' IJAZ-UL-HASSAN KHAN, J.---Appellant Fazal Akbar has filed Criminal Appeal No.211 of 2004, challenging the judgment dated 12-3-2004, rendered by learned Additional Sessions Judge/Izafi Zilla Qazi, Swat, by which the appellant was convicted under section 302(b), P.P.C. And sentenced to suffer life imprisonment and to pay compensation to the extent of Rs.1,00,000 under section 544- A, Cr.P.C. To the legal heirs of Anwar Ali deceased or in default thereof to undergo six months R.I.
Benefit of section 382-B, Cr.P.C. Was accorded to the appellant. However, Fazle Ghani and Fazal Aziz co-accused were extended benefit of doubt and acquitted of the charge. Rehman Shah, father of the deceased has also filed Criminal Revision No.76 of 2004 for the enhancement of sentence of the respondent from life imprisonment to death with payment of `Diyar and to recall benefit extended under section 382-B, Cr.P.C.
2. Briefly stated the prosecution case is, that on the day of occurrence i.e. 19-9-2001, at 17-15 hours Anwar Ali, victim was on the way to `Jandar' for grinding wheat. On reaching the site of occurrence he was confronted by Fazle Ghani and his sons Fazal Aziz and Fazle Akbar alias Babar. They started beating Anwar Ali. Fazle Akbar hit Anwar Ali with a hot substance with which he sustained injuries on the eyes. A dispute over construction of a wall was stated to be the motive for the occurrence.
The report was made in Saidu Sharif Hospital, Swat. The injured was examined by Dr. Amjad Iqbal (P.W.8) and found to have sustained Incised wound 1/2 cm (R) temporal region skin deep between right lateral canthus of the eye. Due to precarious condition, the injured was referred to Hayatabad Medical Complex, Peshawar on 20-9-2001. The injured expired on the following day in Neurosurgical Unit, Hayatabad Medical Complex, Peshawar. The dead body was brought to Swat, where it was subjected to post-mortem examination by Dr. Sahibzada Saeed Jan (P.W.5) Medical Officer, Central Wing, Saidu Sharif, Swat.
3. The prosecution in order to prove its case produced 12 witnesses in all. The accused in his statement under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. He led no evidence in defence. At the conclusion of the trial, accused was convicted and sentenced as mentioned and detailed above.
4. Mr. Iqbal Hussain Khalil Advocate, for the appellant at the very outset invited our attention to order-Sheet No.24 dated 18-9-2003 of trial Court and maintained that neither Dr. Muhammad Riaz, Registrar/ Neurosurgeon, Hayatabad Medical Complex, Peshawar, under whose treatment Anwar Ali deceased remained or any other conversant with his handwriting has been examined by the trial Court, which has resulted in manifest injustice. The learned counsel maintained that the impugned judgment is not in accord with the requirements of section 367, Cr.P.C. And it is a fit case for remand.
5. Contrarily Mr. Muhammad Zafran Advocate, learned counsel for the State assisted by Mian Iqbal Hussain Advocate for the complainant supported the impugned judgment and maintained that prosecution had produced overwhelming evidence on record to implicate the accused with the commission of crime and the matter has been dealt with in a proper manner and no case for remand is made out. In this regard, reliance was placed on Qazi Sirajuddin Misbahul Islam and 3 others (PLD 1997 SC 14); The State v. Bakhtiar and another (PLD 1969 Pesh. 335); Muhammad Akbar v. The State (1994 MLD 1289 Lah.); Muhammad Shafi convict-petitioner v. The State (1973 PCr.LJ 1066 Lahore) and Muhammad Usman and 2 others v. The State (1991 MLD 17).
6. As stated above, Anwar Ali, injured was initially treated at Swat but due to critical condition of the injured, he was referred to Hayatabad Medical Complex, Peshawar. The victim remained under treatment of Dr. Muhammad Riaz Registrar, Incharge Nerosurgery Unit. The victim could not survive and expired on the following day. Dr. Muhammad Riaz is stated to have left service and gone to Saudi Arabia. The Chief Executive Hayatabad Medical Complex was directed time and again to depute a Medical Officer well-conversant with the handwriting of Dr. Muhammad Riaz to prove report but that was not done and consequently the accused was convicted and sentenced as mentioned above. This omission on the part of the learned Court has materially prejudiced the interest of the appellant and resulted in complete miscarriage of justice. Agreeing with the submissions of learned counsel for the appellant, we accept this appeals, set aside the impugned judgment and remand the case to the leaned trial Judge for re-writing judgment. The office is directed to send record of the case to the Court concerned without loss of time.
' As the appeal has been accepted and remanded to the learned trial Court, therefore, the Criminal Revision for enhancement of the sentence has become infructuous. Disposed of accordingly.