P L D 1983 Supreme Court 32 (PLP)

ASLAM RIAZ HUSSAIN, J.-This petition by Muhammad Khalid is directed against the judgment of the Lahore High Court, dated 30-3-1982, whereby the revision petition filed by him was dismissed but the conviction was altered from 307, P. P. C. to 324, P. P. C. and reduced the sentence of imprisonment as well as that of fine.

2. The petitioner was accused of attacking Ghulam Sarwar (P. W. 2) with a dagger and inflicting 3 blows on him, causing two injuries on his neck and one on the right mandible.

3. The occurrence in this case took place at 11 a. m. on 10.1-1979 at the shop of the complainant. Motive for the occurrence is stated to be that earlier on the day of occurrence, Muhammad Khalid petitioner, had visited the shop of Akbar Ali complainant (P. W. 1) and his brother Ghulam Sarwar (P. W. 2). When he left the shop a customer came to purchase nails and when the complainant started weighing the nails he detected that three weights were missing from his shop. He suspected Muhammad Khalid petitioner having stolen the same. On the next day, at about 8/9 a. m. he and .his brother Qhulan4 Sarwar went to the father of the petitioner and complained about the theft by his son. Muhammad Sadiq (father of the petitioner) thereupon called his son and reprimanded him, for the theft and abused as well as slapped him. The petitioner resented this and threatened the complainant and his brother that he would avenge the insult. At about 11 a. m. on the same day he went to the shop armed with a dagger. Finding that the complainant and Ghulam Sarwar (P. W. 2) were sitting there he attacked and gave dagger blows to Ghulam Sarwar (P. W. 2 thereby causing two injuries, one on the neck and the other on the mandible. Fortunately, however, these injuries did not prove to be serious and Ghulam Sarwar (victim of the attack) survived. The injuries have been described by the doctor as follows : (1) A stab wound 2.5 cm x 5 cm x deep going on the left side of upper part of neck 2.6 cm below the angle of left mandible. (2) An incised wound 2 cm x 2 mm x muscle deep on the angle of right mandible. (3) A stab wound 2.6 cm x 5 mm x deep going on the outer and upper part of right side of neck just below the angle of right mandible. During the investigation the dagger in question was also recovered from petitioner's possession and found to be stained with human blood.

3. At the trial statement of Ghulam Sarwar, P. W. was corroborated by the recovery of crime weapon (i. e. dagger P. 2) from the person of the petitioner at the time of his arrest. The trial Court believed the prosecution evidence and convicted him under section 307, P. P. C. and sentenced him to 3 years' R. I., and a fine of Rs. 1,000 or in default to undergo further R. 1. for six months. The petitioner's appeal was dismissed by the learned Additional Sessions Judge, Sahiwal, vide order dated 1-2-1982. He then filed a Criminal Revision. Before the High Court the learned counsel for the petitioner "frankly conceded that the evidence on the record had proved the petitioner's guilt beyond reasonable doubt" and that it was, indeed, the petitioner who, had attacked and injured Ghulam Sarwar. The learned counsel, however, argued before the High Court that in view of the fact that the injuries were found to be simple in nature and the victim had survived, petitioner's conviction under section 307, P. P. C. was not sustainable, The learned Judge in Chamber, therefore, partly accepted the revision petition and altered the conviction from 307, P. P. C. to 324, P. P. C. and reduced sentence of the petitioner from 3 years' R. 1. to 1 J years' R. I., and also reduced the sentence of fine from Rs. 1,000 to Rs. 500 or in default of payment of fine to undergo further R. I., for 3 months. For this the learned Judge in Chamber gave the following. reasons in paragraph 8 of his judgment "I have certainly considered the medical evidence on record and I find that the injuries suffered by Ghulam Sarwar (P. W. 2) were not of serious nature and, therefore, he cannot be said, by any stretch of imagination, that the petitioner intended to cause the death of Ghulam Sarwar. Intention as it said, is a state of mind which' is not ordinarily ascertainable. The thought of a man, therefore, is not triable because "even the devil knoweth not the thought of man". The intention is to be gathered or inferred only from external acts and, therefore, it is very necessary to examine the act itself committed by the person accused of that act. I am, therefore, satisfied in my own mind that had the petitioner intended to take the life of the injured then he would have easily inflicted deeper and more deadly blows upon the injured which he did not do."

4. Still not being satisfied the petitioner has filed the present petition for Leave to Appeal against the above-noted judgment of the High Court.

5. We have heard the learned counsel for the petitioner and goner through the impugned judgment. Before us the petitioner's counsel argue![ that -even the conviction under section 324, P. P. C. was not sustainable.! on the evidence on the record, and urged that the offence committed by they petitioner fell only under section 334, P. P. C. (simple hurt under grave and! sudden provocation) in as much as the insult suffered by the petitioner at the! hands of his father who. had slapped and abused him on a complaint having, been made to him by Ghulam Ahmad P. W. had provoked him into attacking, the latter with a dagger. The argument is misconceived and has no force whatsoever. In the first place it is petitioner's father who had slapped and" abused him (Muhammad Khalid petr.) Secondly, the provocation, if any was not `sudden' because the incident of causing `insult' had taken place ail 8/9 a. m. at his own house, while the petitioner went to complainant's shot), and attacked Ghulam Sarwar (P. W. 2) 2/3 hours later, at 11 a. m. and lastly! in any case, it would not, by any stretch of imagination, be called grave provocation. As a matter of fact we are of the view that the offence made out by the evidence on the record falls under section 307, P. P. C. and the reasons given by the learned Judge in Chamber for reducing the offence by altering conviction from 307, P. P. C. to 324, P. P. O. are wholly untenable. The petitioned, gave repeated dagger blows to Ghulam Sarwar (P. W.) which were aimed) at his neck, a very delicate and valuable part of the human body. It is the victim's sheer good luck that he survived. Had he died the offence would have obviously fallen under section 302, P.P.C. If the State or the complainant had filed !-petition it could have succeeded. In view of what has been observed above the petition is dismissed as being without any merit. s. A. H. Petition dismissed.