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Criminal Revision Application No. 164 of 1977, decided on 18th February, 1979.

-----S. 439-Revision-Conviction of petitioner under S. 325, P. P. C. challenged on ground that according to medical evidence offence under S. 325 not established as none of injuries on complainant described as a fracture or dislocation of any bone and that certificate showing dislocation of bone on complainant's right finger obtained after 25 days of incident-Medical Officer opining in regard to dislocation of bone, however, not examined-Conviction set aside, in circumstances.-[Revision (criminal)].

----Sentence----Quantum-Accused 'one month sentence under S. 323, P. P. C. almost completely served except a balance of three or four days imprisonment-Sentence reduced to term already undergone, in circumstances.,-[Sentence].

Mrs. Saleema Nasiruddin for Applicants.

R. A. Qureshi for the State.

Date of hearing : 5th and 6th February, 1979.

This revision application has been filed by applicants Abdul Khalique and Gul to challengs their conviction in charges under sections 325, P. P. C. and 323, P. P. C. recorded by the Civil Judge and Ist Class Magistrate, Gambat, which findings and convictions were upheld by the Ist Addl. Sessions Judge, Khairpur. The Magistrate awarded a sentence of R.I. for one year in respect of the offence under section 325, P. P. C. and a sentence of R. I. for three months for the offence under section 323, P. P. C. The learned Additional Sessions Judge while dismissing their appeal reduced the sentence on the charge under section 325, P. P. C. to R. I. for one month. Aggrieved by the judgment the present revision application has been filed through Mrs. Salima Nasiruddin, Advocate and Mr. R. A. Qureshi, Advocate has appeared for the State.

2. The brief facts of the prosecution case are that on 8-2-1972 at about 11 a.m. the complainant Bangui had gone to Tube-well No. E-46 to get fuse wires from P. W. Ghulam Abbas who was the operator at the said tube-well. Both the applicants, who are brothers inter se, were present at this tub well and were carrying lathis. It seems that the applicants had a grudge against Bangul on account of the latter having implicated them in a theft case. The applicants abused complainant Bangui and they alongwith two other unknown persons gave him lathi blows whereupon he raised cries which attracted Fakir Muhammad and Sahib Bhutto to the scene. A report was lodged at Police Post Hingorja within two hours and complainant Bangui was sent for medical examination to the Medical Officer, Hingorja. The Medical Officer found two contused wounds on the head of Bangul and four abrasions on the forehead, forearm and little finger.

3. It seems that complainant Bangul went to a Government dispensary on 3-3-1971 and on X-Ray examination was found to be having dislocation of the intra-phalangeal joint of right little finger. The case was submitted for trial before the Civil Judge and Ist Class Magistrate, Gambat, which resulted in the conviction and consequent sentence of the applicants.

4. The applicants denied the prosecution case and alleged false implication by reason of enmity. Applicant Abdul Khalique produced copies of some earlier judgments of Courts to prove a background of enmity.

5. The learned advocate for the applicants has not challenged the veracity of the prosecution evidence. No doubt enmity has been alleged and established but the Courts below have all the same believed the prosecution witnesses and I do not find any reasons so compelling as to disturb such concurrent findings of fact.

6. The learned advocate for tile applicants has attacked the medical evidence in this case on the premises that an offence under section 325, P. P. C. has not been established. While Bangui was examined by the Medical Officer on 8-2-1971 and a certificate was also issued in respect of the injuries, none of such injuries is described as a fracture or dislocation of any bone. The complainant, however, proceeded to get himself examined regarding a finger of the right hand and he has obtained a certificate after more than 25 days of the incident showing that there was dislocation of the bone of his right little finger. The Medical Officer or technician, who examined the injury on the right little finger of the complainant by aid of any X-Ray machine has mot been examined in Court. Dr. Abdur Rahman, however, stated that the report on the injury to the right little finger was received by him from the District Hospital. The only injury on the right index finger as disclosed in the initial medical report is described as an abrasion on the ulna, side of the right index finger. In the medical certificate Dr. Abdur Rahman has put a cross mark under the line in which this injury has been described and has written that there was a dislocation of the phalangeal joint. Now obviously the initial injury is not described by the Medical Officer as even a suspected dislocation. Such subsequent entry showing the injury to be a dislocation appears to have been made by Dr. Abdur Rehman on the basis of X-Ray report. This X-Ray report bears the date 3-3-1971 while the original certificate was Dated on 9-2-1971. This circumstance clearly shows that the original certificate has been altered on the basis of subsequent X-Ray report. The doctor who has given tire opinion in regard to dislocation after seeing the X-Ray plate has not ban examined. On such state of medical evidence learned State counsel ha conceded that the offence under section 325, P. P. C. is not established.

7. In the circumstances of this case I set aside the conviction of the two applicants on the charge under section 325, P. P. C. and they stand acquitted of that charge. The other offence of which the applicants were convicted is one under section 323, P. P. C. for which they had been awarded a sentence of one month. The judgment of the Appellate Court was announced on 30-6-1977 and bail was granted by this Court on 27-7-1977. It would seem that the sentence of one month has almost been complete served. I am not inclined to remand them to custody to serve the balance of three or four days sentence of imprisonment more so as the incident occurred in 1972. In the result this revision application partly succeeds so that conviction under section 325, P. P. C. of the two applicants is set aside but conviction under section 323, P. P. C. is upheld and their sentence is reduced to the term already undergone.

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