1990 P Cr (PLP)

(7) A contusion 5" x 1-1/2" on the back of right chest. (8) Multiple contusions on the chest back side and right side. Injuries Nos.l, 2 and 3 were caused with sharp-edged weapon and rest were caused with blunt weapon. All the injuries were simple in nature. On the same day, the said Doctor medically examined Dalil Khan P.W. and found the following injuries on his person: (1) An incised wound 1-1/4" x 1/4" x bone deep on the back of head on right side. (2) An incised wound 1-1/2" x 1/8" x bone deep on the left side of head. (3) A contusion 3" x 1" on the left side of head. (4) An abraided area 1/8" x 1/8" on the nose. (5) A contusion 1-1/2" x 1/2? on the left shoulder. (6) Multiple contusion on the back of left arm. (7) Multiple contusion on the back of left c1bow joint. (8) A contusion 2" x 1/2" on the back of chest upward (9)A contusion 2-1/2" x 1/2" on the back of chest left side, under the injury No.8 (10) An abrasion 2" x 1/8" on the back of right forearm. (11) An abrasion 1" x 1/2" on the abdomen on left side. (12) A contusion 3" x 1" on the left side of abdomen. (13) An abrasion 1-1/2" x 1/8" on the front and inner aspect of right thigh. In the opinion of the Doctor, injuries No.l and 2 were caused by sharp-edged weapon whereas the remaining, injuries were caused by blunt weapons. All the injuries were declared simple in nature, Sardar Khan, complainant was also medically examined by the said Doctor on the same day and following injuries were observed on his person: (1)An incised wound 1" x 1/8" x bone deep on the left side of head. (2)A contused wound 1-1/2" x 1/8" x bone deep on the left side of head. (3)An abrasion 2" x 1/8" on the right shoulder (4)A contusion 3" x 1" on the left shoulder (5)A contusion 2" x 1/2" on the right side of chest (6)A contusion 2" x 1/2" on the back of chest on right side (7)A contusion on the back of right thigh It was opined by the Doctor,, that injury No.l was inflicted with sharp? edged weapon while the remaining injuries were caused with blunt weapon. All the injuries were simple in nature. The moot point between the parties is whether on account of non-?production of the investigating officer, the conviction and sentence passed against the petitioners can stand in the eye of law or not? The contention of Mr. Altaf Elahi Sheikh, learned counsel for the petitioners is that in view of the law laid down by the superior Courts, it is not desirable at this belated stage to send back the petitioners to the trial Court for their re-trial. It is submitted that the occurrence took place as back as 22-9-1982. On this basis he states that re-trial of the petitioners should be refused. However, he does not challenge the conviction of the petitioners as recorded by the learned appellate Court. Learned counsel has also brought to my notice that so far the petitioners Mian Muhammad, Ghulam Hussain and Elahi Bakhsh have suffered in Jail for a period of one and a half months as under-trial prisoners. Similarly, they remained in Jail for about fifteen days after their conviction. In my considered view, Asad Ullah Khan, Investigating Officer was a necessary witness in the case. There is nothing on record to show that he was not at all available in Pakistan. Thus, the trial Court did not fulfil the necessary requirement of law before allowing permission to lead secondary evidence in the case in order to prove the writings of Investigating Officer. The admitted position in the case is that the Investigating Officer was wrongly dropped from the list of the witnesses for no adequate reasons as envisaged by the law on the subject. All the learned counsel agree that there was no justification to drop the Investigating Officer in the case. In my view, he was an essential witness in order to show as to where the occurrence took place by proving the site-plan. This site-plan prima facie shows that the occurrence took place on the path and definitely not in the agricultural field of the complainant party. The evidence deposed by the prosecution witnesses discloses that the A occurrence took place on their land when they raised objection that the accused party should not pass through their fields. Thus, it was necessary that the Investigating Officer should have appeared in Court to prove the site plan Exh. P.W. 5/A in order to clear the doubts about the place of occurrence. The judgment cited by the learned Law Officer is based on different facts and not applicable to the facts and circumstances of the case in hand. Each case has to proceed according to its own peculiar facts and circumstances. Respectfully following the rule laid down in Fazal Muhammad and another v. State 1970 S C M R 405, Muhammad Ashraf and another v. The State 1972 P. Cr. L J page 1259, Muhammad Siddique and another v. The State 1974 P Cr. L J 180, Muhammad Aslam alias Achhoo v. State 1976 P Cr. L J 443 and State v. Muhammad Rafique 1984 P Cr. L J 961, I do not feel any hesitation in setting aside the conviction and sentence of the petitioners. In my considered view, prosecution did not succeed to prove the actual `place where the occurrence took place. This creates doubt as to where occurrence happened. Benefit of doubt, under the circumstances has to be B given to the accused. Consequently the revision petition is allowed and conviction and sentences of the petitioners are set aside. They are on bail and shall be discharged from their bail bonds. In view of my findings above, the revision petition (Criminal Revision No.39 of 1984) does not arise and as such the same is dismissed. H.B.T./M-1993/L???????????????????????????????????????? ?????????????????????????Revision petition allowed.