1968 P Cr (PLP)

Date of hearing: 27th May 1968. Allah Bakhsh petitioner aged 26 years, was convicted under section 326, P. P. C. and sentenced to one year's rigorous imprison ment, with a fine of Rs. 500 or in default to further undergo rigorous imprisonment for six months. His appeal was dismissed by the learned Sessions Judge vide his order dated the 1st of August 1967. He also issued notice to the petitioner to show cause why his case should not be recommended to the High Court for enhancement of sentence. The petitioner, against the order of the learned Sessions Judge has preferred this revision (Criminal Revision No. 87 of 1967/13 W P). The learned Sessions Judge acting under section 438, Cr. P. C. has also made a reference (Criminal Revision No. 926 of 1967/13 W P) to this Court for enhancement of sentence of the petitioner. Since both the revisions arise out of the same order they will be disposed of together by this order.

2. Mst. Kundan (P. W. 2), aged about 40 years, was married to one Mahmood, about 20 years back. 7 hereafter the relations of Mst. Kundan P. W. became strained with her husband and she started residing from place to place. On the 6th of August 1966 she along with her two children was putting up in the house of the petitioner, who is her brother's son. At about 10 or 11 a.m. when she was placing flour in the almirah, the petitioner suddenly caught hold of her and took out a knife from his loin cloth in order to give her a blow. She attempted to ward off the blow, but received an injury on her left hand. After that the petitioner bound her neck with his turban and cut her nose, She raised an alarm, which brought her brothers, Ghulam Haider (P. W. 2) and Haji Muhammad Bakhsh (P. W. 3), to the spot. They saw the petitioner running away. Haji Muhammad Bakhsh P. W. took her to the hospital at Khanpur, where Lady Doctor Zakia Khanum (P. W. 7) on the same day examined her and found the following injuries on her person:‑ (1). An incised wound taking away the nose and a part of upper lip, the cut portion was hanging by only a small flap of skin, " x 1/6", at the left angle of the mouth. Cutting line 1/3" from the root of the nose removing upper half of right nasal wall and tip of nose and a part of nasal septum fanes through mid‑line of upper lip. On the left side cutting line removed the wall of the left nasal wall and passed through the left nasal fold to the left angle of mouth. (2) An incised wound " x 1 " skin deep transversely on proximal part of palmer surface of middle phalanx of left ring finger. In the opinion of the lady doctor both the injuries had been caused with a sharp‑edged weapon, and injury No. 1 was grievous, while injury No. 2 was simple.

3. On getting a message from the hospital Sub‑Inspector Muhammad Sadiq (P. W. 8) went to the hospital at 4 p.m. and recorded statement Exh. P. A. of Mst. Kundan P. W. at her dictation on the same day at 5 p.m., Sub‑Inspector Sheikh Muhammad Iqbal (P. W. 6) prepared formal first information report Exh. P. A./1 on the basis of Exh. P. A. and registered the case. Assistant Sub‑Inspector Sheikh Muhammad Iqbal (P. W. 5) investigated this case. He prepared injury statement Exh. P. C. of Mst. Kundan P. W. on the 7th of August 1966, the A. S. I. arrested the petitioner, who, as a result of interrogation, led him to his house and from underneath his cot produced chhuri Exh. P. 1, which the A. S. I. took into his possession vide memo. Exh. P. B. The above recovery was witnessed by Abdul Karim (P. W. 4).

4. The petitioner denied his guilt and stated that his uncle had engineered this case against him because of party faction. In his defence he examined Abdul Ghafoor and Allah Diwaya son of Ghulam Haider P. W.

5. In support of its case the prosecution examined Mst. Kundan, Ghulam Haider and Haji Muhammad Bakhsh P. Ws. The prosecution also examined Abdul Karim (P W. 4), in whose presence A. S.

1. Sheikh Muhammad lqbal (P. W. 5) recovered chhuri Exh. P. I at the‑instance of the petitioner. The chhuri was not sent to the Chemical Examiner in order to find out whether it was stained with blood or not. to view of the above it cannot be said with judicial certainty that it was used in the commission of the offence. This recovery, therefore, has no corroborative value.

6. Mst. Kundan P. W. stated that without any reason the petitioner suddenly caught hold of her and cut off her nose. Ghulam Haider P. W. stated that on hearing the alarm raised by Mst. Kundan P. W., he rushed to the place of occurrence and saw the petitioner running away from there. He admitted that his eye‑sight was weak and that he could not identify any person from a distance of about 15 to 20 karams. The learned counsel for the petitioner, therefore, argued that no reliance should be placed on his testimony because he could not have been able to identify the petitioner when he reached the spot. This contention has no force because in the first place the petitioner being his close relation was well known to him and secondly he did not say that he had seen the petitioner running away from a distance of about 15 to 20 karams. The fact that he was able to identify him shows that he must have seen him from much closer distance, Haji Muhammad Bakhsh P. W., however, did not support the prosecution. He stated that he learnt about the occurrence from one Abdul Haq, Munshi of the Chairman, and that when he went to the spot he found Mst. Kundan P. W. with her nose cut, and that he neither asked her as to who was responsible for giving her that injury nor she gave the name of the culprit to him. This conduct is absolutely unnatural. In cross‑examina tion by the learned counsel for the petitioner he contradicted himself by stating that Mst. Kundan P. W. had told him that it was Jiwan who had cut her nose. In view of the above it is clear that he has been won over and as such no reliance can be placed on his testimony. There is nothing on the record to show that Mst. Kundan P. W. had any enmity against the petitioner in order to falsely implicate him. She, as a matter of fact, was staying with him as his guest and, therefore, it is difficult to P believe that she would at the instance of others substitute the petitioner in place of Jiwan. Her statement stands full corroborated by the statement of Ghulam Haider P. W., who actually saw the petitioner running away from the spot.

7. The defence evidence, on the other hand, does not appear to be reliable. Abdul Ghafoor (D. W. 1) stated that it was one Jiwan, who had cut the nose of Mst. Kundan P. W. He actually did not witness the occurrence and his evidence is based on hearsay and as such is of no help to the petitioner, Allah Diwaya (D. W. 2) stated that his father had a dispute with one Ghulam, Qadir, father of the petitioner, regarding some land, that Ghulam Qadir was dead, but the dispute was still going on, and that his (Allah Diwaya's) father on account of that enmity had got the petitioner falsely implicated in this case. He also stated that when he reached the spot he found Mst. Kundan P. W. with her nose cut. She told him that it was Jiwan, who had cut her nose. In cross‑examination he stated that when he reached the spot the police had already left. According to the prosecution long before the arrival of the police at the scene of offence, Mst. Kundan had left for the hospital and, therefore, he could not have met him at the spot when she told him that it was Jiwan who had cut her nose. In view of the above and the fact that he has been won over no reliance can be placed on hi C testimony. I am, accordingly, satisfied that the prosecution .ha successfully brought home the guilt to the petitioner and that he has been rightly convicted.

8. Mst. Kundan P. W. appeared and filed an applica tion that the petitioner be forgiven and his sentence should no be enhanced. I am not going to take any notice of such a application because the petitioner by cutting the nose of Mst. Kundan P. W. has permanently disfigured her. According to section 4‑A of Whipping (West Pakistan Amendment) Ordinance 1963 (XLII of 1963) the petitioner has to be punished wit whipping in addition to the other punishment awarded to him.

9. In the result I accept the reference of the learned Sessions judge, uphold the conviction of the petitioner under section 326, P. P. C. and enhance his sentence by directing that he should be given seven lashes in addition to the sentence already awarded to him. The revision petition filed by the petitioner is disposed of accordingly. Petition dismissed. Sentence enhances