' Mian Khan and .Ghulam Ali, sons of Shahra, were tried by Mr. Muhammad Aslam Khokhar. Resident Magistrate, Okara, under section 324/34, P. P. C. Who vide his judgment dated 31.3-1966, found them guilty of the said offence and sentenced them to six months' R. I. Each. They filed an appeal before Sh. Noor Muhammad, Sessions Judge, Montgomery, who vide his judgment dated 19-7-1966, dismissed the same and maintained their conviction and sentence.
2. Hence, this revision petition which was admitted by the order of this Court dated 29-7-1966 and the petitioners were released on bail.
3. The brief facts of the case are that on 7-3-1965, Ghulam Ali petitioner held Ghulam Ali, P. W. At about 10-00 a.m. And Mian Khan petitioner inflicted kassi blows on him. The motive as set up by the prosecution was that prior to this occurrence, Ghulam Ali P. W. Had a quarrel with Mian Khan petitioner on turn of water and exchanged abuses in that process.
4. The case of the prosecution was supported by Ghulam Ali injured witness himself, Sher P. W. 3, Dost Muhammad P. W. 4, and Waryam P. W. 5 and two police officials, corroborated by medical evidence.
5. Dr. Muhammad Rashid Chaudhry, P. W. 1, who medically examined Ghulam Ali P. W. 2, found two incised injuries on his head caused by sharp-edged weapon.
6. I have heard the learned counsel for the petitioners as well as the learned counsel for the State and have perused the record of this case carefully with their assistance. It has been submitted on behalf of the petitioners that in the F. I. R., the complainant took a stand that the attack was launched by the accused Mian Khan with a kulhari and the first blow was warded off but as he was held by Ghulam Ali, two more blows were given with the same weapon which fell on his head.
Learned counsel has made a grievance that in the statement made by the complainant he had given a different version by stating that initially the attack was launched by Mian Khan with a kulhari this should have been taken note of by the two Courts below. It was further contended that two recovery witnesses namely Said and Sarang, cited in this case, were given up by the prosecution and thus the factum of recovery of kassi did not stand proved on the record. He also contended that the case of Ghulam Ali petitioner was quite distinguishable from that of Mian Khan petitioner as no specific role had been assigned to him in the statements made by the P. Ws.
Before the trial Court and even assuming that the part so assigned at some stage of the case, it would he considered a proverbial japha and nothing else, in order to rope in the second brother in the case.
7. I have given my anxious thoughts to the contentions so raised by the learned counsel for the petitioners.' So far as the case of Ghulam Ali petitioner is concerned, 1 am in agreement with the learned counsel that this petitioner was unarmed and was not attributed any specific role by the P.
Ws. Before the trial Court and the possibility of his false implication in this case, cannot be excluded.
' So far as the case of Mian Khan petitioner is concerned, the prosecution has fully made out its case against him. The contention of the learned counsel that the complainant gave a different version before the trial Court than the one mentioned in the F. I. R. Would be of no avail to him as it I settled law that the F. I. R. Is not a substantive piece of evidence and therefore, it was duty incumbent upon the petitioners or their counsel t draw attention of the complainant to this glaring discrepancy regarding the different version made by him initially at the time of making the F. I. R.
The injuries on the head of the complainant are fully borne out by the medical evidence on the record as they are found to be caused by shar edged weapon, although simple in nature. There is nothing on the record to show that these were either self-suffered or caused by a friendly hand. '
8. The result of the above discussion is that I accept the revision petition of Ghulam Ali petitioner, set aside his conviction and sentence and acquit him. Since, he is on bail, he will stand discharged of his bail bond. However, the petition qua Mian Khan petitioner is dismissed and his conviction and sentence is maintained. He is on bail, he will be taken into custody forthwith to serve the remaining part of his sentence.