The petitioners, Farman, Noor Hussain and Manzur Hussain were tried, alongwith four others, namely, Wadhawa, Muhammad, Ramzan and Muhammad Sharif by the learned Magistrate, 1st Class, Sialkot. By his judgment, dated 24-4--1974, the learned Magistrate acquitted Wadhawa and Muhammad but convicted and sentenced the petitioners and Muhammad Ramzan and Muhammad Sharif under section 307, read with section 34 of the P.P.C. And sentenced the petitioner to three years' R.I. Each and Muhammad Sharif and Muhammad Ramzan to one year's R.I.
Each; all of them were also sentenced to pay fine of Rs.100 each. On appeal, the learned Additional Sessions Judge, Sialkot, by his judgment, dated 1--8-1978, acquitted Muhammad Ramzan and Muhammad Sharif, set aside the petitioner' conviction and sentences under section 307, read with section 34 of the P.P.C., convicted them under section 325, read with section 34 of the P.P.C. And sentenced them to one year's R.I. Each.
2. The charge against the petitioners was that they had alongwith their co---accused caused injures to Muhammad Nawaz P.W. On 4-10-1971. The first information report of the incident was lodged on 7-10-1971. Muhammad Nawa7 P.W. Was found to have 21 injuries on his person; they were a lacerated wound, four contused wounds on the legs, swellings, contusions and abrasions. Two of them, which had resulted in the fracture of lower shaft of right fibula cover and of right fabula were declared grievous by Dr. Karam Hussain (P.W.7). This opinion of Dr. Karam Hussain was based upon the X-ray reports of Dr. Riaz Ahmad, Radiologist, who was not examined at the trial. Dr. Karam Hussain (P.W.7) said that Dr. Riaz Ahmad, Radiologist, had gone to Libya and he proved the report (Exh.P.F.) of Dr. Riaz Ahmad, based as it was on X-ray pohotographs of the injuries of Muhammad Nawaz P.W. According to Dr. Karam Hussain, Dr. Riaz Ahmad had been his colleague and he knew his handwriting and signatures.
3. .Learned counsel for the petitioners does not challenge the finding of fact that the petitioners had caused injuries to Muhammad Nawaz P.W. In the manner stated by Muhammad Nawaz, Muhammad Shafi and Ghulam Akbar P.Ws. He, however, maintained that it was not properly proved that the two of the injuries of Muhammad Nawaz P.W. Were grievous; according to him, therefore, the offence committed by the petitioners fell under section 323 of the P.P.C. The contention, in my view, is entitled -to succeed. There is no question that in order to prove that two of the injuries suffered by Muhammad Nawaz P.W. Were grievous in nature, it was necessary to prove that those injuries had been X-rayed and that the X-ray photographs showed that the injuries had resulted in fractures. The X-ray photographs had been taken by Dr. Riaz Ahmad, and he it was who could say that the photographs were the photographs of the injuries of Muhammad Nawaz P.W. And if Dr. Riaz Ahmad had left the country, the proper course for laying foundation for secondary evidence was to send summons for service upon Dr. Riaz Ahmad and if the summons were not served, to examine the process server in regard to his non-availability. 1, therefore, agree that t& injuries were not proved to be grievous and, therefore, section 325 of the P.P.C. Was wrongly applied.
4. I, therefore, set aside the conviction under section 325, read with section 34 of the P.P.C. And cannot the petitioners under section 323, read with section 34 of the P.P.C. As observed above, the case was registered on 7-10-1971; the petitioners were convicted after suffering the agony of a long and protracted trial for 3-1/2 years and it took another period of 4-1/2 years to decide their appeal.
In these circumstances, I should think that the ends of justice will be met if the petitioners' sentence is reduced to imprisonment already undergone. I order accordingly.
S.A./F-1,10/L