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Criminal Revision No. 19 of 1985, decided on 18th February, 1985

(a) Penal Code (XLV of 1860)--

---S. 326/34--Ocular testimony--Accused armed with firearms--Two fire arm injuries found on person of victim--Victim stating that he received injuries at hands of accused--Eye-witnesses supporting victim--Witnesses having no serious enmity with accused--Ocular testimony not suffering from inherent improbabilities--Opinion of Doctor that injuries might be self-suffered, not sufficient to discard testimony of witnesses who otherwise had been found worthy of credence--Victim, held, received injuries at hands of accused and none else in circumstances.

(b) Penal Code (XLV of 1860)--

---Ss. 326/34--Nature of offence--Radiologist not produced in evidence to prove that X-Ray pertains to victim of relevant case--Benefit of doubt on question of nature of offence, held, to go to accused--Conviction and sentence under S. 326/34, P.P.C. was therefore, set aside and accused were convicted under S. 324/34, P.P.C.

Abdul Shakoor for Petitioners.

Sardar Muhammad Khurshid for the State.

Date of hearing: 18th February, 1985.

The facts giving rise to this revision petition are that Bashir Ahmed, Faqir Muhammad petitioners alongwith Muhammad Siddiq and Sharif were tried by Mian Maqsood Ahmed Baitu, Civil Judge/ Magistrate Section 30 Toba Tek Singh under section 307/34, P.P.C. for having launched murderous assault on Gulzar in furtherance of their common intention. The petitioners and the co-accused had denied the charge. They claimed to be tried.

2. To prove its case, the prosecution examined eight witnesses. Muhammad Gulzar P.W. 1, Muhammad Siddiq P.W. 2 and Alam P.W. 3 have given the ocular account of the occurrence. Muhammad Gulzar stated that at the eventful time, Bashir Ahmed and Faqir Muhammad armed with revolvers and the co-accused empty handed launched murderous assault on him. Bashir Ahmed and Faqir Muhammad fired shot at him hitting on the palm of his right hand and on left thigh respectively. Ghulam Ahmed Medical Officer P.W. 6 examined Gulzar P.W.1. He found two injuries on his person caused by fire-arm. Injury No.1 which was on the palm was declared grievous, whereas injury No.2 on the thigh was simple in nature The rest of the evidence is more or less or formal nature.

3. When examined under section 342, Cr.P.C. the petitioners denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. In defence Habib-ur-Rehman A.S.P. appeared as D.W.1. He stated that he found the case against the petitioners and others false so he directed the S.H.O. for the cancellation of the case and action against the complainant. On the conclusion of the trial, the learned trial Court while acquitting the co-accused convicted the petitioners under section 307/34, P.P.C. and sentenced them to four years R.I. and a fine of Rs.1,000 in default thereof six months R.I. Feeling aggrieved by this judgment, the petitioners filed appeal before the learned Sessions Judge, T.T.Singh vide his judgment dated 9-1-1985 converted the conviction from 307/34, P.P.C. to 324, P.P.C. and reduced the sentence from four years R.I. to one year R.I. and a fine of Rs. 250 to each petitioner and in default thereof 1] months R.1. each.

4. The learned counsel for the petitioners contends that it was a false case; that the eye-witnesses are not reliable; that the Police found the prosecution case false and the injuries on the person of Gulzar suffered by friendly hands. On the other hand the learned counsel for the state has supported the judgment of the learned Sessions Judge.

5. I have considered the arguments advanced by the learned counsel for the parties with care: I find that Gulzar P.W. has stated that he received injuries at the hands of the petitioners; that Muhammad Siddiq A and Muhammad Alam the eye-witnesses have supported Gulzar the victim. They have no serious enmity with the petitioners. Their statements do not suffer from inherent improbabilities. The opinion of the A.S.P is irrelevant for the decision of the case. The opinion of the Doctor that the injuries might be self-suffered is not sufficient to discard the E testimony of the witnesses who otherwise have been found worthy and of credence. For all these reasons, I am convinced that the Gulzar, received injuries at the hands of the petitioners and none else.

6. This brings me to the question of the nature of offence committed by them. Since Radiologist was not examined, therefore, it cannot be said with certainty that the X-Ray pertains to Gulzar. That being the position there is no option but to give benefit of doubt to the petitioners on the question of the nature of offence committed by them. Their conviction and sentence under section 326/34, P.P.C are set aside instead they are convicted under section 324/34, P.P.C. The petitioners have remained in jail for about three months as under trial prisoner and convict. The sentence undergone by them would4therefore, meet the case. The sentence of Rs. 250 and the imprisonment in default thereof is however maintained. On the payment of fine of Rs. 250 each the petitioners shall be released.

S. A

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