1998 PLP 1875 (MLD)

ABDUL WAHEED SIDDIQUI, J.

Appellant has assailed a judgment dated 30-11-1996 delivered by the Court of Additional Sessions Judge, Dera Allah Yar whereby he has been convicted under section 337-J, P.P.C. and is sentenced to undergo R.I. for ten years and Daman of Rs.5000 in favour of each of the victims to be paid by him and fine of Rs.10,000 or in default to suffer six months more imprisonment. He has also been convicted under section 22 (b) Offences Against Property (Enforcement of Hudood) Ordinance. 1979 and has been sentenced to undergo 3 years R.I. and fine of Rs.2000 in default to suffer 2 months more.

2. Ghulam Farid (P.W.7) lodged an F.I.R. at P.S. Sibbi one 11-5-1996 which is based on his earlier statement given at Chawki Railway Police Station Dera Allah Yar. In the said statement he has alleged that he is resident of Taunsa Sharif but is in service in F.C. Balochistan. He alongwith his another companion Bilal (P.W.8) boarded Chiltan Express from Quetta for Dera Ghazi Khan. A third person Khursheed Ahmed had also joined them. When the train started, a person of about 30/32 years of age also boarded in the same bogy and sat down in front of their seat. During the journey, they engaged in chit chat and offered each other edibles. That person offered them packets of juices and he himself also started drinking the juice. Complainant's two companions drank the same but since he was smoking a cigarette he did not start. After having completed the smoke, he started drinking, but he could not cherish the taste of juice and threw it outside the train. After some time the train reached Dera Murad Jamali Railway Station and in the meanwhile his companions who had completed the drinks became drowsy and then went into a state of semi-consciousness. Finding this situation, the person who had offered juices, tried to escape towards another bogy, but other travellers followed him and the police person available at the railway station caught-hold of him. Later on when train reached Dera Allahyar, all the three ailing persons in semi-conscious condition were sent to civil hospital. After gaining consciousness, the complainant found Rs.130 missing from his pocket.

3. The Appellant was charged under sections 337-J P.P.C. and 379 P.P.C. read with article 2(b) Offence Against property (Enforcement of Hudood) Ordinance, 1979 to which he did not plead guilty. To prove its case prosecution examined 11 witnesses. Appellant/accused remained un-represented throughout and has not crossed the P.Ws. In his statement under section 342 Cr.P.C. he has denied all the questions and has pleaded innocence simpliciter. We have heard both the counsel for appellant and State.

4. At the outset, we have pondered as to whether the ingredients of section 337-J P.P.C. are constituted in the circumstances of the present case. This section reads as under: "337-J. Causing hurt by means of a poison: whoever administers to, or causes to be taken by any person, any poison or any stupefying, intoxicating or unwholesome drug or such other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence, or knowing it to be likely that he will thereby cause hurt may, in addition to the punishment of Arsh or Daman provided for the kind of hurt caused, be punished having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years. " First and foremost ingredient of this section is administering (i) Poison or (ii) stupefying drug or (iii) Intoxicating drug or (iv) unwholesome drug or (v) such other thing with intent to cause hurt. Hurt has been defined in section 332 P.P.C. as under; "Hurt

(1) Whoever causes pain, harm, disease, infirmity or injury to any person or impairs, disables or dismembers any organ of the body or part thereof any person without causing his death, is said to cause hurt. (2) The following are the kinds of hurt:- (a) Itlaf-i-udw; (b) Itlaf-i-Salahiyyat-i-udw; (c) Shajjah; (d) Jurh; and (e) All kinds of other hurts. Now according to Dr. Muhammad Ibraheem (P.W.10) the three victims namely Ghulam Fareed, Bilawal and Khurshid had received certain type of tranquilizer. Blood of all the three persons was sent for chemical analysis alongwith fifteen yellow coloured tablets recovered from appellant. The result reported by chemical examiner is that it was Lorazepam vide Exh. Pk and PL. The question arises as to which type of hurt can be determined so far as the administration of tranquilizer like Lorazepam is concerned. Out of five types of hurt mentioned in section 332(2) P.P.C. (a) to (d) are ruled out. So far as (e) is concerned, it has been defined in section 337-L P.P.C. as under: "Punishment for other hurt:(1) Whoever causes hurt, not mentioned hereinbefore, which endangers life or which causes the sufferer to remain in severe bodily pain for twenty days or more or renders him unable to follow his ordinary pursuits for twenty days or more, shall be liable to Daman and also be punished with imprisonment of either description for a term which may extend to seven years. (2) Whoever causes hurt not covered by subsection (1) shall be punished with imprisonment of either description for a term which may extend to two years. or with Daman, or with both. In the present case subsection (1) is ruled out as neither the life of the victims was endangered nor they suffered a severe bodily pain for twenty days or more to have rendered them unable to follow their ordinary pursuits. It is also clear that a tranquilizer is neither a poison nor a stupefying or intoxicating or unwholesome drug. There is one another factor as well which is creating doubt as to whether semi-consciousness in victims was generated by the administered tranquilizer or by some other circumstances. Ghulam Fareed (P.W.7), the complainant has deposed that prior to drinking juice offered to them by the appellant, they had also eaten melons. At Sibi Railway Station he had taken his full food as well and even before that they were eating many things. In complaint Exh. P/D a reference is also made to taking dry grapes and channas. It was a day time of the hot month of May in the hottest part of Pakistan namely Sibbi to Jacobabad. In these circumstances after having eaten melon and many other things and then immediately afterwards taking juice usually generates drowsyness and even Semi-Consciousness. We fail to understand that a tranquiliser could have made all the three victims to become unconscious. Consequently we hold that in the circumstances of the present case, section 337-J P.P.C. is not constituted. Resultantly we acquit the appellant from the conviction and sentence under section 337-J P.P.C.

4. Now remains the question of conviction and sentence under section 22 (b) of the said Ordinance. It is proved by prosecution beyond reasonable doubt that the appellant had stolen Rs.130 from the pocket of complainant Ghulam Fareed. Consequently the offence falls within the ambit of section 379 P.P.C. read with section 14 of the said Ordinance. Therefore, the conviction of the appellant is converted to section 379 P.P.C. and he is sentenced tote imprisonment already undergone. Appeal is dismissed in such terms. H.B.T./1194/F Order accordingly.