1. ' This revision application has been filed challenging the judgment passed by the two Courts below whereby the present applicants were convicted under section 307/34, P.P.C. And sentenced to suffer R.I. For four years each and to pay a fine of Rs,2,000 each or in default thereof to suffer further R.I. For one month each and also to pay a sum of Rs,1,000 each by way of compensation to the injured P.W. Makhan or in case of default thereof to suffer further R.I. For 15 days each in the Sessions Case No,17 of 1987 by the first Assistant Sessions Judge, Khairpur Mirs in crime registered as F.I.R. No,3/1987 at Police Station Sorah.
2. ' Briefly the facts are that on 30-3-1987 at about 8-00 p.m. Complainant Muhammad Yousif lodged the above said report to the effect that on the date of incident when the complainant alongwith injured P.W. Makhan and other P.Ws. Muhammad Bux and Usman were returning from the village of Latifdino after attending the circumcision ceremony of his sons and at about 5-30 p.m. When they reached near lands of Haji Arbab the two appellants emerged from the bushes and confronted them. Appellant Jeal was armed with a revolver while Jamal had a hatchet in his hand. The appellant Jeal is said to have fired at P.W. Makhan hitting him on his left leg while appellant Jamal gave hatchet blows to Makhan on different parts of his body including the face. The accused party made good their escape whereafter the complainant lodged the report after leaving P.W. Makhan at the hospital. The police after usual investigation arrested the accused and sent up the case for trial. A charge was framed under section 307/34, P.P.C. Read with section 506/2, P.P.C. The appellants pleaded not guilty and claimed trial. The prosecution examined the complainant, injured P.W. Makhan, P.Ws. Usman and Latifdino. The prosecution also examined A.S.I. Allah Nawaz who was the Investigating Officer and the statement of Medical Officer Mahmood Ali was also brought on record by consent. The trial Court after hearing the arguments of the Advocates was pleased to pass the above judgment convicting and sentencing the appellants as above. Being aggrieved the appellants preferred an appeal (Criminal Appeal No,29 of 1990) before the Sessions Judge, Khairpur who was pleased to dismiss the same. Hence this revision application.
3. ' I have heard Mr. Gul Bahar Korai, learned counsel for the applicants and Mr. A.G. Shaikh, learned A.A.-G. At the outset the.Learned counsel for the applicants has pointed out that in the present case the judgment is not in accordance with the provisions of section 367, Cr.P.C. Inasmuch as the lower Appellate Court has not framed the points for determination. He has placed reliance on the case of Atta Muhammad and 4 others v. State 1988 PCr.LJ 1698 wherein a learned Single Judge of Lahore High Court had remanded the case for rehearing in such circumstances. Mr. A.G. Shaikh, learned counsel for the State has vehemently contested this contention of the counsel and has submitted that judgment of the trial Court will show that the two points which were determined are as under:--
(1) Whether on 30-3-1987 at about 3-30 p.m. In the land of Haji Arab accused Jeal and Jamal caused grievous injuries with revolver and hatchet to P.W. Makhan in furtherance of common intention, in order to kill, as alleged by the prosecution?
(2) Whether on the above date, time and place both the accused issued threats of murder to complainant party as alleged by the prosecution?
4. He has further argued that in the appellate judgment it would be seen that both these points have been conversed in discussion. He has further argued that the only two points raised by the appellants before the lower Appellate Court are that there was no recovery of any weapon from the appellants and that there was enmity between the parties and therefore, the appellants had claimed that the prosecution failed to prove the case against the applicants beyond any reasonable doubt.
5. ' I will take up these two points first. As far as the recovery is concerned Mr. Gul Bahar Korai the learned counsel for the applicants, during course of arguments, has admitted that both the revolver and the hatchet were recovered from the present applicants but they have not been found guilty in the case under section 13-D of the Arms Ordinance. However, he has not been able to refer to any such judgment of acquittal nor it has been shown if the present appellants were challaned in the alleged offence under Arms Ordinance. In the circumstances the plea taken by the applicants that there was no recovery has no weight.
6. As regards enmity, suffice it to say that enmity is a double-edged sword which can cut both ways.
7. However, even if the witnesses are related to the complainant, that itself would not be a ground to disbelieve their statements unless there are cogent reasons for the same. The learned counsel for the applicants has submitted that there are material contradictions in the evidence of the witnesses. He has also referred to certain contradictions. I have considered the same. In the first instance this being a revision application challenging concurrent findings of facts arrived at by the two Courts below, this Court will not go into factual aspect of the case. Moreover, these contradictions are of minor nature and would not affect the fate of the case in view of the medical evidence available on record.
8. ' In respect of medical evidence, Mr. Korai, counsel for applicants has argued that the statement of the Medical Officer was recorded on 9-6-1987 whereas the charge was framed in this case on 16- 6-1988. From this piece the learned counsel has submitted that since the evidence was recorded before framing of the charge, entire proceedings in the trial stand vitiated. I would have agreed to this contention of the counsel straightaway but for a consent statement made on 12-7-1990. The learned A.A.-G. Has explained the factual position. He has pointed out that it was under the directions of the Sessions Court in a bail application moved in the present case that the statement of Medical Officer was recorded who was also subjected to a very lengthy and detailed cross- examination by the Advocate for the accused. In the trial the A.P.P. Had moved an application on 12-7-1990 praying that the said statement of the Medical Officer be brought on record to be treated as evidence and the learned counsel for the accused had recorded his no objection on that application. It was in these circumstances that this Statement was made part of the proceedings in the case. Accordingly the statement of the Medical Officer shall be deemed to have been brought on record on 12-7-1990 which is subsequent to the framing of the charge and therefore, the proceedings cannot be said to stand vitiated. Even otherwise this plea was not taken by the applicant in their memo. Of appeal nor the same has been argued as it does not find place in the judgment of the lower Appellate Court. It is not open to applicants to take this plea in view of no objection recorded by them.
9. ' In these circumstances and the fact that the injured P.W. Makhan had sustained hatchet injuries with the sharp side on his face near nose and eye, the prosecution appears to have established their case beyond all reasonable doubt. The applicants should thank their stars that the trial Court has already taken a lenient view by awarding lesser punishment in the case. With these observations I dismiss this revision application and maintain the judgments of the two Courts below.
10. Revision .