' This criminal revision assails the judgment of the learned Additional Sessions Judge, Rahimyar Khan dated 8-6-1991 whereby the conviction and sentence awarded to the petitioner under section 324, P.P.C. passed by the trial Court was reduced to one year R.I.
2. Briefly the prosecution case is that on the night of 15-9-1985 Muhammad Ramzan complainant (P.W.1) was present at Chiraghia Iron Store situated in Basti Kamdar where he was serving. At about mid-night the petitioner came to him and stated that he could not reach his house at odd hours and he had come to stay for a night. The petitioner was previously known to P.W. 1 and they went to sleep on a Charpai and started talking. During the course of talk the petitioner was annoyed and abuses were exchanged between them. During the exchange of hot words, the petitioner and P.W.1 grappled with each other. Abdul Aziz petitioner attacked and injured P.W.1 with a knife, which hit on his right arm and shoulder. P.W. 1 raised hue and cry, which attracted P.W.2 Muhammad Sarwar and P.W. 3 Ghulam Sabir. While witnessing the occurrence, P.Ws. tried to apprehend the petitioner, but he escaped. The complainant reported the matter to the police, who after incorporating a report Exh. PA prepared injury statement and got the petitioner medically examined. After the receipt of medical report F.I.R. No, 219/1985 was registered on 15-9-1985 at 4-30 p.m. at Police Station Sadiqabad, District Rahimyar Khan by Ahmad Din, S.H.O.
3. The petitioner was challaned and sent up for trial. Charge under section 324, P.P.C. was framed, to which he denied and claimed trial.
4. The prosecution examined five P.Ws in all to substantiate its case. P.W.1 Muhammad Ramzan corroborated the contents of his report Exh. PA. P.W. 2 Muhammad Sarwar and P.W. 3 Gulam Sabir had corroborated the statement of P.W.1 and had stated that after hearing the noise they were attracted and witnessed the petitioner inflicting knife blows on the arm of P.W.1. P.Ws. 2 and 3 also witnessed the recovery of knife P.1 at the instance of the petitioner, which was secured by Thanedar vide memo. Exh.PB (without date) attested by them. P.W.4 Asghar Ali, A.S.I. had investigated the case and had secured knife P.1 at the instance of the petitioner vide memo. Exh. PB attested by P.Ws. 2 and 3. P.W.5 Dr. Abdul Wahaab had medically examined and had found one sharp-edged injury on the person of P.W.1 and also stated that P.W. 1 complained of pain. Exh. P.1/1 is medico- legal report.
5. The petitioner when examined under section 342, Cr.P.C. denied the prosecution evidence against him and also produced D.W.1 Manzoor Ahmad and D.W. 2 Ali Muhammad, who had stated that the petitioner was innocent and due to money dispute the petitioner had been falsely involved.
6. I have heard the learned counsel appearing for the petitioner as well as learned counsel for the State and have perused the record. F.I.R. No, 219/85 was not exhibited as well as writer of F.I.R. was not produced. None of the P.Ws. had identified the writing of Ahmad Din, S.H.O. who had drafted the F.I.R. as well as Muhammad Aslam, Moharrir, who had drafted Exh. PA. Neither the writers were produced nor their handwriting and signatures were identified by any of the P.Ws. I have also examined recovery memo. Exh. PB which does not bear the date. All the proceedings of the Court are in the handwriting of the reader and only the trial Court has dictated the same in their presence and had signed the same. The petitioner was not examined under section 340(2), Cr.P.C. which was mandatory.
7. The statements of the complainant P.W.1 and other witnesses P.Ws. 2 to 5 were not recorded by the Magistrate himself and the same were recorded by the reader under his supervision. The illegality was not curable under section 537, Cr. P.C. Reliance to this effect is placed on Munshi Ahmad etc. v. Maulvi Abdul Hannan 1987 PCr.LJ 2499. The petitioner was not examined under section 340(2), Cr.P.C. on oath which is also not warranted by law as held in PLD 1987 Pesh.
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8. Another important aspect of the case is that P.W.5 Dr. Abdul Wahaab who medically examined the complainant P.W.1 stated during cross- examination that the possibility of causing injury No,1 on the person of P.W. 1 by friendly hand could not be ruled out.
9. Be that as it may, the illegality committed by the trial Court, mentioned above would entitle the petitioner's acquittal. The petitioner is C acquitted of the charge. He is present on bail, his bail bonds are discharged.
Revision .