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Criminal Revision No.384 of 1984, decided on 29th May, 1985.

(a) Penal Code (XLV of 1860)--

---S. 323/324/325/452/148/149--Criminal Procedure Code (V of 1898), Ss.345(7), 435 & 439--Compromise effected between parties Offences under Ss. 148 & 452, P.P.C. not compoundable even with permission of Court--Conviction in such offences, held, could not be set aside merely on basis of a compromise. [ Compromise ] .

Ghulam Muhammad v. Muzammal Khan P L D 1967 S C 317 ref.

(b) Penal Code (XLV of 1860)--

---Ss. 148 & 452--Unlawful assembly--Injured witness abused one of accused on complaint of his son about slap given to him by one accused--Accused accompanied by another accused at relevant time--No evidence available to show as to' how other accused were involved in matter--No evidence available on record- to show that other accused had any grudge against complainant party--Charge framed by trial Court not specifying what deadly weapons accused were carrying--Weapons carried by some accused not found to be deadly weapons--No weapon recovered from accused--Charge brought out by prosecution against accused about forming of unlawful assembly while armed with deadly weapons and in prosecution of their object committing house-trespass, held, was not proved in circumstances.

---Ss. 148 & 452--Unlawful assembly--Dang or Lathi not regarded as deadly weapon.

Fazlul Haq Kari v. The State 1968 P Cr. L J 891 ref.

(d) Penal Code (XLV of 1860)--

---Ss. 323, 324, 325, 148, 149 &'452--Venue of occurrence--Prosecution witnesses suppressing injuries of accused--Counter-version given by accused also suppressed by prosecution--No blood-stained earth secured from alleged place of occurrence--No independent witness produced to prove place of occurrence--Prosecution story that accused assaulted witnesses in their house, held, not proved.

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---Ss. 323, 324, 325 & 1481149/452--Burden of proof --Prosecution failing to establish alleged venue of occurrence--Accused persons also failing to produce any evidence to indicate actual place of occurrence--Such omission, held, of no consequence as prosecution had to prove its case on strength of its own evidence.--[Burden of proof].

(f) Penal Code (XLV of 1860)--

---Ss. 323, 324, 325 & 148/149/452--Venue of occurrence; as alleged by prosecution not proved--Both parties involving in some scuffle in which two persons from accused party and three persons from complainant party receiving injuries--How occurrence actually took place could not be found out--Which of parties was aggressor, also could not be determined--Prosecution failing to prove charge brought out against accused--Accused acquitted in circumstances.

Muhammad Nasrullah Waraich for Petitioners.

Shabbir Lali and Saleem Shad for the State.

Date of hearing: 19th March, 1985.

In this revision petition, the petitioners have challenged their conviction under sections 148/324/452/325 read with section 149, P.P.C. ordered by Magistrate section 30, Shakargarh, District Sialkot, on 22-12-1982 and maintained by the Additional Sessions Judge, Sialkot, though reducing the sentence of imprisonment awarded to the petitioners, vide his order, dated 8-8-1984.

2. Briefly stated the facts leading to the prosecution of the petitioners and their conviction were that on the night between 31-8-1978 and 1-9-1978, Muhammad Mujahid son of Muhammad Siddiq caste Ansari, resident of Mangri, Tehsil Shakargarh, District Sialkot, had stayed back in the village mosque after the Traveeh prayer. He was reciting loudly the name of Allah when Nazir Ahmad and Karim Bakhsh petitioners entered the mosque and asked him to stop the recital, but Muhammad Mujahid took no notice of what the aforementioned petitioners and said and continued with his recital whereupon Karim Bakhsh petitioner gave him a slap on his face. Muhammad Mujahid started crying and after leaving the mosque went to his house where he narrated the incident to his father Muhammad Siddiq. After hearing the narration of the incident, Muhammad Siddiq started abusing Karim Bakhsh. Immediately thereafter, all the six petitioners except Nazir Ahmad who carried knife, armed with Dangs entered the house of Muhammad Siddiq and assaulted him. When Muhammad Mujahid tried to rescue his father, he was also attacked by Abdul Hameed and Abdul Wahid petitioners. Mst. Sabran Bibi wife of Muhammad Siddiq also tried to intervene, but she was given a knife blow by Nazir Ahmad petitioner as a result of which she sustained injury on her hand. She was also given blows with Dan s by Abdul Hameed and Ali Muhammad petitioners. It was only- after Maulvi Ata Muhammad and Nazir Ahmad son of Noor Din intervened that the petitioners left the place of occurrence. All the three injured persons were taken to the hospital where they were medically examined. After obtaining medico-legal certificates issued by the doctor, Muhammad Yusuf, brother of Muhammad Siddiq reached Police Station, Shakargarh at about 3.00 a.m. on 1-9-1978 and got a case registered under section 148/324/452/325/149, P.P.C. After investigation of the case, the petitioners were challaned and sent up for trial.

3. The petitioners did not admit the charge brought out against them. They pleaded that they had been falsely implicated in the case. According to them, the occurrence had taken place at their house when the complainant party had attacked them and had caused injuries to them. Since the police had refused to register a case against the complainant party, they had filed complaint against them in the Court of a Magistrate.

4. The prosecution produced all the three injured persons as witnesses in support of its case. Muhammad Yusuf who lodged F.I.R. and Ata Muhammad, who had rescued Muhammad Siddiq, his son and wife when they were attacked by the petitioners, also appeared as prosecution witnesses to support the prosecution case. Dr. Yusuf Farooq, who examined the injured witnesses, Fazal Husain Moharrir Head Constable, who recorded the formal F.I.R. and Abdul Hameed A.S.I., who partly investigated the case, were also examined by the prosecution.

5. The petitioners in their statements recorded under section 342, Cr.P.C., reiterated that they were falsely implicated in the case. They, however, produced no evidence in defence. The learned trial Magistrate, relying on the prosecution evidence, found them guilty and convicted them under section 148/324/452/325/149, P.P.C. They were sentenced to suffer six months, rigorous imprisonment under section 148, one year's rigorous imprisonment under section 452 and three years' rigorous imprisonment under section 325, P.P.C. They were further directed to pay fine of Rs.300 each, failing which they were ordered to suffer rigorous imprisonment for one month. One-third of the amount of fine, on realisation, was ordered to be paid to the injured persons as compensation.

6. The petitioners preferred an appeal against the order of conviction passed against them. They also challenged the order of the learned trial Magistrate whereby their complaint against the complainant party was dismissed. The learned Addl. Sessions Judge disposed of the petitioners' appeal and their revision petition by one order which is the subject-matter of the present revision petition. The learned Additional Sessions Judge upheld their conviction, but reduced the sentence of imprisonment awarded to them to six months on each count. In the case of Nazir Ahmad petitioner, the sentence of imprisonment awarded to him was reduced to the sentence he had already undergone, but he was directed to pay a fine of Rs.1,000. The petitioners' revision petition was dismissed by the learned Additional Session Judge.

7. This revision petition was admitted to regular hearing, as it was stated that all the three injured witnesses had effected compromise with the petitioners and in the affidavits sworn in by them on 30-9-1984, they stated that they had forgiven the petitioners and as such were no longer interested in pursuing the case against them.

8. Learned Assistant Advocate-General, who appeared on behalf of the State submitted that as the petitioners have been convicted under section 148 and 452, P.P.C., which were not compoundable, their conviction under the said sections would remain unaffected by the compromise entered into between the parties. In view of the provisions of subsection (7) of section 345, Cr. P. C. , the above contention of the learned Assistant Advocate-General is not without substance. Offences under sections 148 and 452, P.P.C. are not compoundable even with permission of the Court. The petitioners' conviction under the said sections, therefore, cannot be set aside merely on the ground that the parties have compromised. In Ghulam Muhammad v. Muzammal Khan PLD 1967 S C 317, the Court had ordered the refund of the amount paid by the respondents to the appellants for compounding offence under section 468, P.P.C. which was not legally compoundable and had heard the appeal on merits.

9. Learned counsel for the petitioners submitted that apart from the fact that the parties had effected compromise as a result of which the petitioners' conviction was liable to be set aside, their conviction was not sustainable on the basis of material available on the record. According to the learned counsel, the petitioners' conviction was liable to be set aside for the reason that no proper charge was framed against them before the commencement of the trial. The essential ingredients of the offence punishable under section 148, P.P.C. were not stated in the charge, nor was it indicated how the provisions of section 149,P.P.C. were applicable to the facts of the case. Learned counsel for the petitioners further contended that there was no reliable evidence on the file to prove that the occurrence had taken place at the house of Muhammad Siddiq (P.W.), because the prosecution had relied mainly on the deposition of interested P.Ws, and had not produced the only independent witness namely Nazir Ahmad son of Noor Din, who according to the prosecution version had also reached the house of Muhammad Siddiq (P.W.) and had rescued the injured from the petitioners. The fact that no blood-stained earth was secured from the courtyard of Muhammad Siddiq where he was allegedly attacked by the petitioners and had fallen down on the ground with bleeding injuries also supported the petitioners' contention that the occurrence had not taken place in the house of Muhammad Siddiq because the place of occurrence was an important fact to be considered by the Court while determining whether offence under section 148, P.P.C. had been proved and whether the petitioners were aggressors or had acted in the exercise of their right of private defence. According to learned counsel for the petitioners, the omission on the part of the, prosecution to examine the police officer who completed the investigation and challaned the petitioners, was fatal to the prosecution case, because the non-recovery of the weapons allegedly used by the petitioners in the commission of the offence and omission to secure blood-stained earth from the place of occurrence could have been explained satisfactorily only by the said officer. It was further pointed out by learned counsel for the petitioners that the prosecution had intentionally suppressed the injuries sustained by Din Muhammad petitioner which showed that the prosecution version, as placed before the Court, was not true.

10. On going through the record in the light of the submissions made by learned counsel for the petitioners, it has been noticed that the prosecution has failed to produce evidence that the petitioners after having formed unlawful assembly, in prosecution of the common object of that assembly, committed house-trespass for causing hurt to the injured P.Ws. According to the prosecution, Muhammad Siddiq (P.W.) B had started hurling abuses at Karim Bakhsh petitioner after his son Muhammad Mujahid (P.W.) had told him about the incident in the mosque. Karim Bakhsh was accompanied by Nazir Ahmad petitioner when he had given a slap on the face of Muhammad Mujahid (P.W.) There is no evidence on the file to show how the other petitioners were involved in the matter. There is nothing on the record to show that the petitioners other than Nazir Ahmad and Karim Bakhsh had any grudge against Muhammad Siddiq (P.W.). One of the essential ingredients of section 148, Cr.P.C. is that each member of the unlawful assembly is armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death. The charge framed by the learned C trial Magistrate against the petitioners does not show what deadly weapons the petitioners were carrying when they allegedly formed unlawful assembly. It is stated in the F.I.R. that Nazir Ahmad petitioner was armed with a knife while the rest were carrying Dan s when they came to the house of Muhammad Siddiq (P.W.).These weapons were, however, not recovered from the petitioners nor were produced in Court at the trial. Dang or Lathi is not regarded as a deadly weapon. Reference in this connection is-made to Fazlul Haq Kari v. The State 1968 P Cr. LJ 891.

11. In view of the above factual position, the charge brought out by the prosecution against the petitioners that they had formed an unlawful assembly and while armed with deadly weapons had in prosecution of their object, committed trespass in the house of Muhammad Siddiq (P.W.), is not proved.

12. The venue of occurrence, according to the prosecution, was the house of Muhammad Siddiq (P.W.) whereas the petitioners' contention is that the occurrence had not taken place there. The submissions made by learned counsel for the petitioners in support of their above contention are not without substance. The very fact that the prosecution has placed only one version of the incident and has not referred to the petitioners' counter-version nor has tried to explain, it, is by itself sufficient to raise doubt as to the truth of the prosecution story. Learned trial Magistrate has tried to explain the above omission on the part of the prosecution in his judgment, but the reasons given by him are based on conjectures and surmises, because no prosecution witness has mentioned the injuries received by Din Muhammad petitioner while making statements in Court. In addition to the suppression of the petitioners' counter the fact that no blood-stained earth was secured from the courtyard of Muhammad Siddiq (P.W.) also raises doubt with regard to the house of Muhammad- Siddiq (P.W.) being the venue of occurrence. No independent witness has been examined by the prosecution to show that the occurrence had taken place in the house of Muhammad Siddiq (P.W.). Ata Muhammad (P.W.) was an interested witness as he was one of the accused in the complaint filed on behalf of the petitioners. There is no doubt that the petitioners have not produced any evidence to indicate the actual place of occurrence, but that omission is of no consequence, as the prosecution has to prove its case on the strength of its own evidence.

13. The prosecution story that the petitioners had assaulted Muhammad Siddiq (P.W.) in his house, has not been proved, but the fact remains that the two parties were involved in some scuffle in which one of the petitioners Din Muhammad and Bashir Ahmad sustained injuries on the petitioner's side and Muhammad Siddiq (P.W.), Muhammad Mujahid (P.W.) and Mst. Sabran Bibi were injured on the complainant side. As the petitioners have not placed their version before the learned trial Magistrate in the challan case, it is difficult to find out how the occurrence had actually taken place. Under the circumstances, it is also not possible to determine which of the parties was aggressor. Be that as it may, the prosecution has failed to prove the charge brought out against the petitioners. The result is that this revision petition is accepted and the order of conviction passed by the learned trial Magistrate against the petitioners, as modified by the learned Additional Sessions Judge in appeal, is set aside and the petitioners are acquitted. As the petitioners have been released on bail, they are relieved of the bail bonds furnished by them.

S.A.

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