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Criminal Revision No. 705 of 1984, heard on 27th January, 1985

‑‑‑Ss. 326/149 & 324/149 Conviction‑‑Sentence‑‑Radiologist not produced to prove X‑Ray‑‑Accused, held, could not be convicted under S. 326/149, P.P.C.‑‑Conviction under S. 326/149, P.P.C. set aside and accused instead convicted under S. 324/149, P.P.C.‑‑Injury caused by accused was serious although not legally proved as grievous Accused sentenced to 11 years' R.I. under S. 324/149, P.P.C. in circumstances.‑‑[Sentence].

Abdul Baqi for Petitioners.

Faizur Rehman for the State.

Date of hearing: 27th January, 1985.

The facts giving rise to this revision are that Malla and 7 others, the petitioners, were tried by Magistrate First Class/Resident Magistrate, Tandlianwala under section 326/149, P.P.C. for causing grievous as well as simple injuries to Allah Yar P.W.2 in furtherance of their common object. Allah Yar received as many as 14 injuries, out of which only injury No. 8 attributed to Malla, was declared grievous. The rest of the injuries were found simple and caused by blunt weapon. The simple injuries were attributed to petitioners other than Malla petitioner No. 1. On the conclusion of the trial the petitioners were convicted under section 326/149, P.P.C. and sentenced to three years' R.I. each. The appeal filed by them failed on 15‑7‑1984, hence this revision

2. The learned counsel while conceding that Allah Yar P.W. 2 had received injuries at the hands of the petitioners challenged the nature of the offence. On the other hand the learned counsel for the State supported the judgments of the two Courts below.

3. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners. I find that since the Radiologist was not produced to prove the X‑Ray, therefore the petitioners could not have been convicted under section 326/149, P.P.C. for causing grievous injury to Allah Yar. Giving them the benefit of doubt on the question of the nature of offence, 1 set aside their convictions and sentences under section 326/149, P.P.C., instead they are convicted under section 324/149, P.P.C.

4. This brings me to the question of sentence. Since the injury caused by Malla was serious although not legally proved as grievous, he is therefore, sentenced to 11 years' R.I. So far as the remaining petitioners are concerned, I find that they are continuously in jail since 12‑6‑1984 and as such have served out sentence of about more than seven months. The sentence already undergone by them would meet the case. Resultantly Malla petitioner shall suffer 1 years' R.I. and the remaining petitioners Nos. 2 to 8 namely Sattar, Bahar, Wahab, Rataloon, Sadaloon, Hassan Ali and Mian Khan shall be released forthwith if not required in any other case.

M. A. K. Order accordingly.

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