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‑‑‑S. 307‑‑Investigating Officer not produced‑‑Injured witness supported by eye‑ witnesses‑‑F.I.R. lodged promptly‑‑Medical evidence corroborating prosecution version‑‑Grievous injury caused by accused on head of injured with hatchet‑‑Non‑production of Investigating Officer, held, had not caused prejudice to accused‑‑Trial did not suffer from any factual or legal infirmity‑‑Conviction recorded by Trial Court and upheld in appeal, not interfered with in circumstances.

M.M.A. Pirzada for Appellant.

Mushtaq Ahmad Farazi for the State.

Date of hearing: 2nd April, 1985.

Allah Wasaya convict has filed this revision against his conviction under section 307, P.P.C. recorded by Judicial Magistrate Section 30, Bahawalnagar, vide his judgment, dated 1‑4‑1984 and upheld in appeal by Additional Sessions Judge, Bahawalnagar, vide judgment, dated 28^th October. However, learned Additional Sessions Judge while dismissing the appeal reduced the sentence from 3 years' R.I., and fine of Rs. 5,000 to 2 years' R.I. and fine of Rs. 3,000 and directed that in case the fine is recovered, Rs. 2,000 out of it shall be paid to the injured P.W. Rahim Bakhsh as compensation and in default of payment of fine the petitioner shall further undergo 3 months' R.I.

2. Briefly the facts are that Rahim Bakhsh, the injured witness (P.W.1). was sleeping near the house of Elahi Bakhsh (P.W. 4) on the fateful night for guarding his cattle. At about mid‑night (3 a.m.) hearing a sound he woke up and saw Allah Wasaya, petitioner armed with a hatchet standing near his cot with his brother Muhammad Musa (acquitted accused). The moment Rahim Bakhsh tried to get up Allah Wasaya inflicted a hatchet blow on his head as a result of which he fell down. His cries attracted Khuda Bakhsh (P.W. 3) and Elahi Bakhsh (P.W. 4) who also witnessed the occurrence. The petitioner as well as his brother Musa fled away. The motive for the attack was stated to be that Rahim Bakhsh; the injured P.W., was suspected as having illicit relations with the wife of Eisa, brother of the petitioner. The matter was reported to S.I. Muhammad Rafiq (P.W.5) by the injured P.W. vide report Exh.P.A. The S.I. prepared injury statement Exh.P.B. of the injured and sent him to the hospital for examination and treatment. As the occurrence related to Police Station Fort Abbas, therefore, he sent the complaint Exh.P.A. to that police station for formal registration of the case and investigation. Ultimately the case was registered at Police Station Marcot on 9‑8‑1981 and the police challaned the petitioner and his brother Musa.

3. The trial was held by Ch. Muhammad Akram, Judicial Magistrate, Bahawalnagar. At the trial the prosecution in support of its case examined 5 witnesses in all. The accused persons when examined under section 342, Cr.P.C., denied the allegations and examined Haji Muhammad Yar as D.W. 1 who stated that the parties were inimical to each other for the last 28 years. He conceded that he lived at a distance of 12 miles from the place of occurrence.

4. Dr. Mukhtar Naseem (P.W. 6) "medically examined Rahim Bakhsh P.W. on 8‑8‑1981 and found on his person an incised wound 4" x 1/2" x skin deep on the forehead. X‑ray of the skull was advised and at the time of examination his blood pressure and pulse were not recordable and respiration was abnormal. The condition of the patient was however, described as serious. In the X‑Ray fracture of skull was detected and the injury was declared grievous.

5. Rahim Bakhsh, the injured witness supported the prosecution and clearly stated that Allah Wasaya, petitioner had given the hatchet blow on his head at 3 a.m., on the night of occurrence. He raised alarm which attracted Elahi Bakhsh and Khuda Bakhsh P.Ws. He was taken to Police Station Khairpur Tamewali where he gave his statement Exh.P.A. and that he remained under treatment in Hasilpur and then in Bahawalpur hospitals. He further stated that he was attacked and injured because he was suspected to be having illicit liaison with the wife of Eisa Khan, brother of the petitioner. Khuda Bakhsh (P.W. 3) supported Rahim Bakhsh P.W. in all material particulars. According to him Musa (acquitted accused) had raised Lalkara that Rahim Bakhsh P.W. should be done to death whereupon Allah Wasaya gave hatchet blow on the head of Rahim Bakhsh within his view. Elahi Bakhsh (P.W. 4) stated that when he reached the place of occurrence hearing the alarm, he saw both the accused running away from the spot. S.I. Muhammad Rafique (P.W.5) proved that he had recorded the statement Exh. P.A. of Rahim Bakhsh and had sent it for the registration of case to Police Station Fort Abbas. Allah Jiwaya (P.W. 2) testified that a Thanedar of Maroot Police Station recovered a hatchet at the instance of Allah Wasaya, petitioner, which was seized under memo. Exh.P.B. attested by him.

6. Learned trial Court on consideration of the material on record giving benefit of doubt to Musa acquitted him but convicted the petitioner under section 307, P.P.C. and sentenced him to 3 years' R.I., and fine of Rs. 5,000. Being aggrieved, the petitioner filed an appeal which was decided by Additional Sessions Judge, Bahawalnagar on 28‑10‑1984 who while dismissing the appeal reduced the sentence as indicated above against which the petitioner has filed the instant revision.

7. I have heard the learned counsel for the petitioner as well as for the State and also perused the record.

8. It is argued on behalf of the petitioner that the Investigating Officer has not been produced, therefore, the trial has vitiated. Learned counsel has failed to show as to how the non‑production of the Investigating Officer has prejudiced the case of the petitioner. Rahim Bakhsh injured P.W. is supported by the eye‑witnesses. The report was lodged promptly. The medical evidence also supports the prosecution. It is true that it is a night occurrence but it was not difficult for the injured witness to identify the petitioner who inflicted the hatchet blow to him from arm's distance. The trial in my view did not suffer from any factual or legal infirmity and, therefore, there is no valid ground to interfere with conviction recorded', by the trial Court and upheld by Additional Sessions Judge in appeal. In', view of the grievous head injury caused by the petitioner with a hatchet to Rahim Bakhsh P.W. I think the sentence awarded to the petitioner is not too harsh, rather he has been dealt with leniently. However, I find that the benefit of provisions of section 382‑B, Cr.P.C., has not been given to the petitioner. It is, therefore, directed that while computing the substantive sentence of imprisonment the jail authorities shall also count the period for which the petitioner remained in jail before the order of conviction was passed.

9. The result is that this revision has no merit and is hereby dismissed.

S.A./A‑34/L Revision dismissed.

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