1. ' The petitioners, Mian Muhammad, Noor Hussain, Abdul Wahid, Fazal Hussain, Ghulam Hussain and Elahi Bakhsh, have moved this criminal revision (Criminal Revision No,32 of 1984) under section 439 Cr.P.C. Against the judgment of their conviction and sentence. Rana Muhammad Bashir Ahmad, Judicial Magistrate Section 30, Attock, vide his judgment dated 30-7-1983 proceeded to convict and sentence the petitioners to undergo one year's R.I. Each under section 148, P.P.C. And three years' R.I. Each under section 307/149, P.P.C. Plus a fine of Rs, 1,000 each or in default thereof to suffer further S.I. For six months each. It was observed that in case of recovery of fine, a sum of Rs3,000 shall be paid to the three injured witnesses, namely, Mian Muhammad, Sardar Khan and Dalil Khan in equal shares under section 544-A Cr.P.C. The sentences were. Ordered to run concurrently.
2. Regarding Muhammad Hussain and Wali Muhammad, accused, the case against them was found doubtful and as such by giving them the benefit of doubt, they were acquitted vide the same judgment. The petitioners went in appeal which was heard and partly allowed by the learned Sessions Judge, Attock vide his judgment, dated 19-12-1984. It was observed that the petitioners have been correctly convicted and sentenced under section 148, P.P.C.. However, the conviction and sentence of the petitioners under sections 307/149, P.P.C. Was altered to one under section 324/149 P.P.C. And they were sentenced to suffer 1-1/2 years' R.I. Each plus a fine of Rs,500 each and in default thereof to suffer further six months' Si. Each. It was observed that in case of recovery of fine, half of it, shall be paid in equal shares to the injured witnesses, namely, Mian Muhammad, Sardar Khan and Dalil Khan. The revision petition of the complainant, Sardar Khan, for enhancement of the sentences of the petitioners was dismissed by the learned appellate Court vide the same judgment.
3. ' The complainant, Sardar Khan, has also filed Criminal Revision No,39 of 1984 for suitable enhancement of the sentences of the petitioners. I propose to dispose of both the revision petitions together by this consolidated judgment..
2. Sardar Khan, complainant, lodged F.I.R. Exh.P.A. At Police Station Tamman. Tehsil Talagang, on 22- 9-1982 at 2-30 p.m. Saying that he and his brother Dalil Khan were cutting grass in their land near Dhok while Mian Khan PW was busy in collecting chaff from the stack at about 7-00 a.m., when Noor Hussain, Fazal Hussain and Abdul Wahid armed with hatchets and Ghulam Hussain, Elahi Bakhsh, Wali Muhammad, Muhammad Hussain and Mian Muhammad armed with rotas were passing through their land with a pair of bullocks towards their agricultural land. Mian Muhammad, father of the complainant, stopped the accused-party from passing through their land. Noor Hussain, petitioner abused the complainant and also gave a hatchet blow which landed on his head. Similarly, Fazal Hussain and Abdul Wahid also gave hatchet blows on the head of Mian Muhammad P.W. On receipt of the injuries, he fell down. The complainant and Dalil Khan P.W. Came there in order to rescue their father whereupon Abdul Wahid opened an attack and caused injuries to Dalil Khan with hatchet. Noor Hussain gave a hatchet blow to Dalil Khan who also fell down on account of the injuries. Thereafter the two injured, were also given thrashing by sota blows by Ghulam Hussain, Elahi Bakhsh, Muhammad Hussain and Mian Muhammad. The complainant tried to rescue his father and brother whereupon he was also given hatchet injuries by Noor Hussain.
4. Fazal Hussain inflicted injuries from wrong side of his hatchet which landed on head- of the complainant. The complainant too fell down on receipt of the injuries. An alarm was raised by the injured P.W.s which attracted Jehangir Khan and Noor Muhammad P.W.s. Who were ploughing their fields nearby. They came and rescued the injured witnesses.
5. ' The motive for commission of the crime is that about 15 to 20 days earlier, some unknown person cut the tongue of the bullock of accused Mian Muhammad who had a strong suspicion that the act of cutting the tongue of the animal had been done by the complainant party and as such they had a grudge against them. Keeping this grudge in view, they committed the crime. The prosecution in order to prove its case produced Sardar Khan P.W.1, Dr. Syed Mahboob Shah P.W.2, Muhammad Banaras A.S.I. P.W.3, Mian Muhammad P.W.4, Muhammad Saddique M.H.C. P.W.5, Dalil Khan P.W.6 and Jehangir Khan P.W.7. The petitioners while making statements under section 342, Cr.P.C., except Noor Hussain petitioner, denied their participation in the occurrence and took the plea that they were innocent. Their plea was that they had falsely been implicated in the case. Mian Muhammad petitioner while answering a question stated that tongue of his bullock was cut by Mian Muhammad P.W. The plea taken by Noor Hussain petitioner is that he alongwith Sher Muhammad Sapraj Khan, Abdullah and Sultan Muhammad, was going on a thoroughfare where Mian Muhammad, Sardar Khan and Dalil Khan P.Ws. Intercepted and thereupon a quarrel between them ensued. The petitioners also produced Muhammad Khan D.W.1, Abdullah D.W.2, Noor Muhammad D.W3 and Hayat Muhammad D.W.4 in support of their defense version.
3. The learned counsel contends that the medical evidence does not support the ocular account.
6. He forcefully argues that there is not an iota of evidence available on record to connect the petitioners with commission of the crime. He submits that the Investigating Officer was not produced in the case and that no secondary evidence could be recorded to prove the writings of the said Investigating Officer. In this connection, the learned counsel has placed reliance on Fazal Muhammad and another v. The State 1970 SCMR 405, Muhammad Ashraf and another v. State 1972 P Cr. L J 1259 Muhammad Siddique and another v. The State 1974 P Cr. L J 180, Muhammad Aslam alias Achhoo v. The State 1976 P Cr. L J 443 and State v. Muhammad Rafique 1984 P Cr. L J
961. On the basis of the non-production of the Investigating Officer in the case, the learned counsel contends that the conviction and sentence of the petitioners is liable to be set aside in law. Mr. Muhammad Nawaz Abbasi, learned Assistant Advocate-General while placing reliance on the rule laid down in Qamar v. The state PLD 1979 Lah. 436 contends that this is a fit case which should be remanded for re-trial of the petitioners on account of the legal flaw as said above. The same is the view expressed by Malik Muhammad Jafar, learned counsel for the complainant.
4. I have heard the learned counsel for the parties and have perused the record.
7. ' Mian Muhammad P.W. Was medically examined by Dr. Syed Mahboob Shah, Medical Officer P.W.2 on 22-9-1982 at 1-00 p.m. And following injuries were found on his person:-
(1) An incised wound 1" x 1/8" on the middle of head.
(2) An incised wound 2" x 1/8" x bone deep on the right side of head.
(3) An incised wound 1-1/2 x 1/6" x bone deep on the right back side of head.
(4) A contusion 1" x 1/2" below the right eye.
(5) A contused wound 1-1/2" x 1/8" on the right ring finger.
(6) A contusion 3" x 1" on the back of left forearm upper wrist.
(7) A contusion 5" x 1-1/2" on the back of right chest.
(8) Multiple contusions on the chest back side and right side.
8. ' Injuries Nos.1, 2 and 3 were caused with sharp-edged weapon and rest were caused with blunt weapon. All the injuries were simple in nature.
9. ' On the same day, the said Doctor medically examined Dahl Khan P.W. And found the following injuries on his person:-
(1) An incised wound 1-1/4" x 1/4" x bone deep on the back of head on right side.
(2) An incised wound 1-1/2" x 1/8" x bone deep on the left side of head.
(3) A contusion 3" x 1" on the left side of head.
(4) An abraided area 1/8" x 1/8" on the nose.
(5) A contusion 1-1/2" x 1/2" on the left shoulder.
(6) Multiple contusion on the back of left arm.
(7) Multiple contusion on the back of left elbow joint.
(8) A contusion 2" x 1/2" on the back of chest upward.
(9) A contusion 2-1/2" x 1/2" on the back of chest left side, under the injury No,8.
(10) An abrasion 2" x 1/8" on the back of right forearm.
(11) An abrasion 1" x 1/2" on the abdomen on left side.
(12) A contusion 3" x 1" on the left side of abdomen.
(13) An abrasion 1-1/2" x 1/8" on the front and inner aspect of right thigh.
10. ' In the opinion of the Doctor, injuries No,1 and 2 were caused by sharp-edged weapon whereas the remaining injuries were caused by blunt weapons. All the injuries were declared simple in nature.
11. ' Sardar Khan, complainant was also medically examined by the said Doctor on the same day and following injuries were observed on his person:
(1) An incised wound 1" x 1/8" x bone deep on the left side of head.
(2) A contused wound 1-1/2" x 1/8" x bone deep on the left side of head.
(3) An abrasion 2" x 1/8" on the right shoulder.
(4) A contusion 3" x 1" on the left shoulder.
(5) A contusion 2" x 1/2" on the right side of chest.
(6) A contusion 2" x 1/2" on the back of chest on right side.
(7) A contusion on the back of right thigh.
12. ' It was opined by the Doctor that injury No,1 was inflicted with sharp-edged weapon while the remaining injuries were caused with blunt weapon. All the injuries were simple in nature.
13. ' The moot point between the parties is whether on account of non-production of the investigating officer, the conviction and sentence passed against the petitioners can stand in the eye of law or not? The contention of Mr. Altaf Elahi Sheikh, learned counsel for the petitioners is that in view of the law laid down by the superior Courts, it is not desirable at this belated stage to send back the petitioners to the trial Court for their re-trial. It is submitted that the occurrence took place as back as 22-9-1982. On this basis he states that re-trial of the petitioners should be refused. However, he does not challenge the conviction of the petitioners as recorded by the learned appellate Court.
14. Learned counsel has also brought to my notice that so far the petitioners Mian Muhammad, Ghulam Hussain and Elahi Bakhsh have suffered in Jail for a period of one and a half months as under-trial prisoners. Similarly, they remained in Jail for about fifteen days after their conviction. In my considered view, Asad Ullah Khan, Investigating Officer was a necessary witness in the case.
15. There is nothing on record to show that he was not at all available in Pakistan. Thus, the trial Court did not fulfill the necessary requirement of law before allowing permission to lead econdary evidence in the case in order to prove the writings of Investigating Officer. The admitted position in the case is that the Investigating Officer was wrongly dropped from the list of the witnesses for no adequate reasons as envisaged by the law on the subject. All the learned counsel agree that there was no justification to drop the Investigating Officer in the case. In my view, he was an essential witness in order to show as to where the occurrence took place by proving the site-plan. This site- plan prima facie shows that the occurrence took place on the path and definitely not in the agricultural field of the complainant party. The evidence deposed by the prosecution witnesses discloses that the occurrence took place on their land when they raised objection that the accused party should not pass through their fields. Thus, it was necessary that the Investigating Officer should have appeared in Court to prove the site plan Ex.P.W. 5/A in order to clear the doubts about the place of occurrence. The judgment cited by the learned Law Officer is based on different facts and not applicable to the facts and circumstances of the case in hand. Each case has to proceed according to its own peculiar facts and circumstances. Respectfully following the rule laid down in Fazal Muhammad and another v. State 1970 SCMR 405, Muhammad Ashraf and another v. The State 1972 P. Cr. L J page 1259, Muhammad Siddique and another v. The State 1974 P Cr. L J 180, Muhammad Aslam alias Achhoo v. State 1976 P Cr. L J 443 and State v. Muhammad Rafique 1984 P Cr. L J 961, I do not feel any hesitation in setting aside the conviction and sentence of the petitioners. In my considered view, prosecution did not succeed to prove the actual place where the occurrence took place. This creates doubt as to where occurrence happened. Benefit of doubt, under the circumstances has to be given to the accused. Consequently the revision petition is allowed and conviction and, sentences of the petitioners are set aside. They are on bail and shall be discharged from their bail bonds.
16. ' In view of my findings above, the revision petition (Criminal Revision No,39 of 1984) does not arise and as such the same is dismissed.
17. Revision .