2002 PLP 513 (YLR)

Approximately 10 to 15 per cent super facial burns on various arts of body i.e. on face, right hand left hand including forearm, right thigh with knee joint. Mst. Zarina Bibi was also examined by Dr. Ali Abbas, Eye Specialist and remained under treatment of Dr. Saleem A. Malik, Professor of Plastic Surgery, Pakistan Institute of Medical Sciences, Islamabad. The injured ladies namely Mst. Zarina Bibi and Mst. Khadija Bibi were the star witnesses of the occurrence. Muhammad Aslam, Assistant Sub-Inspector, (P.W.6) drafted the formal F.I.R. Exh.P.A/1 on the basis of complaint Exh.P.A.- Waheed Ahmad, Constable (P.W.7) remained associated with the investigation. Aurangzeb son of Mir Gul Khan (P.W.8) was the driver of bus, in which, the said incident happened. Muhammad Asghar Bhatti, Assistant Sub inspector (P.W.9) has recorded the statement of Mst. Zarina Bibi Exh.P.A in the hospital and investigated the case. Muhammad Amin (P. W.10) stated that Ghulam Maqsood purchased acid from his shop. Muhammad Anwar (P.W.11) witnessed the recovery of plastic bottle (Exh.P.9) of acid which was thrown on the complainant. Shaukat Ahmad Sub Inspector, (P.W.13) has partly investigated the case and submitted the challan. The accused in his statement under section 342, Cr.P.C., while denying the charge pleaded innocence. In reply to question No.6, he has made the following answer:-- "I relied upon the statements of facts dated 18-12-1999 Exh.D.B produced before the Court earlier alongwith a copy of the F.I.R. Exh.D.C, as background of this incident. I threw acid on Mst. Zarina Bibi out of `Ghairat'. I tried to a settlement of difference through compromise and as she declined to compromise, I got provocated and thus, acid carried in a bottle purchased from Maulvi Muhammad Amin P.W. threw on the face of Mst. Zarina Bibi." The written statement filed by the appellant in Urdu was placed on record as Exh.D.B. The relevant portion of Exh.D.B is re-produced here in under:- The occurrence in the present case is admitted. The prosecution version is supported by the statement of Mst. Zarina Bibi (P.W.1) and Mst. Khadija Bibi (P. W.5), who sustained injuries in the occurrence. Mst. Zarina Bibi as a result of sustaining injuries suffered permanent loss of the following organs of the body. The permanent ,deformation of nose, permanent destruction`, of right ear and left hand. Dr. Muhammad Naseer Ahmad (P.W.12) deposed that .Mst. Zarina Bibi in addition to the suffering of permanent loss of abovesaid organs also suffered from disfigurement of the face through acid injuries. Dr. Muhammad Ashraf (P.W.4) on examination of Mst. Zarina-Bibi referred her to Surgical Unit of Eye Department and Dr. Ali Abbas, Eye Specialist, on examination of victim declared the injury as Iflaf-e-Salahiyyat-e-Udw. Dr. Saleem A. Malik, Professor of Plastic Surgery, gave opinion that the face of the victim was badly deformed with missing nose and deformed eyelid, visual loss and distorted mouth. The appellant in his statement under section 342, Cr.P.C. has stated that due to involvement of victim in immoral; activities, he was mentally disturbed and despite his best efforts, the victim did not mend herself. The appellant due to Ghairat having not tolerated the life style of his wife decided to disfigure her face by throwing acid. The appellant further stated that on the day of occurrence, with the help of Muhammad Banaras, his co-accused made a final attempt for compromise with the victim but on failure, he threw the acid on her. The bus driver, while appearing in the witness-box stated that the occurrence took place at 8-30 a.m. near Carriage Factory. The admission of the appellant would suggest that he being revengeful against the victim for her activities to disfigure her face by throwing the acid on her and thus, it was not an occurrence, in which, .the appellant due to grave and sudden provocation threw acid upon the victim, rather .he with pre-determination was carrying acids to throw it on the victim. The learned trial Judge framed the following charge against the appellant.

1. That on 24-4-1999, at about 8-30 a.m., in the bus near Carriage Factory, Police Station Industrial Area, Islamabad, you Ghulam Maqsood accused, in furtherance of common intention your co-accused Muhammad Banaras threw acid on Mst. Zarina Bibi complainant and permanently destroyed her nasal bridge, right ear and left eye and thus committed an offence-of Itlaf e-Udw, punishable under section 334/34, P.P.C. which is within the cognizance of this Court.

2. That on the same day, time and place, you Ghulam Maqsood accused, in the furtherance of common intention of your co-accused Muhammad Banaras, by throwing acid on Mst. Zarina Bibi Complainant, impaired the functioning of the organs of the body of Mst. Zarina Bibi and disc caused disfigurement of her face and thus committed an offence of Itlaf-e-Salahiyyat-e-Udw, which is punishable under section 336/34, P. P. C. which is within the cognizance of this Court.

3. On the same day, time and place you Ghulam Maqsood accused in the furtherance of common intention of your co-accused Muhammad Banaras threw acid on Mst. Zarina Bibi complainant and caused severe body injuries, with such intention and knowledge and under such circumstances, if Mst. Zarina Bibi had expired consequently, you both would have been guilty of her Qatl-e-Amd and thus committed an offence of attempted murder punishable under section 324/34, P.P.C., which is within the cognizance of this Court.

4. That on the same day, time and place you both accused, in the furtherance of your common intention caused injuries to Mst. Jan Bibi and Mst. Khalida Bibi by throwing acid and thus committed an offence punishable under section 337 A(i)/34, P.P.C., which is within the cognizance of this Court.

5. That on the same day, time and place you both the accused persons, in the furtherance of your common intention, stroke terror and created sense of insecurity/fear in the passengers, travelling in the bus and thus committed an offence of terrorism, punishable under section 7 of Anti-Terrorism Act, 1997, which is within the cognizance of this Court. The appellant was convicted for causing permanent destruction of nose, one eye, one ear and disfigurement of face. It is C provided under section 336, P.P.C. that m case of Itlaf-e-Salaltiyyat-i-Udw, as a result of an injury caused to the victim, the offender shall be liable to Arsh and may also be punished with imprisonment of either description, which may extend to 10 years as Tazir. In the present case, the learned trial Judge having awarded the appellant punishment of Arsh and Daman, for each injury also awarded sentence of 10 years separately for each injury under section 334 read with 336, P.P.C. The learned counsel representing the accused in this Jail appeal as defence counsel has contended that in view of admission made by the appellant in his statement under section 342, Cr.P.C., he would not challenge the conviction on merits and submitted that the sentence of imprisonment under sections 334 and 336 P.P.C., being discretionary with the Court if all the sentences are directed to run concurrently instead of consecutively, the appellant would be satisfied. The learned Assistant Advocate General has submitted that in view of the nature of the injuries and the damage caused to the victim, the appellant was rightly convicted under sections 334 and 336, P.P.C. The happening of occurrence in the present case in bus and causing of injuries to the victim by throwing acid on her is admitted with the plea that the same was done out of Ghairat and, therefore, there is no need to discuss the evidence in detail. The sustaining of injuries by Mst. Zarina Bibi and permanent loss of organs of body was proved through her statement 'and admission of the appellant. The state of affairs is fully supported by the medical evidence therefore, the conviction of the appellant would be unexceptionable. Considering the question of sentence, I find that no exception can be taken to the punishment of Arsh and Diyat for each injury separately awarded to the appellant under section 337-R, P.P.C:. However, the separate sentence of imprisonment under sections 334 and 336, P.P.C. for a term of 10 years for each injury sustained in the same transaction would need examination. The different organs of victim have been destroyed with disfigurement of face by the act of throwing acid on her by the appellant. Sections 334 end 336, P.P.C. are reproduced hereinunder:

Section 334. Punishment for Itlaf-i-Udw.-- Whoever by doing any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, causes Itlaf-e Salahiyyat-i-Udw of any person, shall in consultation with authorized Medical Officer, be punished with Qisas, and ii the Qisas is not executable keeping it view the principles of equality it accordance with the Injunctions of Islam, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as Tazir. Section 336 P.P.C. Punishment for Itlaf-e-Salahiyyat-i-Udw.

Whoever, by doing any act wit: the intention of causing hurt to an person, or with the knowledge the he is likely to cause hurt to any person causes Itlaf-e-Salahiyyat-i -Udw of any person, shall, in consultation with the authorized Medical Officer, be punished with Qisas and if the Qisas - is not executable keeping in view the principles of equality in accordance with the Injunctions of Islam, the Offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as Tazir. In a similar case titled Muhammad Sharif v. The State, Criminal Appeal No. 125 of 1994, a Division Bench of this Court in the light of the facts of that case took the following view:-. "The charge having framed under section 334, P.P.C., the appellant has been sentenced to ten years' rigorous imprisonment each for individual organ, namely, vagina, Anus and Urinary bladder for permanent destruction of the same. Itlaf-e-Udw has been defined under section 333, P.P.C. and the punishment for the hurt causing Itlaf-e-Udw is provided under section 334, P.P.C. Section 333; P.P.C. provides as under:-- "Whoever dismembers, amputates, severs any limb or organ of the body of another person is said to cause Itlaf-e-Udw." The definition of Itlaf-i-Salahiyyat i-Udw as provided under section 335, P.P.C is to the following effect:- "Whoever destroys or permanently impairs the functioning, power or capacity of an organ another person, or causes permanent disfigurement is said cause Itlaf-I-Salahiyyat-I-Udw." The offender under section 336 P.P.C. is liable to Arsh and can also be punished with imprisonment of either description for a term which may extend to ten years as Tazir. According to the medical evidence, three organs of the private parts of the lady have been permanently caused functioning and therefore, it could also be an offence of Itlaf-I-Salahiyyat-i-Udw, punishable under section 331, P.P.C The single injury caused to one transaction damaged three organs permanently and the substantive sentence provided thereunder is in the nature of Arsh and in addition the Court may in its discretion punish with imprisonment of maximum term of ten years. The question whether the appellant can be punished with imprisonment separately for each organ in addition to Arsh or the same being independent to Arsh is intended to be awarded for the injury which caused Itlaf-i-Salahiyyat-i-Udw of one or more than one organ needs determination. Arsh has been defined under section 299(b), P.P.C. which read as under: -- "Arsh means the compensation: specified in this chapter to be paid by the victim or his legal heirs under this chapter. " Arsh is compensation for the offence relating to the various kinds of hurt. In some cases, it is awarded in addition to the sentence of imprisonment, but in case under' sections 334 and 336, P.P.C., the same is mandatory and sentence of imprisonment can be in addition to Arsh. The quantum of Arsh has been provided under section 337-Q, P.P.C., which is reproduced as under:-- "The Arsh for causing Itlaf of an organ which is found singly in a human body shall be equivalent to the value of Diyat. " Section 337-W, P.P.C. provided as under:-- " Merger of Arsh

(1) where an accused causes more than one hurt, he shall be liable to the Arsh specified for each hurt, separately: Provided that where. (a) hurt is caused to an organ, the accused shall be liable to Arsh for causing hurt such organ and not for Arsh for causing hurt to any part of such organ, and; (b) the wounds join together and form a single wound, the accused shall be liable to Arsh for one wound: (2) Where, after causing hurt to a person the offender causes death of such person by committing Qatl liable to Diyat Arsh shall merge into such Diyat. Provided that the death is caused before the healing of the wound caused by such hurt. " Illustration (ii) to this section is reproduced hereunder " A twice stabs Z on his thigh. Both wounds are so close to each other that they form into one wound. A shall be liable to Arsh for one wound only. to ascertain the correct position in case of single wound. The legal position emerged from the examination of the above provisions of Law is that Arsh is compensation which is generally awarded for the injury caused to a person, but under section 337-Q, P.P.C., Arsh can be given for an individual organ. The sentence of imprisonment is not substitution of Arsh or a mandatory in addition to Arsh to be awarded for damaging each organ as a result of one hurt or compound hurt. The victim is compensated through Arsh whereas the sentence of imprisonment as Tazir is awarded for criminal administration of justice. Thus, in a case, in which compensation as Arsh can be given for each organ separately, in terms of section 337-W, P.P.C., the punishment of imprisonment as provided under section 334 or 336 P.P.C. will be for the hurt and not for organ and the same cannot be awarded more than once for each organ separately. Further, if more than one injury from into one wound, there will be one Arsh as provided under section 337-W P.P.C. In the present case, three organs, namely rectum, vagina and urinary bladder of the complainant having permanently damaged, the Arsh for each organ could be given independently equal to value of Diyat but the sentence of imprisonment could not possibly be awarded for more than one term. The three organs were damaged as a result of one injury in single transaction and the appellant having charged as such, could not be punished twice or thrice for the same offence. In the light of foregoing discussion, we maintaining the conviction under section 334, read with section 336, P.P.C. and modifying the sentence direct for payment of Arsh equal to Diyat of the value of Rs.2,10,000 separately for each organ (total Rs,6,30,000) with sentence of imprisonment of ten years rigorous imprisonment on single count dismiss the appeal. Considering the cruel act of causing the injury with extensive damage to the private parts of body of a young woman, we do not find the appellant entitled for benefit of section 382-B, Cr.P.C. With the above modification in the sentence the appeal is dismissed. " The perusal of sections 334 and 336, P.P.C. would show that if more than one injury is caused or organ of body is damaged as a result of an act in the same transaction, the offender in addition to the punishment of Arsh and Diyat for each organ can also be punished with imprisonment of either description, which may extend to 10 years for the act of causing such injuries, therefore, the sentence of imprisonment cannot be awarded for each injury separately under section 336, P. P. C. In the present case the act of throwing of acid upon the victim was a single transaction therefore, the sentence of imprisonment separately for each injury sustained in the same transaction was not proper. I, therefore, while maintaining the sentence of Arsh and Daman under section 337-R P.P.C. awarded to the appellant for individual injury caused to the victim by the appellant, direct that the appellant instead of undergoing sentence of rigorous imprisonment for 10 years each on six count shall serve sentence of ten years' rigorous imprisonment only on one count, under section 336, P.P.C. However, keeping in view the damage caused to the victim, I do not find any justification for extension of benefit of section 382-B, Cr.P.C. to the appellant, therefore, I am of the view that the appellant shall not be entitled to the said benefit and substantive sentence shall run from the date of his conviction. The occurrence took place in the bus in which both the victim and appellant were travelling. The appellant being annoyed with the activities of victim was revengeful against her and without any intention to cause terror and create sense of insecurity/fear to the passengers travelling in the bus threw acids on his wife. It was a case of private revenge and the mere fact that the parties were travelling in public transport' and the occurrence took place in the bus would not attract section 6 of Anti-Terrorism Act, 1997, therefore, the sentence awarded to the appellant under section 7-B of Anti-Terrorism Act, 1997 is set aside. The sentence awarded to the appellant under section 324, P.P.C. and 337 A(i), P.P.C. is, however, maintained and the different sentences under sections 336, P.P.C., 337-A(i), P.P.C. and 324, P.P.C. shall run consecutively. With the above modification in the conviction and sentence awarded to the appellant by the trial Court. This appeal fails, which stands dismissed accordingly. N.H.Q./G-153/L Order accordingly.