' The provisional jurisdiction of this Court has been invoked to set aside the conviction and sentence ordered against the petitioners by Mr. Anwar Ali Malik, learned Magistrate 1st Class, Bahawalnagar, by means of his judgment, dated 12-1-1983 and the judgment of the learned first Appellate Court, dated 2010-1984, who had maintained the conviction and sentence of both the petitioners under sections 325 and 342 of the P.P.C.
2. The facts of this case are that Muhammad Akbar, the complainant, had cultivated Charal crop (kind of fodder) which was going to be pilfered by Ali Sher. He was obstructed by Muhammad Akbar whereupon a number of persons assembled there. Muhammad Akbar complainant was injured and his two teeth were broken. He reported the matter to the police and the petitioners and their accomplices were challaned in this case. All the accused were convicted and sentenced by the learned trial Court, but the learned first Appellate Court has convicted Ali Sher and Sajwara. He has acquitted Shari, Bashir, Allah Ditta, Sardara and Amir alias Kabir.
3. In the F.I.R. 'Muhammad Akbar has not named any person, who had injured him. Even when he appeared as P.W.1, he did not state in his examination-in-chief as to who had given a Soti blow on his teeth, which were broken. When subjected to the cross-examination, he clarified that Ali Sher had given him the blows on his teeth and arm with his Lathi. This fact has been belied by Muhammad Ismail P.W.2, the brother of the complainant, who has stated that Sajwara had given both the blows to Muhammad Akbar complainant. The stand of the petitioners was that the complainant party had cut their wheat crop for which they were taken to the police station.
Muhammad Ishaq P.W.3, who is also the brother of the complainant, has deposed that Sajwara caught hold of Hafiz Akbar and Ali Sher gave the blows on his elbow and teeth.
4. The statement of Dr. Capt. Abdul Hameed, Medical Offficer P.W.5, is significant. He had found injuries Nos.3 and 4 as simple. They were on the arms of the complainant. Injury No,1 is on the teeth and he had obtained the report of the Dental Surgeon Exh.P.D.3, which evinces a grievous injury on the teeth. The Dental Surgeon, was not examined, although his statement was very necessary. The petitioners have been prejudiced by the non-production of the Dental Surgeon, who could have been asked as to how and why the teeth had been broken. His report shows that a number of teeth of Muhammad Akbar were missing from the upper and lower jaws and there was a deposit of tartar in the teeth. The gum of the complainant does not appear to have been injured. It is a serious infirmity that the Dental Surgeon, was not brought in the witness-box to prove his report.
5. The petitioners pleaded to be innocent. Initially in the F.I.R. No person has been named, who had injured Muhammad Akbar complainant. Secondly, Muhammad Ismail P.W.2 has named Sajwara, who had given injuries to A Muhammad Akbar and Muhammad Ishaq P.W.3 comes with another story that Sajwara caught hold of the complainant and Ali Sher injured him. The grievous injury has also not been proved in accordance with the provisions of law.
6. In the circumstances of the case, it has not been established as to who had injured the complainant. The eye-witnesses are three real brothers and corroboration in this case is lacking.
The learned first Appellate Court has relied upon the recovery of Sota from Sajwara, which was not blood-stained and this recovery is not enough to connect either Sajwara or Ali Sher with this crime.
On N account of the serious infirmities in the prosecution evidence, I accept this criminal revision and give, benefit of doubt to both the petitioners and acquit them of the charge framed against them. The petitioners were released on bail. They stand discharged of their bail bonds.
Revision .