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Criminal Revision ‑No. 25 of 1985, heard on 6th November 1985.
‑‑--‑S. 325/323‑‑Injured sustaining as many as ten injuries but Radiologist who took X‑Rays of injured not examined‑‑Medical Officer giving his opinion about nature of injuries on basis of X‑Rays reports and stating before trial Court that he had received said reports from Civil Surgeon‑‑Case mishandled by prosecution‑‑Conviction set aside and case remanded to trial Court with direction to examine Radiologist and provide opportunity to defence for cross‑examination and decide case on merits and law.
P L D 1971 S C 723; P L D 1966 S C 434; P L D 1978 S C 298 and 1981 P L D 1981 Kar. 745 ref.
‑‑‑S. 325/323‑‑Injuries‑‑X‑Rays reports‑‑When X‑Rays reports are produced, Radiologist, held, must be examined so as to determine nature of injuries.
1985 P Cr. L J 2731; 1985 P Cr. L J 825; 1985 P Cr. L J 986 and Abdul Khalique and another's case 1979 P Cr. L J 564 ref.
1985 P Cr. L J 816 and 1984 P Cr. L J 3102 rel.
Abdul Hamid Dogar for Petitioners.
Zawar Hussain Jaffery, A.A.‑G. for‑Respondent.
Date of hearing: 6th November, 1985.
This Criminal revision under section 4351439, Cr.P.C. has been filed to challenge the concurrent findings of Civil Judge and F.C.M., Khairpur and learned Sessions Judge, Khairpur.
2. The facts are that on i4‑9‑1983 complainant Mumtaz Ali lodged report at Police Station Pir‑Jo‑Goth in which he stated that while he and Haji Bauho were going to their village from Pir‑Jo‑Goth when they reached near the shop of Abdul Sami Khilji there appeared applicants Ghulam Rasool and Dodo, who caused Lathi injuries to Haji Bauho on head and arm. The complainant raised cries which attracted Panjal and others. Both the applicants were challaned in the Court of Civil Judge and F.C.M., Khairpur who after recording the evidence convicted them under section 325/323, P.P.C. Each of them was sentenced under section 325 , P.P.C. to suffer R.I. for 2 years and to pay fine of Rs.2,000 in default to undergo R.I. for six months and under section 323, P.P.C. to suffer R.I. for six months each and Rs.500 fine and in case of non‑payment of fine to suffer R.I. for three months.
3. The appeal was preferred in the Court of Sessions Judge, Khairpur which was heard by Additional Sessions Judge, Khairpur who vide judgment, dated 25‑4‑1985 maintained the conviction under section 325, P.P.C. only and in view of, section 71, P.P.C. he set aside the conviction and sentence under section 323, P.P.C. It was also ordered by the Civil Judge that amount of fine if recovered Rs.4.000 be paid to injured as compensation.
4. Mr. Abdul Hamid. Dogar, the learned counsel for the petitioners argued that F.I.R. was recorded after preliminary investigation. The Radiologist was not examined, therefore opinion about the nature of Injuries as given by Medical Officer Asif Ali has no value. He has also submitted that there is misreading of evidence and cycle on which complainant was going has not been produced. Mr. Dogar cited 1985 P Cr. L J 2731, 1985 P Cr. L .J 825, 1985 P Cr. L J 816 and 1985 P Cr. L J 986 in support of his contention about non‑examination of Radiologist. He has also referred to the cases reported in 1979 P Cr. L J 564, 1984 P Cr. L J 3102, P L D 1971 S C 723, P L D 1966 S C 434, PLD 1978 S C 298 and P L D 1981 Kar. '745 on the point of revisional jurisdiction of High Court and misreading of evidence.
5. It is an admitted fact that Radiologist who took X‑Rays of injured has not been examined. Dr. Asif Ali Exh. 7 stated before the trial Court that he received X‑Ray reports from Civil Surgeon, Khairpur. He has produced such report as Exh. 7‑A. On that basis he has given his opinion about the nature of injuries stating therein that injuries A Nos. 3, 4, 5, 6 and 7 are grievous. The learned Additional Sessions Judge, Khairpur while deciding the appeal observed that opinion of Medical Officer has not been challenged in the cross‑examination and opinion was given by Radiologist during the course of his normal duties.
6. The case of Abdul Khalique and another reported in 1979 P Cr. L J 564, it was held that Doctor who had given opinion if not examined the nature of injuries not proved. Same view has been taken by Muhammad Munir Khan J. of Lahore High Court in the cases reported in 1985 P Cr. L J 816, 825, 985 and 2734. The conviction in the above cases was altered.
7. In this case injured sustained as many as 10 injuries. It is all that case was mishandled by the prosecution. The Radiologist was not examined. I am not inclined to convert the sentence from sections 325, 113 P.P.C. to 323, P.P.C. but hold that in such circumstance when X‑Rays reports are produced the Radiologist must be examined as to determine) the nature of injuries.
8. I set aside the conviction and remand the case to the trial Court with directions to examine the Radiologist and provide opportunity to defence for cross‑examination and decide the case on merits and law. In case the Judge who decide of the case is not available, his successor should examine the Radiologist and decide the case 'as early, as possible.
M.Y.H. Case remanded
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