' IJAZ NISAR, J.--Naseer Ahmad (25), Muhammad Bashir (27) and Asghar Ali (34) sons of Edey Khan, Mushtaq Ahmed 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 (302), 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 Zulfiyar (not produced) with knives and sticks on 30-3-1979 at 8-00, a.m. at bus stand of Chak No, 24/G.B. on Satiana Jaranwala Road.
' Naseer Ahmad appellant has been sentenced to death under section 302, P.P.C. 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 Wave 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 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 Ahmed 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 Ahmed. 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 and Mushtaq in that behalf.
' On the following day i.e, 30-3-1979 at 8-00 a.m. Muhammad Siddique P.W,10, Muhammad Aslant deceased, Bashi!' Ahmad P.W.11 and Zulfiqar (not produced) went to the bus stand of Chat( 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 meantime another bus No, 2627/FDA came from Satiana side and stopped there. Mushtaq Ahmed and Muhammad Nawaz appellants got down from it and declared that none be spared. Asghar Ali, Naseer Ahmed, Khushi Muhammad and Bashir Ahmad got down from bus No, 1715/FDA. Mushtaq Ahmed and Khushi Muhammad were armed with Sotas while Muhammad Nawaz, Asghar Ali, Naseer Ahmad and Bashir Ahmed were armed with knives. Naseer appellant inflicted a knife blow in the abdomen of Muhammad Aslam deceased whereafter Asghar All appellant stabbed him at his right buttock. Thereafter all the appellants started causing injuries to the P.Ws. In the meantime, Muhammad Shaft, Bashir Ahmed son of All Ahmed, Abed 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.3 on the same day at 11-00 a.m. The distance between the spot and the police station being 10 miles.
5.
8.1. 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 Exh. P.O. of Muhammad Aslam deceased. He arrested Mushtaq Ahmad and Asghar Ali appellants on 30-3-1979. Mushtaq Ahmed appellant produced Sota 9.5 which he took into possession through memo. Exh. P.U. As Asghar Ali appellant was bearing injuries on his person, the Si. got him medically examined. Naseer Ahmad appellant produced knife P.6 before him through Exh. P.Y. Bashir Ahmad produced knife P.P. through Exh. P.W. Muhammad Nawaz produced knife P.9 through memo. Exh. P.Y. and Khushi Muhammad produced Sota 9.8 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 c.m. x 3 c.m. x abdominal cavity, left upper abdomen intestines were lying out.
(2) A stab wound 5 c.m. x 3 c.m. x 6 c.m on the right buttock.
(3) An incised wound 21 e.m. x 1/2 c.m. x skin deep on palm of left index finger.
(4) An incised wound 5 c.m. x 1/2 c.m. x skin deep on the palm of left middle finger.
(5) An incised wound 5 c.m. x 1/2 c.m. 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 Ahmed Khan P.W.1 examined Bashir Ahmad P.W. 11 and found the following injuries on his person:--
(1) An incised wound 5 c.m. x 2 c.m. x through, and through the space between middle and ring finger of left hand of its back.
(2) A contusion 8 x 5 c.m. 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 Shafi P.W.12 and found the following injuries on his person:--
(1) A lacerated wound 6 x 2 c.m. x scalp deep on top of head, left side.
(2) A contused swelling 8 x 5 c.m. 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 the same day and found the following injuries thereon:--
(1) A stab wound 4 x 1 x 5 c.m. on back of right buttock.
(2) A superficial cut 5 x 1 c.m. on back of right buttock. The Chadar was torn.
(3) A contused swelling 4 x 2 c.m. on the nose.
(4) An abrasion 1 x 1 c.m. on left cheek.
' All the injuries were simple. Injuries No, 1 and 2 were caused by sharp-edged weapon while injuries Nos. 3 anti 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 c.m. x 2 c.m. x scalp deep on the left side of head.
(2) A contused swelling 5 x 3 c.m. on back of left fore-arm.
(3) An abrasion 1 x 1 c.m. on back of left thumb.
(4) A contused wound 5 x 2 c.m. 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 1/2 x 1/2 c.m. x skin deep on the left eye-brow.
(2) A contusion 4 c.m. x 3 c.m. on lower eye-lid on left eye.
(3) A contusion 4 x 3 c.m. on left side of head.
' All the injuries were simple and were caused with blunt weapon. Exh. D.A. is medico-legal report.
' He also examined Abad Ali, Muhammad Ramzan, Muhammad Akbar and Zulfiqar P.Ws. (not produced).
8. The appellants pleaded not guilty to the charge and denied the prosecution allegations. All the appellants except Khushi Muhammad and Muhammad Nawaz admitted that Muhammad Siddique P.W. had been 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 the passengers caused injuries to Muhammad Aslam and other P.Ws. to defend them. Asghar All 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 All 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 All 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 other 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 Khushi 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 complainant 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 All was injured while from the complainants side the deceased and other persons received injuries. The age of the injuries suffered by Asghar All 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, therefore, be legitimate to believe that he did receive injuries during the 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 su,c1den 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 tine appellants have not been held to have formed an unlawful assembly with tie common object of committing the murder of Muhammad Aslam decease and for causing injuries to the injured P.Ws their conviction 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 326, P.P.C. B 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 All and Muhammad Nawaz appellants under section 324, P.P.C. is maintained, while that of Mushtaq Ahmad and Khushi Muhammad is set aside. They are sentenced io 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 appedants is set aside.
As it does not stand established as to who caused grievous hurt to Muhammad Shall P.W.12, therefore, the conviction and sentence 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 Ahmed, 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.