1991 PCr (PLP)

Nemo for the State M. Afzal Khan Niazi for Respondent No.2. Date of hearing: 30th March, 1991. Muhammad Hussain and 4 others petitioners stand convicted under section 148/325/149, P.P.C. for causing injuries to Mirza Khan and Ghulam Ali P.Ws. Muhammad Hussain, Sardar Khan, Mushtaq Ahmad and Zafar Iqbal were sentenced to 1-1/2 years' R.I. each and a fine of Rs.500, in default thereof two months' R.I. each under section 325, P.P.C. Polay Khan petitioner No.5 was sentenced to imprisonment already undergone. All the petitioners except Polay Khan were also convicted under section 148, P.P.C. and sentenced to one year's R.I. each, with the direction that the sentences shall run concurrently.

2. While accepting the criminal liability of the petitioners for the injuries found on injured P.Ws, the learned counsel has questioned the nature of the offence on the ground that since the Radiologist was not produced in proof of the X-Ray report and the doctor was not in a position to say that there was fracture through and through, therefore, the petitioners could not have been convicted under section 325, P.P.C. Learned counsel for the respondent has opposed this revision on the ground that on the first examination the doctor was of the clear view that the injury found on the head of Mirza Khan was grievous. No one has appeared for the State. '

3. I have considered the matter carefully. I find that there can be no two opinions that when Radiologist is not produced in proof of the X-Ray report to connect the same with the injured person, then conviction under section 325, P.P.C. cannot be sustained. This being the position, the conviction of the petitioners under section 325, P.P.C. is set aside. Instead they are convicted under section 323, P.P.C.

4. This brings me to the question of sentence. I find that the occurrence took place in the year, 1983. After the rejection of the appeal, petitioners Nos.1 to 4 remained in jail for about 4-1/2 months before they could be released on bail by this Court in this revision. They also remained some days in jail as undertrial prisoners. In the circumstances of this case, I feel that the agony of trial coupled with the imprisonment suffered by them as undertrial prisoner and as convict would meet the case. The fine imposed by the trial Court and the sentence in lieu thereof is maintained. The petitioners will deposit the fine with the trial Court within 2 months from today, failing which the trial Court shall issue warrants for their arrest and on their arrest, they will be sent to jail to serve out the sentence. N.H.Q./M-2799/L Order accordingly.