2006 P Cr (PLP)

SYED HUSSAIN MAZHAR KALEEM, J.

The above titled appeals have been directed against the order of Additional District Court of Criminal Jurisdiction, Dudyal, dated 25-11-2005, whereby the appeals filed by the convict-appellants and the complainant were dismissed.

2. Brief facts leading to the background of the appeals are that a case under section 324/34, A.P.C. was registered at Police Station Dudyal on the complaint of Arshad Mehmood. It was reported that on 14-8-2004 at 5-45 p.m. goats of Sajid son of Abdur Rashid came into the fields of the complainant. He turned them out and made a complaint to him. In reply the accused used harsh words and came at the place of occurrence armed with .12 bore gun. Khalid and Abdur Rashid armed with hatchet also came there and attacked the complainant. Sajid accused fired two shots at him. The pellets hit the complaint at his left arm and hand. On hearing the sound of firing the complainant's brother Qurban came at the place of occurrence. Khalid accused inflicted injuries at head, right arm, right hand and back of the complainant with hatchet. He fell down. His brother tried to rescue him upon which Abdur Rashid accused inflicted injuries with hatchet on his both arms and left leg while Khalid accused inflicted hatchet injury at the head of Qurban. The occurrence is stated to be witnessed by Qurban Hussain son of Ghewa Khan. Motive behind the occurrence was past litigation between the parties.

3. During investigation section 337, A.P.C. was added and a challan for commission of offences was submitted before the trial Court against the accused-appellants. After completion of the trial, the Court convicted them. Khalid accused was sentenced to five years' rigorous imprisonment and Rs.41,350 Arsh under section 337-A(3), A.P.C., five years' rigorous imprisonment along with Rs.62,125 Arsh under section 337-A(4), A.P.C., three years' rigorous imprisonment and Rs.10,000 Daman under section 337-F(5), A.P.C. and three years' imprisonment along with Rs.10,000 Daman under section 337-F(6), A.P,C. Sajid Rashid was sentenced to three years' imprisonment and Rs.10,000 fine under section 337-F(3), A.P.C. while Abdur Rashid was sentenced to 3 years' imprisonment and Rs.10,000 Daman under section 337-F(3), A.P.C. Sajid Rashid accused was further convicted under sections 13/20/65, A.A. and was sentenced to one year's imprisonment along with Rs.5,000 fine.

4. Feeling aggrieved by the said judgment of the trial Court, the appellants and complainant filed appeals before the Court below and same were dismissed, however, the case to the extent of offence under sections 13/20/65, A.A. was remanded to the trial Court.

5. The correctness and legality of the above mentioned judgment has been challenged through the above titled appeals.

6. Since both the appeals arise out of same order of the trial Court, therefore, these shall be disposed of through this common judgment.

7. I have heard the learned counsel for the parties perused the record of the case.

8. While going through the record of the case I noticed that Khalid and Abdur Rashid accused appellants sustained injuries during the occurrence but the same were suppressed by the eye-witnesses, however, medico-legal reports pertaining to them were placed on record by the prosecution. Both the Courts below ignored the reports on the ground that the same were not tendered in the evidence. 8-A. A careful consideration of the record shows that neither the reports were tendered in the evidence nor any question regarding the injuries was asked from scriber. It is a settled law that a document not tendered in the evidence by the prosecution cannot be read and relied upon against an accused for the purpose of conviction but the prosecution is not absolved of its consequences if it creates doubt in prosecution case and thus, extending any benefit to the accused, cannot be discarded from consideration.

9. In the present case the fact that Khalid and Abdur Rashid accused-appellants sustained injuries during the occurrence was deliberately concealed by the eye-witnesses. The number and nature of the injuries present at their person shows that both the parties inflicted injuries to each other and. the accumulative effect needs serious consideration. I would have considered and decide the matter myself but is deemed appropriate to have the wisdom of trial Court first.

10. In light of the facts listed above, the impugned judgment is set aside and the case is remanded to the trial Court with the direction that it shall decide afresh in the light of the above mentioned observations.

11. It was brought in my notice that accused appellants were on bail during trial, therefore, they shall be released from custody on furnishing bail bonds in sum of Rs.2,00,000 each with two sureties and personal bonds in the like amount to the satisfaction of any Magistrate 1st Class, Dudyal.

12. As the matter has been disposed of on the aforesaid point, therefore, I do not feel any necessity to advert to other points raised by the learned counsel for the parties. The appeals stands disposed off accordingly. H.B.T./13/Sh.C.(AJ&K) Order accordingly.