MUHAMMAD YAWAR ALI, J. ~ Briefly stated the facts of the case necessary for the disposal of this petition are that the petitioners (herein) were tried and convicted by the learned Judicial Magistrate Section 30 Bhalwal by means of judgment dated 06.03.2010 and sentenced as under:- {TABLE} Petitioner No. 1 148, PPC Three years' s.I.
324, PPC Seven years s.I and fine of Rs. 5000/-. In default of payment of fine, shall further undergo for fifteen days.
337-F(iii), PPC Payment of Daman Rs. 50,000/- 337-A(i), PPC Payment of Daman Rs. 10,000/- 447, PPC Three months' s.I.
Petitioner No. 2 148, PPC Three years' s.I.
324, PPC Seven years' s.I and fine of R$. 5000/- In default of payment of fine, shall further undergo.
For fifteen days.
337-F(iii), PPC Payment of Daman Rs. 50,000/- 337-A(i), PPC Payment of Daman Rs. 10,000/- % 447, PPC Three months' S.I.
2. All the accused were given benefit of Section 382-B, Cr.P.C. And all the sentences were ordered to run concurrently.
'3. The petitioners alongwith co-accused Muhammad Ashraf filed an appeal wherein the petitioners were acquitted from all the charges, however, conviction under Section 148, PPC was maintained by the learned Addl. Sessions Judge Bhalwal by means of judgment dated 15.06.2010.
4. The learned counsel for the petitioners submits that no serious injury has been attributed either to petitioner No. 1 or to petitioner No. 2. Petitioner No. 1 was attributed a "Sota" blow on the wrist of Mst. Abida Yaseen causing her an injury which was not specifically declared. Petitioner No. 2 was attributed a brickbat blow on the forehead of Mst. Ghulam Fatima and this injury was also not specifically declared. The petitioners were not armed with deadly weapons and all the accused put together being less than five in number could not have been convicted under Section 148, PPC.
5. The learned D.P.G. Has opposed this petition and submitted that both the petitioners caused injuries and were rightly convicted and sentenced under Section 148, PPC. The petitioners have been acquitted of all other charges, however, no exception can be taken to their conviction recorded under Section 148, PPC.
6. A perusal of the record Would show that the learned Appellate Court acquitted both the petitioners of all charges but maintained their conviction and sentence for three years' s.I. Under Section 148, PPC. Section 148, PPC reads as follows:- SECTION 148. PPC.
Rioting armed with deadly weapon: Whoever is guilty of rioting, being armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
7. A contention raised by the learned counsel for the petitioner that the petitioners could not be convicted under Section 148, PPC since they were not aimed with deadly weapons is to be addressed at the first instance. A careful reading of Section 148, PPC would show that an accused can be convicted under Section 148, PPC as long he is armed with any thing which when used as a weapon of offence is likely to cause death. In this case petitioner No. 1 was armed with a "Sota" whereas petitioner No. 2 was armed with a brickbat. The seat and nature of injuries both have to be examined carefully in order to ascertain as to whether or not the provisions of Section 148, PPC are attracted. In the present case no grievous injury was caused to any one by the petitioners. Both the petitioners were attributed injuries which are not specifically declared. Where injuries attributed to the accused are minor and not grievous in nature it can safely be inferred that weapon of offence be it a "Sota" or a brickbat was not wielded with an intention to cause death of the injured person.
An injury which is minor in nature is not intended to cause death of an injured person.- Injuries attributed to both the petitioners were not declared and since they were not likely to cause death, Section 148 PPC would not be attracted to the facts of the case.
8. A bare reading of Section 148, PPC would show that two important factors would constitute the actus reus of the offence namely (i) rioting (ii) while armed with a deadly weapon or with any thing likely to cause death. In order to ascertain the meaning of the term rioting recourse is to be had to Section 146, PPC which envisages use of force or violence by an unlawful assembly. An unlawful assembly in turn has been defined in Section 141, PPC and would essentially consist of five or more persons. In the present case there are only three accused persons hence their getting together for any unlawful act would not constitute an "unlawful assembly" within the ambit of Section 148, PPC as has been held by the august Supreme Court of Pakistan in Liaquat v. The State (PLD 1996 Supreme Court 219). On this score also conviction under Section 148, PPC could not have boon maintained.
9. For what has been stated above, this petition is allowed, sentence of imprisonment of the petitioners awarded by the learned Additional Sessions Judge Bhalwal vide judgment dated 15.06.2010 is suspended and they are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 1,00,000/- each with one surety each in the like amount to the satisfaction of the learned Trial Court.