2016 PLP 86 (YLRN)

MAZHAR IQBAL SIDHU, J.

Irfan and Zafar Iqbal, petitioners have assailed orders dated 20-10-2015 and 02-11-2015 rendered by the learned Trial Court on multiple grounds.

2. The necessary facts permitting to the filing of instant revision petition are that petitioners along with two others are facing trial in case registered vide FIR No.1029 dated 23 -12-2008 under sections 302, 324, 148 and 149, P.P.C. at P.S. Green Town, Lahore on the complaint of Khalil Ahmed. During the alleged occurrence, Sagheer Ahmed, Zaheer Ahmed and Tanveer Ahmed sustained injuries but Tanveer Ahmed succumbed in the hospital. On the conclusion of investigation, report under section 173, Cr.P.C. was prepared on 10-02-2009. Both the injured persons Zaheer Ahmed and Saghir Ahmed were medically examined and their medicolegal are available on the record but nature of the injuries could not be declared. Dr. Zia-ul-Haq, examined as PW-7, who medically examined them, after cross-examination of the learned defense counsel, request was tendered through an application under section 540, Cr.P.C. for re-examination of the doctor in order to have the nature of injuries declared. The said application was allowed accordingly, impugned orders were delivered, then the instant revision petition.

3. Learned counsel for the petitioners has submitted that incident took place on 30 -12-2008. On the day of occurrence, injured were examined but till today, the results of injuries kept under observations were not procured either by the investigating agency or by the complainant as well as injured PWs. Further argued that when defense has cross-examined, thereafter the prosecution felt it essential in order to fill-up the lacuna of prosecution case whereas the law does not permit the same, therefore, re-examination of the doctor may not be permitted by the prosecution at this stage. In support of its contention, learned counsel has relied upon judgments referred to in the case of "Muhammad Asif Miraj

Petitioner v. The State and 3 others

Respondents" (PLD 2015 Lahore 26) and of case of "Shafqatullah Khan alias Shaukat Khan and 2 others

Petitioners v. Jehan Zeb Khan and others

Respondents" (2012 PCr.LJ 734)

4. Learned Additional Prosecutor General assisted by learned counsel for the complainant/respondent has opposed the submissions that both the injured were critically brought to Jinah Hospital, Lahore where they were examined, remained inpatient and were operated upon but the result of the injuries could not be procured whereas the doctor who deposed in the court being most relevant person may be directed to declare the nature of injuries. In support of his arguments, learned counsel has relied upon "Ansar Mehmood

Petitioner v. Abdul Khaliq and another

Respondents" (2011 SCMR 713). Learned Additional Prosecutor General has been noticed in supporting the respondent.

5. Heard. File gone through.

6. PW-7, Dr. Zia-ul-Haq who was posted at Jinah Hospital, Lahore attended injured Saghir Ahmed and Zaheer Ahmed and prepared their medicolegal reports, those have been exhibited accordingly. He noticed six injuries on the person of Saghir Ahmed and six on the body of Zaheer Ahmed. Injuries were kept under observation for X-Ray reports. Both the injured were referred to Surgical Emergency Ward for further treatment. Both the injured were operated upon but neither their X-Ray reports nor their operation notes were collected by the Investigating Officers or by the private persons, even at the time of scrutiny of the file while receiving the report under section 173 of The Code of Criminal Procedure, 1898. The prosecution Branch did not bother about it. This state of affairs on the part of Investigating Officer as well as Station House Officer and the Prosecution Branch being lethargic is shocking and deplorable cannot be appreciated, fie upon it. The learned Trial Court has also been noticed shutting his eyes while levying indictment. The assistance on the part of learned private counsel engaged by the complainant party remained as such. In these circumstances, when the defense has already cross-examined the PW and has brought certain things in its favour, cannot be permitted to the prosecution to mutilate the same for the simple reasons that as per legal parlance established since yore that law helps the vigilant but not the indolent and who sleeps over his rights cannot be given. Another aphorism exists that prosecution cannot be allowed to fill up the lacunas and the parties should not suffer for the act of court. The court has noticed apathy of the aggrieved party and inactiveness/ inefficiency and indifference of the prosecution department whereas prosecutorial weaknesses cannot be permitted to be filled up at this late stage. However, it has been noticed that when Saghir Ahmed was medically examined, doctor observed his condition as follows:- "He was a young male with serious condition. He was unconscious. His blood pressure and pulse was not recordable." Similarly, the general condition of Zaheer Ahmed was observed as under:- "He was young male with serious condition. He was in the state of shock with multiple firearm injuries. His blood pressure and pulse was not recordable." In the circumstances, the learned court has to assess nature of injuries but at this belated stage, prosecution cannot be permitted to fill up the lacuna, therefore, the instant recension petition is accepted, resultantly the, impugned orders dated 20-10-2015 and 02-11-2015 are overturned. HBT/I-4/L Petition accepted.