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Criminal Revision No. 2 of 1983, decided on 23rd February 1983.

--Ss. 326/34 & 324/34-Criminal Procedure Code (V of 1898), S. 435/439-Grievous injury-Doctor giving report about grievous nature of injury not examined as witness and no positive evidence otherwise available to show injury as grievous-Accused, held, not liable under section 326, P. P. C. and conviction recorded there under cannot be maintained-Conviction altered to section 324/34, P. P. C.

1974 P Cr. L J Note 84 at p. 53.

M. Sultan Alam for Appellants.

Tassadaq Hussain A. A.G. for the State.

Date of hearing: 23rd February, 1983.

The petitioners were convicted under section 326/34, P. P. C., sentenced to three years' R. I. and a fine of Rs. 1,000 each, in default to suffer six months' R. I. for causing injury to Muhammad Rafiq (P.W. 3). They were also convicted under section 324/34 P. P. C. sentenced to one year's R. I. and a fine of Rs. 500 each, in default of payment of fine to suffer further R. I. for three months, for causing injury to Muhammad Nazir (P. W. 2), by Magistrate Section 30 Sahiwal, vide order, dated 9-6-1981. Their appeal was dismissed by the learned Addl. Sessions Judge, -Sahiwal, vide order, dated 14-12-1982. The learned Addl. Sessions Judge, however, reduced the sentence of the petitioners under section 326/34, P. P. C. from three years' to two years' R. I. each, but the sentence of fine of Rs. 1,000 was maintained.

2. The revision petition was admitted to consider the short point whether according to the evidence of the prosecution any case under section 326, P. P. C. is made out or not.

3. Learned counsel for the petitioners has contended that Dr. Javed Mahmood Akhtar (P. W. 4) who had medically examined Muhammad Rafiq P. W. had not given any opinion regarding the injury and had kept it under observation. It is submitted that Dr. Javid Mahmood Akhtar P. W. did not give any opinion later on. He made a note (Exh. P. E./1) that vide X-ray reports Nos. 1971, 72, dated 29-12-1980, fracture of skull bone in P.A. was seen. This means that the X-ray was performed under the supervision of some other person who had recorded the report after examining the X-ray, which was received by him. The doctor who had examined the X-ray and had submitted the report, was not produced as a witness. Learned counsel has placed reliance on 1974 P Cr. L J Note No. 84 at p. 53.

4. The note (Exh. P. E./1), recorded by Dr. Javid Mahmood Akhtar (P. W. 4) on Exh. P. E., shows that he had received the report and on that he had written the note. Obviously, it indicates that he had not examined the X-ray. Even otherwise, the non-production of the X-ray shows that the X-ray was not shown to Dr. Javid Mahmood Akhtar, a such, no reliance can be placed on the opinion of a person regarding the grievous nature of the injury who has not been examined as a witness. A there is no positive evidence that the injury was found to be grievous, the petitioners cannot be held liable under section 326, P. P. C. In view of this, the conviction recorded under section 326/34, P., P.C. against the petitioner cannot be maintained. The revision petition is accepted to the extent A that the conviction of the petitioners under section 326/34, P. P. C. is altered to under section 324/34, P. P. C. for having caused injury to Muhammad Rafiq P. W. They are sentenced to one years' R. I. and a fine of Rs. 1,000 each, in default of payment of fine, to suffer further six months' R. I. Although the fine amount for causing injury to Muhammad Nazir P. W. is Rs. 500 but they have been sentenced to pay fine of Rs. 1,000 each, for causing injury to Muhammad Rafiq P. W. as they have been held responsible for causing the injury on the head of Muhammad Rafiq P. W. which is a vital part of the body.

5. With the above alteration in the conviction and sentences of the petitioners, the revision petition stands disposed of. The petitioners shall, however, be given the benefit of the provisions of sections 382-B, Cr. P. C.

M. Y. H. Conviction altered.

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