MUHAMMAD SULEMAN Versus STATE

The present criminal revision petition has been filed against the judgment, dated 1-10-1992, passed by the Additional Sessions Judge, Toba Tek Singh, whereby he dismissed the appeals of the present petitioners against the judgment, dated 18-8-1992, passed by Malik Muhammad Qayyum, M.I.C., Kamalia, District Toba Tek Singh, convicting them under section 325/34, P.P.C. had awarded them the sentences as follows:--

1.

Muhammad Suleman

Six months' R.I. with a fine of Rs.1,000 or in default thereof six months' S.I.

2.

Muhammad Yousaf and Muhammad Din

One year's R.I. with a fine of Rs.1,000 each or in default thereof to six months' S.I. each.

3.

Asghar Ali

1-1/2 years' R.I. with a fine of Rs.1,000 or in default thereof six months' S.I.

Out of the total fine, if recovered Rs.2,000 was directed to be paid as compensation to injured Latif P.W.

2. The brief facts of the prosecution case as disclosed in the F.I.R. Exh.P.A: are that on 10-9-1990 at 10-15 a.m. in the area of Chak No.714/GB in Square No-45, Killa No.15, at a distance of 6 kilometres from the Police Station Saddar Kamalia, District Toba Tek Singly the petitioners duly armed with deadly weapons on the shouting of Lalkara of Suleman petitioner (empty?handed) caused injuries on the person of Muhammad Yousaf injured P.W.2 with their respective weapons of offence like Sotas and Boholee in furtherance of common intention of all. F.I.R. Exh.PA. was recorded on 12-9-1990 at 7-15 p.m. by Khalid Rasool, Moharrir Head Constable P.W.7 at the instance of Mushtaq Ahmad complainant P.W.1. The motive behind this occurrence is stated to be a dispute/litigation between the parties in the Canal Department. After the usual investigation the police submitted challan in Court.

3. In order to prove its case the prosecution examined eight witnesses in all. Mushtaq Ahmad P.W.1 is the complainant in this case, who deposed according to the contents of the F.I.R. Exh.PA. and proved the F.I.R. He is not an eye-witness of the occurrence. He gave evidence about motive. Muhammad Latif P.W.2 sustained injuries during the occurrence. He gave ocular account of the occurrence. Muhammad Aslam P.W.3 and Ghulam Shabbir P.W.4 are eye-witnesses of the occurrence. They are also recovery witnesses. Both these P.Ws. confirmed and corroborated the testimony of P.W.2 by furnishing ocular account of the occurrence. They also proved recoveries Exh.P.B., Exh.P.G. and Exh.P.D. pertaining to incriminating articles P.1., Boholee, P.2, and P.3 Sotas recovered from the petitioners and deposed accordingly. Sher Muhammad, A.S.I. P.W.6 investigated this case. He gave detail thereof and deposed accordingly. Dr. Abdul Latif P.W.8 medically examined the injured P.W. and found 3 injuries on his person. He proved his medico-legal report. On the basis of X-Ray report he declared injury No.2 as grievous as there was fracture of fourth metacarpal of left hand. M.L.R. Exh.P.E. his opinion Exh.P.E./1 report of the Medical Superintendent Exhs.P.E./2 to 4 are on the record. The remaining two injuries were found simple.

4. When examined under section 342, Cr.P.C. the petitioners denied the charge and claimed themselves to be innocent. They took the plea that they have been falsely involved in this case in collusion with the police on account of enmity. The accused also examined themselves on oath as required under section 340(2), Cr.P.C. They also examined in defence Abdul Latif D.W.1 and Muhammad Latif D.W.2 who supported the defence version.

4. They were convicted and sentenced as stated above, by the learned trial Court and the appeal preferred against the same was dismissed vide impugned judgment, dated 1-10-1992.

5. The learned counsel for the petitioner was heard at length in respect of the contentions that the conviction of the petitioner was not sustainable under the provisions of section 325, P.P.C. as the Radiologist has not been examined to prove the charge under the provisions of said section and that, at the best the case -against the petitioners fell within the ambit of section 323, P.P.C. To support his case, he placed reliance upon 1989 M L D 2712; 1989 M L D 837; 1989 P Cr. L J 1720; 1991 P Cr. L J 1874, 1821, 1862; 1991 P Cr. L J 1081, 1621, 864; 1986 P Cr. L J 2634; 1985 P Cr. L J 902; 1974 P Cr. L J 53 and 1985 P Cr. L J 1288 (D.B.). In all the cases relied upon, it was held that the failure of the prosecution to produce the Radiologist before the trial Court, fails to prove the charge of grievous hurt against the accused, and resultantly the conviction was altered, in the case of every accused, to one under the provisions of section 324, P.P.C. Therefore, as it has been confirmed on behalf of the State that no Radiologist had been produced in the instant case, the conviction of the petitioners are hereby converted to one under the provisions of section 323, P.P.C. Furthermore, taking into consideration that the petitioners had already suffered imprisonment before and after their convictions, the sentences awarded to them are hereby reduced to the period already undergone and the fines imposed on them are hereby set aside.

6. Accordingly, with the terms stated above, the present criminal revision petition is hereby partly allowed and disposed of.

N.H.Q./M-1536/L ?????

Order accordingly.