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(a) Penal Code (XLV of 1860)‑

‑‑ Ss. 323, 324, 325, 326, 148 & 149‑Sudden flare up between parties leading to a free fight in which both sides received injuries‑Apprecia tion of evidence‑‑Eye‑witnesses bearing injuries on their persons Presence of such witnesses cannot be doubted‑Mere presence of injuries on persons of witnesses would not raise any presumption that whatever they stated was whole truth.‑[Witness].

(b) Penal Code (XLV of 1860)‑---

‑‑ Ss. 323, 324, 325, 326, 148 & 149‑Sudden flare up between parties leading to a free fight in which both sides received injuries‑Apprecia tion of evidence‑Witnesses completely silent about injuries on body of accused and giving no explanation at all in that behalf‑Held, it was legitimate to believe that such injuries were received by accused during same transaction.

(c) Penal Code (XLV of 1860)‑

‑‑ Ss. 323, 324, 325, 326, 148 & 149‑Sudden flare up between parties leading to a free fight in which both sides received injuries‑Held, when both parties injured they do not come out with true story and try to minimise one's own part in incident and in that case Court was competent to draw inference flowing from evidence and circumstances about origin of occurrence‑ Each person, participating in such fight would, therefore, be responsible for his own individual act.

(d) Penal Code (XLV of 1860)‑

Ss. 323, 324, 325, 326, 148 & 149‑Sudden flare up between parties leading to a free fight in which both parties injured‑Accused not held to have formed unlawful assembly with common object of committing murder of deceased and for causing injuries to witnesses‑Conviction of accused persons under S. 148 set aside‑Section 149, P. P. C. will have no application in circumstances.

(e) Penal Code (XLV of 1860)‑

Ss. 302, 100, 323, 324, 325, 326, 148 & 149‑Sudden flare up between parties leading to a free fight in which both parties injured Accused not held to have formed unlawful assembly with common object of committing murder of deceased and for causing injuries to witnesses‑Held, requisite intention or knowledge under S.300, P. P. C. having not been proved to be present to mind of accused, conviction of accused altered from S. 302, P. P. C. to one under S. 326, P. P. C. in circumstances.

(f)

Penal Code (XLV of 1860)‑--

‑‑ S. 325/149‑Criminal Procedure Code (V of 1898), S. 439‑ Sudden flare up between parties leading to a free fight in which both parties injured‑As to who caused grievous hurt to injured person not established, conviction and sentence of accused under S. 325/149, P. P. C. set aside.

Mian Mahmood AU Kirmani, Mian Mahmood Kasoori, M. A. Rehman and M. A. Zafar for Appellant.

Shaukat Ali for the State.

Dates of hearing : 21st and 25th February, 1984.

IJAZ NISAR, J‑

Naseer Ahmad 125), Muhammad Bashir (27) and Asghar Ali (34) sons of Edey Khan, Mushtaq Ahmad son of Sultan Khan, Khushi Muhammad son of Chand Khan (28) and Muhammad Nawaz son of Faiz Muhammad (32) have been convicted by the learned Additional Sessions Judge, Faisalabad on 31-1‑1981 under sections 148, 323, 324, 325 and 326/149, P. P. C. for the murder of Muhammad Aslam deceased and for causing injuries to Muhammad Siddique, Bashir Ahmad, Muhammad Shafi and Shah Din P. Ws. and Muhammad Ramzan, Abad Ali Muhammad Akbar and Zulfiqar (not produced) with knives and sticks on 30‑3‑1979 at 8 a.m. at bus stand of Chak No. 24,/G.B. on Satiana/Jaranwala Road.

Naseer Ahmad appellant has been sentenced to death and a fine of Rs. 2,000 or in default to undergo further R. I for 6 months.

Asghar Ali, Muhammad Bashir. Mushtaq Ahmad, Muhammad Nawaz and Khushi Muhammad have been convicted under sections 326/149, P. P. C.

and sentenced to two years' R. I. and a fine of Rs. 1,000 each or in default to undergo further R. I. for 6 months.

The fine, if recovered was ordered to be paid to the legal heirs of the deceased.

The accused have also been sentenced to one year's R. I. and a fine of Rs. 2,000 each or in default to undergo further R. I. for 2 months under section 325/149, P. P. C. The fine, if recovered, was ordered to be paid to Muhammad Shafi P. W.

All the accused have also been sentenced to one year's R. I. under section 324/149, P. P. C. They have further been sentenced to 6 months' R. I. under section 323/149, P. P. C. They may have also been sentenced to one year's R. I. each under section 148, P. P. C.

2. All the sentences of imprisonment were ordered to run concurrently.

3. The appeal, the connected murder reference and the revision filed by Muhammad Asghar appellant against the acquittal of complainant party from the charge under section 148/341/323/149, P. P. C. in the cross‑case shall be disposed of by this order.

4. On the day preceding the day of occurrence at about 3/4 p.m. Muhammad Siddique P. W. 10 boarded Bus No. 1715/FDA from Jaranwala Bus Stand. Bashir Ahmad appellant was driver of the bus while Mushtaq Ahmad appellant was its conductor. When the bus started and had covered a distance of one square, Mushtaq appellant asked Muhammad Siddique P. W. to vacate the seat occupied by him to which he refused, upon which Muhammad Mushtaq slapped him. Muhammad Siddique caught hold of the shirt of Mushtaq Ahmad. In the meantime, Bashir Ahmad appellant stopped the bus and started giving fist blows to Muhammad Siddique but the passengers intervened and rescued him. Bashir Ahmad and Mushtaq appellant pushed Muhammad Siddique P. W. out of the bus. The latter narrated the incident to his brother Muhammad Aslam deceased who said that he would raise the protest to Bashir Ahmad, Mushtaq in that behalf.

On the following day i.e. 30‑3‑1979 at 8 a.m. Muhammad Siddique P. W. 10, Muhammad Aslam deceased, Basbir Ahmad P. W. 11 and Zulifqar (not produced) went to the bus stand of Chak No. 24/G. B. for the said purpose. In the meantime bus No. 1715/FDA driven by Asghar Ali appellant came there. Muhammad Siddique P. W. and his brothers gave a signal to the driver as a result of which he stopped the bus. In the mean time another bus No. 2627/FDA came from Satiana side and stopped there. Mushtaq Ahmad and Muhammad Nawaz appellants got down from it and declared that none be spared. Asghar Ali, Naseer Ahmad, Khushi Muhammad and Bashir Ahmad got down from bus No. 1715/FDA. Mushtaq Ahmad and Khushi Muhammad were armed with Sotas while Muhammad Nawaz, Asghar Ali, Naseer Ahmad and Bashir Ahmad were armed with knives. Naseer appellant inflicted a knife blow in the abdomen of Muhammad Aslam deceased whereafter Asghar Ali appellant stabbed him at his right buttock. Thereafter all the appellants started causing injuries to the P. Ws. In the meantime, Muhammad Shafi, Bashir Ahmad son of Ali Ahmad, Abad Ali, Muhammad Akbar and Muhammad Ramzan (not produced) came there on a Tonga driven by Shah Din P. W. 13 and tried to rescue the injured persons but the appellants also assaulted them. After causing injuries to the deceased and other persons, the appellants left by their respective buses. Muhammad Aslam was taken to the hospital in an unconscious state. After getting himself medically examined Muhammad Siddique P. W. proceeded to P. S. Jaranwala where he lodged the F. I. R. Exh. P. Q. with Muhammad Hussain Head Constable P. W. s, on the same day at 11 a.m. The distance between the spot and the police station being 10 miles.

5. S. I. Muhammad Asghar took into possession blood‑stained clothes of the injured P. Ws. He also took into possession blood‑stained earth from the spot. He prepared injury statement Exh. P. N. and inquest report Exb. P. O. of Muhammad Aslam deceased. He arrested Mushtaq Ahmad and Asghar Ali appellants on 30‑3‑1979. Mushtaq Ahmad appellant produced sota P. 5 which he took into possession through memo. Exh. P. U. As Asghar Ali appellant was bearing injuries on his person, the S. I. got him medically examined. Naseer Ahmad appellant produced knife P. 6 before hire through Exh P. Y. Bashir Ahmad produced knife P. 7 through Exh. P. W., Muhammad Nawaz produced knite P. 9 through memo. Exh. P. Y. and Khushi Muhammad produced sota P. 8 through memo. Exh. P. X. The weapons of the offence recovered from the appellants were not stained with blood.

6. Dr. Major Yousaf Ali P. W. 2 conducted autopsy on the dead body of Muhammad Aslam deceased (35) on 31‑1‑1979 at 10‑50 a.m. and found the following injuries thereon:

(1) A stab wound 5 cm x 3 cm x abdominal cavity, left upper abdomen intestines were lying out.

(2) A stab wound 5 cm X 3 cm X 6 cm on the right buttock.

(3) An incised wound 2 cm x cm x skin deep on palm of left index finger.

(4) An incised wound 5 cm x cm x skin on the palm of left middle finger.

(5) An incised wound 5 cm x cm x skin deep on the front of right knee joint.

All the injuries were ante‑mortem caused by sharp‑edged weapons. Injury No. 1 was sufficient to cause death. Probable duration between injuries and death was 4 to 6 hours and that between death and post‑mortem examination about 24 hours. Exh. P. M. is the post‑mortem report while Exh. P. M. 1 is the diagram of the injuries.

7. Dr. Khurshid Ahmad Khan P. W. 1 examined Bashir Ahmad P. W. 11 and found the following injuries on his person

(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.

< [if supportLists]>(2) A contusion 4 cm x 3 cm on lower eye‑lid on left eye.

< [if supportLists]>(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.

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