1. This revision application has been riled challenging the judgment passed by the Sessions Judge, Sukkur in Criminal Appeal No.6 of 1989 wherein the sentence awarded to the present applicants by the Joint Civil Judge and F.C.M., Sukkur was maintained but the conviction was altered from section 326, P.P.C. To section 324, P.P.C.
2. Briefly the facts are that F.I.R. Was lodged by complainant/injured Achar Labano at Dubar Police Station on 3-4-1982 at 3-30 p.m. While the incident is alleged to have taken place at noon time on a common path near the village. The allegations in the F.I.R. Are that at the relevant time the complainant was returning to his home after working in the lands when he came across the present applicants who were armed with hatchet and Lathis and challenged the complainant.
3. They gave him hatchet blows on his head and also Lathi blows on his chest and other parts of the body. The complainant raised cries, which attracted the witnesses, namely, P.Ws. Mitho and Haji and the complainant was rescued and present applicants are alleged to have run away. After recording the F.I.R. The A.S.I.P. Rasool Bakhsh took up the investigation and recorded the statements of P.Ws., visited the place of incident, prepared Mashirnama and referred the injured to Medical Officer and arrested the present applicants and put up the challan. He also recovered the hatchet and Lathi used in the commission of the offence. The learned trial Magistrate recorded the evidence of P.Ws. Mitho, Haji and Medical Officer Asif Ali Khokhar but did not record the statements of the Investigating Officer and Mashirs of Vardat, arrest and recovery for the reasons, as shown in the judgment, that they were not appearing in the Court in spite of issuance of repeated summons and also that the P.S.I. Had given up the said witnesses. After conviction by the trial Court appeal was filed before the Sessions Judge who passed the impugned judgment, hence this revision application.
4. I have heard Mr. Habibullah Sheikh, the learned counsel for the applicants. He has submitted that in the present case non-examination of the Investigating Officer by the trial Court has seriously prejudiced the rights of the accused who arc deprived of their right of cross-examination and confronting the Investigating Officer with material contradictions and inconsistencies of the evidence of the P.Ws. He has placed reliance on the case of A.K.M. Raza and others v. State PLD 1958 Dacca 111 wherein a Division Bench of Dacca High Court had held that failure of examination of Investigating Officer by prosecution was a serious defect which could not be cured. He has also placed reliance on the case of Muhammad Sharif v. State 1972 P Cr. L J 1259 wherein a learned Single Judge of the Lahore High Court had held that production of the Investigating Officer and his examination in case was necessary. However, in that case a learned Single Judge of the Lahore High Court declined to direct the retrial of the case for the reason that the accused had already undergone sufficient part of sentence and suffered the rigour of trial for a considerable time. In the case of Panjoo v. State 1991 P Cr. L J 247 this Court has already made such observations.