Muhammad Hanif and nine others were tried under sections 325/149 and 148, P.P.C. By Magistrate 1st Class, Sheikhupura. I propose to dispose of Criminal Revision No.548 of 1985 and Criminal Revision No. 570 of 1985, through this single judgment.
2. The prosecution case was that at the eventful day, the petitioners waylaid Jamal Din, Muhammad Rafiq, Muhammad Mushtaq, Abdul Hameed, Mst. Bashiran Bibi, Mst. Nawab Bibi and Muhammad Nazir P.Ws. Near Dera Soianwala. They were variously armed and caused injuries to Jamal Din and his companions.
3. To prove its case, the prosecution produced seven witnesses, namely, Muhammad Siddiq, Jamal Din, Mushtaq Ahmad, Mst. Bashiran Bibi, Muhammad Nazir, Abdul Hameed and Mst. Nawab Bibi.
They stated that at the eventful time all the petitioners variously armed had injured them with their respective weapons. Dr. Manzoor Hussain Kazmi was not available, so Mubarik Ahmad Khan, Assistant, was produced to prove the medico-legal reports Exh. P.B. And Exh. P.J. Of the injured witnesses. He stated that the medico-legal reports were in the hands of Dr. Manzoor Hussain Kazmi.
The Investigating Officer was also not produced. The trial Court convicted the petitioners and sentenced them to six months' R.I. Under section 148, P.P.C. And to two years' R.I. Each and a fine of Rs.1,000 each under section 325/149, P.P.C., vide its judgment dated 1-10-1985. The appeal filed by the petitioners was partly accepted on 15-10-1985 and while maintaining the conviction and sentence of the petitioners under section 148, P.P.C., the learned Appellate Court converted the conviction of the petitioners from section 325, P.P.C. To under section 323/149, P.P.C. And sentenced them to six months' R.I. Each and a fine of Rs.1,000 each, in default thereof one month's R.I. Each, with the direction that the fine, if recovered, Rs.1,000 will be paid to each of the injured persons as compensation.
4. The learned counsel for the petitioners submits that the secondary evidence produced by the prosecution in proof of the medico-legal reports was/is inadmissible in evidence because the Process-Server to whom the summons for the service of Dr. Manzoor Hussain Kazmi were entrusted, was not examined by the trial Court.
5. No one has appeared for the State. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that the prosecution did not care to produce the constable to whom the summons for the service of Dr. Manzoor Hussain Kazmi were entrusted and, as such, the secondary evidence furnished by Mubarik Ahmad Khan, Assistant in proof of the medico-legal reports was. Inadmissible in evidence. If the medical evidence is excluded from consideration, the petitioners, perhaps, could not have been convicted under section 323, P.P.C. In this view of the matter, the conviction and sentence of the petitioners cannot sustain.
6. Adverting to the question as to whether or not the case should be sent back for retrial, I feel that in the peculiar circumstances of the case that the occurrence took place in the year 1979 and the petitioners were sent to jail thrice, it may not be proper to direct the retrial after about 12 years of the occurrence. So this revision is accepted, the conviction and sentence of the petitioners is set aside and no order for their retrial is passed. Disposed of accordingly, The connected revision No.570 of 1985, which is at pre-admission stage automatically fails and is accordingly dismissed.