' This appeal arises out of the judgment of learned Magistrate Section 30 at Rawalpindi whereby he on 9-6-1992 convicted Shad Gul, appellant, under section 307, P.P.C. And sentenced him to five years' R.I. And imposed a fine of Rs,5,000; in default of payment of fine to further undergo one year R.I. And was given the benefit of section 382, Cr.P.C.
2. Brief facts of the case are that on 21-8-1990 at 11-30 p.m. The complainant was sleeping in his house and on call bell, when the complainant opened the door he found Shad Gul, appellant and Jahan Zaib standing in front of the door; both the persons started abusing the complainant; Shad Gul took out the revolver from his pocket and fired a shot upon the complainant; he sat down and the fire missed and hit the wall; upon hearing the noise, brother of the complainant saw from the window of the upper storey; accused also fired towards him which remained too ineffective and after that Shad Gul, accused fired two shots and ran away. The occurrence was allegedly witnessed by Zaheer Ahmed and Muhammad Aslam. The motive behind the occurrence was that the sister of the complainant was married with Jehan Zaib and due to strained relations with husband, she was living with the complainant and after that a decree for dower and maintenance was passed against the accused, Jehan Zaib. Due to this grudge, the accused allegedly made a murderous assault upon the complainant.
' In support of the appeal, learned counsel submitted that non-examination of the Investigating Officer has seriously prejudiced the right of the appellant for cross-examination and that the conviction based on the offer made by the appellant on Holy Qur'an is unwarranted and beyond jurisdiction.
4. Conversely, learned counsel for the State contended that P. Ws. Deposed on the Holy Book as offered by the appellant; hence should suffer the consequences of his offer. According to the learned counsel, there is nothing on record to disbelieve the prosecution version.
5. I have heard arguments of learned counsel from both the sides at length and have gone through the record with their able assistance. In the case of A.K.M. Razz and others v. State PLD 1958 Dacca 1 1 1 it was laid down that failure of examination of the Investigating Officer by the prosecution was a serious defect which could not be cured. In M. Sharif v. The State 1972 PCr.L.1 1259 it was ruled that production of the Investigating Officer and his cross-examination was necessary. Following the law laid down in these two precedent cases, a learned Judge of the Sindh High Court in the case of Suleman and others v. The State 1991 PCr.LJ 1341 held that a serious prejudice has been caused to the accused on account of the prosecution's not examining the material witnesses such as the Investigating Officer and the Mashirs of recovery, arrest and Vardat which is a serious irregularity and could not be cured and set aside the conviction and sentence.
' In the instant case, the prosecution failed to produce the Investigating Officer in spite of issuance of non-bailable warrants.
6. Above all are the observations made by learned trial Court while convicting the appellant which read as under:-- "... ... ...The case cannot be thrown on the basis of mere technicalities, even if the Investigating Officer has not appeared in evidence. He is not an eye-witness and cannot be treated more important than the offer of accused to depose on the Holy Book."
' Section 163(3) of the Qanun-e-Shahadat, 1984 confers no jurisdiction on the Courts to decide the criminal cases on oath on Holy Book rather the words used clearly create a bar in such-like matters.
In view of the clear bar contained in subsection (3) of section 163 of the Qanun-e-Shahadat, 1984 coupled with the factum of non-examination of the Investigating Officer, conviction of the appellant is not maintainable. The appeal is, therefore, accepted and the judgment of the learned trial Court is set aside, and as a natural corrolary the appellant is acquitted. He is on bail and bail bonds shall stand discharged.