' Muhammad Sarwar and his brother Goga sons of Mehr Din and their cousin Muhammad Yasin son of Muhammad Bakhsh, milk-sellers have been convicted by Mr. Shaukat Javaid Farooqi, Judicial Magistrate Section 30, Lahore on 22nd January, 1983 under section 407/34, P. P. C. And sentenced to 7 years' R. I. Each and a fine of Rs, 10,000 each or in default to undergo further R. I. For one year. The fine, if realized, was ordered to be paid to Muhammad Younis (injured) P. W. As compensation under section 544-A, Cr. P. C.
2. The prosecution case in brief is that a month before the occurrence Muhammad Ishaq P. W. 1 had lent Rs, 1,000 to Muhammad Sarwar appellant. The latter did not repay the amount despite the demand made by Muhammad Ishaq P.
W. On 5th October, 1979 at about 6-45 p. m. Muhammad Ishaq P. W. 1 accompanied by his father Muhammad Younis P. W. 2 (injured) was present in the house of his maternal uncle Muhammad Yousaf P. W. 3 when Muhammad Sarwar appellant passed in front of the house of Muhammad Yousaf. Muhammad Sarwar P. W. Demanded his money back on which the appellants started abusing him and Muhammad Ishaq also returned the abuses. Both of them grappled with each other. Muhammad Yousaf separated them. Later on when Muhammad Ishaq and his father passed in front of the house of one Muhammad Rafiq, the appellants suddenly reached there. Muhammad Yasin exhorted Muhammad Sarwar and Goga appellants to teach a lesson to Muhammad Ishaq P.
W. For demanding the money and saying this, launched an attack on Muhammad Ishaq and his father Muhammad Younis P. W. Muhammad Sarwar appellant fired a revolver-shot at Muhammad Sarwar hitting him in the abdomen. He fired a second shot which hit Younis P. W. In the chest. Goga and Muhammad Yasin appellants pelted stones and brickbats at the injured P. Ws'. The occurrence was witnessed by Muhammad Yousaf P. W. 3, Muhammad Boota P. W. 4 and Mehraj Din (not produced). On their alarm the appellants fled away. The injured were removed to the Mayo Hospital, Lahore. Muhammad Yousaf reported the matter to the police by making statement Exh. P.
A. At 2-45 a. m.
3. Malik Muhammad Aslam S.-I. Carried out the investigation and got Muhammad Sarwar medically examined on 9th October, 1979.
4. Dr. Muhammad Siddique P. W. 6 examined Muhammad Sarwar appellant and found the following injuries on his person :
(i) A lacerated wound with inflamed edges and pus in wound 2" x 1/2" scalp deep on right side of head 6 c. m. Above ear.
(ii) A lacerated wound 4 x 1/2 c. m. Scalp deep with inflamation and pus on back of head right side of mid-line.
(iii) A lacerated wound 3 c. m. x 1/2 c. m. x scalp deep on left side back of head with inflamation and sepses.
(iv) An abraded contusion 1 x 1 c. m. On outer side of left eye-brow.
(v) Contused swelling on bridge of nose 4 x 3 c. m.
(vi) Diffuse swelling 4 x 4 c. m. Mide back left leg.
(vii) Diffuse swelling 3 x 2 c. m. On back mid left arm.
(viii)Multiple contused swellings on right side of scalp over an area or 9 x 12 c. m.
(ix) A diffuse swelling 10 x 6 c. m. On back of left shoulder.
' All the injuries were caused by blunt weapon within the duration of 3/4 days. Exh. P. H. Is the medico-legal report.
' Dr. Muhammad Aslam P. W. 8 examined Muhammad 'shag P. W. 1 and found the following injury on his person :- ' A penetrating lacerated wound 0. 7 x 0. 7 c. m. (D. N. P.) with inverted margins on the left chest near anterior axillary line about 6 c. m. Below the level of left nipple. There was a light charring of margins and slight blackening around the wound (wound of entry). There was a corresponding hole in the clothes which was marked and signed.
' The injury was caused by a fire-arm within the duration of 6 hours and was grievous in nature. Exh.
P. J. Is the medico-legal report. On the same day he also examined Muhammad Younis P. W. 2 and found the following injuries on his person :-
(i) A lacerated wound 2 x 1/2 c. m. Oblique in direction over occipital region of scalp.
(ii) (a) A penetrating lacerated wound over lower part of left side of chest on lateral aspect near anterior exillary line above the last rib. The margins were inverted. There was slight charring of margins. There was a corresponding hole in the clothes which had blackening around. The hole was marked and signed. Depth was not probed. (wound of entry).
(b) There was a small hard mass about 0.8 x 0.5 c. m. Palpable subcutaneously on the back of chest just a mid line about level of injury No, ii(a).
' Injury No, 1 was caused with blunt weapon while injury No, 2 by a fire-arm within the duration of 6 hours. Injury No, I was simple in nature while injury No, 2 was grievous. Exh. P. K. Is the medico-legal report.
5. The appellants denied the prosecution allegations and attributed the case to enmity. They did not call any evidence in defence. Relying upon the evidence of Muhammad Ishaq P. W. 1, Muhammad Younis P. W. 2, Muhammad Yousaf P. W. 3 and the medical evidence, the learned trial Court convicted and sentenced the appellants as stated above.
6. It is contended that admittedly, Muhammad Yasin and Goga appellants were empty-handed and no specific injury is attributed to them and as such their conviction by application of section 34 was not justified. It is further contended that Muhammad Sarwar appellant was found bearing 9 injuries on his person including 4 on his head which have not at all been explained by the prosecution and lends corroboration to the defence plea that he had acted in exercise of the right of the private defence of his person. It is also stated that non-examination of the Investigating Officer has caused a serious prejudice to the appellants, making the whole trial as illegal.
7. Learned counsel for the State submits that Muhammad Aslam S.-I. Was repeatedly summoned but he could not be served and the trial which had commenced in February, 1980 could not be indefinitely postponed and the trial Court had no option but to close the prosecution's case and decide the case on the material existing on record. He further submits that in hurt cases the examination of the Investigating Officer may not be as necessary or important as in the cases of recovery of stolen property or other cases of similar nature where he is the principal witness. In the present case the recovery of pistol from the appellants which was effected by the said S.-I., has not been taken into consideration by the trial Court because of the non-examination of the Investigating Officer and the trial Court has based conviction on the statements of the injured and other eye-witnesses and the medical evidence and thus no prejudice has been caused to the appellants.
' Muhammad Sarwar was found bearing 9 injuries on his person. The durat:on of the injuries is the same as that of Muhammad Ishaq and Muhammad Younis P. Ws. Three injuries were in the head region which could not possibly be self-suffered. The prosecution is completely silent about these injuries and has given no explanation at all in this behalf. As regards the argument of the learned counsel for the appellants that all the eye-witnesses are closely related inter se and as such should not be relied upon. I do not see much substance in this argument because mere relationship is not ground by itself to discard the testimony of such witnesses if they stand corroborated by other circumstances. In the instant case they not only corroborate each other but also stand corroborated by the medical evidence. The mere fact that they were found bearing injuries on their persons will not necessarily make them truthful witnesses and the Court will be under a legal duty to sift grain from the " chaff. In the present case both sides are injured and it is generally seen that in such situations parties try to minimise their own part and exaggerate the other's and where the parties suppress the true facts, the Court is competent to draw its conclusions as to the origin of the fight, flowing from the evidence and other circumstances.
8. As there is no explanation at all of the large number of injuries suffered by Muhammad Sarwar appellant, I am of the view that the occurrence did not take place in the manner as stated by the injured witnesses but in all probability the fight ensued when Muhammad Sarwar was passing alone in front of the house of Muhammad Yousaf, the maternal uncle of Muhammad Ishaq P. W.
Over the repayment of loan by the latter and when he was belaboured by the injured P. Ws. He in the meantime took out his revolver and tired shots at them causing injuries to Muhammad Ishaque and Muhammad Younis P. Ws.
9. As admittedly Goga and Muhammad Yasin appellant wer empty-handed and no specific brickbat injury is attributed to them, therefore, there presence at the spot appears to be doubtful.
They seem c to have been involved due to their close relationship with Muhammad sarwar the principal accused and as such I accept their appeal, set am& their conviction and sentence and acquit them by giving the benefit of doubt.
' In the circumstance discussed above, the offence committed by Muhammad Sarwar appellant would more appropriately fall under section 308, P. P. C. Instead of section 307, P. P. C. Accordingly I alter his conviction from section 307 to section 308, P. P. C. And sentence him to five years' R.-I. And a fine of Rs, 5,000 (Five thousand) or in default to undergo six months' R. I. He is further ordered to pay Rs, 5,000 (Five thousand) as compensation to the injured P. Ws. Or in default to undergo six months' R. I. The amount of fine and compensation shall be paid to the injured P. Ws. In equal shares. He shall be given the benefit of section 382-B, Cr. P. C. The appeal of Muhammad Sarwar appellant is disposed in the above terms.