aurangzeb and Banaras fired a gunshot each at Ghulam Ghaus P. W. causing him injuries on the left parietal eminence and front of left thigh. The remaining accused gave lathi blows to Gulab and Ghulam Ghaus who had been fallen to ground by gunshot injuries.

On hearing the alarm Ismail P. W. 4 aged about 12 years another son of Gulab rushed to the place of occurrence with the licensed gun of his father. On the way he was met by the accused who were returning to the village with their respective weapons. Iqbal accused snatched the gun from Muhammad Ismail P. W. while his companions inflicted lathi blows on him.

In the F. I. R. lodged at Police Station Haripur, Gulab set out full details of the occurrence, the motive for the attack and mentioned the names of the witnesses who had witnessed the attack, In the course of investigation four empty cartridges were recovered from the scene of firing. Two of them matched with the gun No. 132900 licensed in the name of Said Rasul respon dent while the third empty cartridge matched with the gun licensed in the name of Razzaq, a close relative of the accused. According to the eye‑witnesses account Said Rasul was armed with a stick while Abdur Razzaq was not an assailant. It appears therefore that the guns of Said Rasul and Abdur Razzaq were used by the other accused. The gun snatched from Ismail P.W. was presented before the Investigating Officer by Muhammad Iqbal respondent. In the opinion of the Fire Arms Expert it was not in working order. From tire person of Iqbal respondent a blood‑stained shirt was also recovered. It was sent to the Chemical Examiner but his report was not produced during the trial. These recoveries amply corroborated the ocular account given by Gulab, Ghulam Ghaus and Muhammad Ismail respondents.

In defence Said Rasul accused pleaded that Gulab and his sons Ghulam Ghaus and Muhammad Ismail were on the day of occurrence engaged in ploughing field No. 290/1 which belonged to him whereupon he told them to vacate the field. In reply Gulab who was armed with Goading stick, Ghulam Ghaus armed with a shot‑gun and Muhammad Ismail with a stick rushed at him and his companion Iqbal. Ghulam Ghaus was about to fire at them when Iqbal pounced upon him and snatched the gun. Apprehending danger to the person of Iqbal and himself he (Said Rasul) fired at Gulab and his two sons from his licensed shot‑gun. Abdur Razzaq, his sister's son also fired at Gulab and his sons from a distance to frighten away the complainant party. Iqbal accused also gave blows to Ismail, Ghulam Ghaus, and Gulab P. Ws. with the butt end of the gun. The same version was adopted by Iqbal. The rest of the six accused contented themselves with bare denial.

The plea of defence put up by the accused was patently false and discard ed by the trial Magistrate and the High Court. The circumstances in which; Gulab, Ghulam Ghaus and Ismail P. Ws. were injured left no doubt that they were the subject of aggression. If Ghulam Ghaus was armed with a gun and had he tried to take an aim at Said Rasul and Iqbal it would not have been possible for Iqbal to pounce upon him and disarm him of the gun. The trial Magistrate accordingly discarded the plea of defence and as mentioned above believing that the accused party had fired at Gulab and his son Ghulam Ghaus convicted respondents Nos. 1 to 4 but acquitted the rest without assigning any reason. The respondents Nos. 1 to 4 filed an appeal in the High Court against their respective convictions and sentences while the State filed an appeal against the acquittal of respondents Nos. 5 to 8. A Division Bench of the High Court allowed the former appeal on the ground that the ocular evidence furnished by Gulab, Ghulam Ghaus, Safdar and Ismail had been dis believed by the trial Magistrate against respondents Nos. 5 to 8 and that all the male members of the accused family were implicated in the case.

Leave to appeal was granted to Gulab and Ghulam Ghaus P. Ws. as it appeared that the learned Judges of the High Court had not applied their own minds to the evidence brought on the record in support of the prosecution case and were wrong in making the supposition that the trial Magistrate had disbelieved the evidence given by the eye‑witnesses in respect of respondents Nos. 5 to 8.

We have examined the evidence including the testimony of Gulab P. W. 1, Ghulam Ghaus P. W. 2, Safdar P. W. 3 and Ismail P. W. 4. The account it given by them is consistent throughout and nothing damaging was elicited in, their cross‑examination by the defence counsel. Their evidence read along with the statements made by Said Rasul and Iqbal accused under section 342, Cr. P. C. and the incriminating recoveries mentioned above brought home the guilt to the accused beyond any reasonable doubt.

Syed Ghazanfar Ali Shah, who appeared for the respondents drew our attention to the statement of Dr. Alam Khan P. W. 9. He had examined the injuries of Gulab and Ghulam Ghaus P. Ws. According to this doctor, besides a number of blunt weapon injuries each had suffered one gunshot wound. It was argued that the account given by the eye‑witnesses that each one of respondents Nos. 1 to 4 had effectively fired at Gulab and Ghulam Ghaus was proved to be false by the medical evidence.

We have examined the nature of the injuries suffered by Gulab and Ghulam Ghaus and do not agree with the opinion given by the doctor. Injury No. 1 found on the person of Gulab was "four lacerated wounds each. 1" X 1/4" scalp deep on the vertex of skull". Similarly injury No. 1 found on the person of Ghulam Ghaus was "a lacerated wound 1" X 1/4" scalp deep left parietal eminence''. It is difficult to imagine that four injuries each ' measuring 1" X 1/4" equidistant as shown in the pictorial sketch drawn by the doctor, were caused by blunt "capons weilded at random in the course of an attack on a moving human object. The opinion given by the doctor that Gulab and Ghulam Ghaus had suffered one gunshot injury each was therefore not reliable. In our opinion both had suffered two gunshot injuries as was deposed to by the, eye‑witnesses.

It was next contended by Syed Ghazanfar Ali Shah that Yaqub, Said Rasul, Sarwar and Parvez respondents Nos. 5 to 8 were aged persons who were not expected to join in the attack on the complainant party. We find that besides fire‑arms, blunt weapons were used in causing injuries to Gulab, Ghulam Ghaus and Ismail P. Ws. These were undoubtedly caused by some of the respondents Nos. 5 to 8. However, as their guilt has been doubted concurrently by both the Courts below we do not feel called upon to interfere with their acquittal though we have no doubt about their presence at the scene of attack on the complainant party.

In the result we allow the appeal against respondents Nos. 1 to 4 set aside their acquittal by the High Court and restore the convictions and sentences passed on them by the trial Magistrate.

The appeal against respondents Nos. 5 to 8 is dismissed.

Appeal partly allowed.

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