Since the two Criminal,, Revision No.731 of 1980 filed by Zaheer Khan and No.807 of 1980 filed by Muhammad Latif petitioners arise from one and the same order, therefore, I propose to dispose of these two revisions through single judgment.
2. The petitioners were tried under section 307/34, P.P.C. By Magistrate Section 30, Gujranwala, on the charge of murderous assault on Muhammad Sharif and Muhammad Nazir P.W s.
3. According to the prosecution case, Muhammad Latif inflicted spear blow on the back of the chest of Muhammad Sharif P.W.1 and Zaheer Khan P.W. Gave Dang blow to Muhammad Sharif and Muhammad Nazir P.W s. The prosecution produced 6 witnesses in proof of the charge against the petitioners. Muhammad Nazir P.W.2, Muhammad Sharif P.W.1 and Muhammad Siddiq P.W.3 are the eye-witnesses of the occurrence. They have supported the allegations against the petitioners. The doctor who had examined the injured P.W s. Was not produced, instead, Gulzar Ahmad, Dispenser, P.W.6 was produced to identify the handwriting and signatures of the doctor on the medico-legal reports. The rest of the evidence is more or less of formal nature. The respondents/accused denied all the incriminating circumstances. The trial Court convicted them under section 307/34, P.P.C. And sentenced them to 3 years' R.I. Each. On appeal the conviction was upheld but the sentence was reduced from 3 years to one year's R.I. Each, hence these revisions.
4. Since after hearing the learned counsel for the parties, I feel inclined to accept these revisions on account of legal infirmity in recording the statement of Gulzar Ahmad, Dispenser P.W.6. So I need not enter into the merits of the case and discuss the evidence. I find that the constable to whom the summon was entrusted for the service of Dr. Muhammad Yousaf, was not examined by the trial Court. So, the statement of the Dispenser in proof of the handwriting of the doctor and the medico- legal reports could not have been recorded as secondary evidence. The medical evidence produced by the prosecution including the medico-legal reports has to be excluded. There can be no two opinions that it is not possible under the law to maintain the conviction of the petitioners/accused I under section 307, P.P.C. Without legal proof of the medico-legal reports of the injuries of the P.W s. Pursuant to the above discussion, the conviction and sentence of the petitioners are set aside. Now, the further question arises as to whether or not the case be remanded for retrial. In the peculiar circumstances of the case that the occurrence took place in the year 1972; that the petitioners were arrested; they remained in jail before they were released on bail by the trial Court. On their conviction by the trial Court they were taken into custody and sent to jail; they were again released on bail by the Appellate Court; on the rejection of their appeal, they were again taken into custody and sent to jail and lastly they remained more than two months in jail where they were released on bail by the High Court. So I do not desire to direct retrial of the petitioners. These revisions are disposed of accordingly.