P L D 1956 (W (PLP)

The story in regard to the motive is deposed to by Qasim Khan, Manzoor Elahi and Malik Dad (P. W. 4). Dr, Iqbal Ahmad (P. W. 10) examined Manzoor Elahi (P. W.) on 28th April 1955 at 2‑30 p. m. and found the following injuries on his person : (1) A penetrating incised wound 1" x 1/3 " almost vertical on the left posterior axillary line 3 " outer to left nipple. Air was coming out of it, with surgical emphysema. (2) An abrasion 1 " x on the middle part of the back or; the left arm. Injury No. 1 was dangerous to life and No. 2 was simple. Duration was within a few hours. Injury No. 1 had been caused by some sharp‑edged pointed weapon and No. 2 was the result of the use of a blunt weapon. Ex. P. H. is the carbon copy of the M. L. Report. The rest of the evidence is all formal. Mukhtar admitted, in the trial Court that he had a dispute with Malik Dad at the Flour Mill over a piece of string (sutli). He denied that he was beaten by Qasim or that Manzoor Elahi was also present there. He denied that he went to Dinna in the evening and assaulted Manzoor Elahi with the spear. He disowned the spear‑head Exh. P. 1 and attributed the case against him to enmity. Explaining the injury on his person, Mukhtar said in his statement that he got hurt while playing kabaddi. Gulzar (D. W. 1), Ayub (D. W. 2); Muhammad Khan (D. W. 3), Noor Hussain (D. W. 5) and Muhammad Afsar (D. W. 6) who were examined in defence said in their statements that Manzoor Elahi was injured by Aslam by means of a knife. The defence version of the affair was correctly disbelieved by the trial Magistrate. I was taken through the entire evidence with the help of the counsel for the complainant and I am satisfied that the conviction of Mukhtar is correct. He is aged 18 years. The sentence awarded to him is 'ridiculous. The Public Prosecutor supported the Revision Application. The proceedings are forwarded for revision on the following ground. (a) That the sentence awarded to Mukhtar is so grossly inadequate as to amount to a failure of justice. It is established on record that Mukhtar went armed with a spear in the evening to Dinna to avenge himself. He speared Manzoor Elahi on the left posterior axillary line, 3 " outer to left nipple. The recovery of the spear‑head from the spot is intrinsic evidence of the truth about the prosecution version. The doctor who examined Manzoor Elahi, described Injury No. 1 as dangerous to life. He found that air was coming out of it and there was surgical emphysema. The air could not have possibly come out unless the lung was injured. It is common knowledge that the Doctors do not generally probe injury to the lung to avoid further damage. The Magistrate below while inflicting a sentence of fine took into consideration the fact that Mukhtar is a student and of this there is no proof on record, counsel for Mukhtar produced before me today a certificate from the Head Master giving his date of birth. Fine alone is no punishment in this case for it must have been paid by the parents of Mukhtar. In cases under section 307 the offender who causes hurt to any person with the requisite intention or knowledge, is liable to punishment of transporta tion for life. The principal object of punishment is the prevention of crime. A sentence of fine in a case of this type has no deterrent effect. The question of sentence in such cases is certainly not free from difficulty, but at the same time it must be remembered that undue leniency far from having a deterrent effect which is the end and aim of all punishment, tends to result in offences of this nature being repeated or more videly committed. In determining the appropriate' sentence it is necessary to bear in mind the time, place and circumstances existing at or about the period when the crime was committed. Keeping all these considerations in view I have arrived at the conclusion that a substantial sentence of imprisonment is necessary in this case because Mukhtar went armed to the village of Manzoor Elahi and caused him an injury on a vital part. Accordingly, I forward the records of this case to the Honourable High Court for suitably enhancing the sentence awarded. SHABIR AHMAD, J.‑Of the four persons tried by him under section 207/34 of the P. P. C., Mr. Ikram‑ul‑Haq, a Magistrate of the First Class, with powers under section 30 of the Code of Criminal Procedure, at Rawalpindi while acquitting the other three convicted Mukhtar under section 307, P. P. C. and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 200 in default of payment of which he was to suffer rigorous imprisonment for two years. It is not clear whether Mukhtar questioned his conviction by an appeal to the Sessions Judge, Rawalpindi, as he could have, but a petition for revision was lodged by Manzoor Elahi, the man who was stated to have received injuries at the hands of Mukhtar in the Court of that learned judge with a view to having the case recommended to this Court for enhancement of the sentence imposed on Mukhtar. The learned Sessions Judge, Rawalpindi being of the view that the sentence imposed on Mukhtar was grossly inadequate, has recommended its suitable enhancement. Mr. Gulzar Muhammad Khan Advocate who appeared for the respondent, questioned the conviction and as in spite of the fact that the accused had not questioned his conviction by a petition to this Court, the conviction could be questioned under subsection (6) of section 439 of the Code of Criminal Procedure, he was given an opportunity to show that the conviction of the respondent was unsustainable. He contended that the evidence on the record disclosed that the res pondent had acted in the exercise of the right of private defence of his person when he was attacked by the opposite party and, therefore, had not been guilty of any offence. The position that his learned counsel took before me was in direct contrast to that taken by the respondent in the Court of the trial Magistrate, because when questioned under section 342 of the Code of Criminal Procedure to explain the evidence against him, the respondent had denied that he was present at the scene of the occurrence at the time when Manzoor Elahi received the injuries. The res pondent and the three acquitted accused, one of whom was his brother, one his father and the third their helper, produced six witnesses in defence, the gist of whose evidence was that Manzoor Elahi received his injuries at the hands of one Aslam and not at the hands of the respondent. The plea of private defence raised by the learned counsel for the respondent receives no support either from the defence evidence or from the circumstances emanating from the prosecution evidence and the other material on the record. It is true that an accused person may be held to have acted in the exercise of the right of private defence in spite of the fact that he did not take up that plea; but before the Court gives the accused the benefit of an exception which the accused does not claim to be applicable to his case, 4 there must be evidence to establish that the exception was applicable. I am not questioning the right of a counsel to take up on behalf of his client a plea which his client did not take up, but it is obvious that when that plea is put forward not by a person who by raising the plea admits his presence at the scene of the occurrence but by one who has been engaged by such a person the plea before it can be accepted, must receive support from cogent evidence. And in order that such a plea should succeed when it is taken up by a counsel who did not defend the accused at the stage of the trial but appears for him in a Court of appeal or revision, the evidence pointing to it must be of quite a strong character. In view of utter absence of any evidence to support the plea of exercise of the right of private defence put forward by him it appears to me that Mr. Gulzar Muhammad did not carefully consider the evidence before abandoning the case set up by his client and working on a theory entirely his own. But as admissions made by a counsel in a criminal case cannot bind his client because the Court has to be satisfied about the guilt of an accused person, I will after having rejected it, think no more of the plea raised by Mr. Gulzar Muhammad that his client was present at the spot at the time of the incident, and will proceed to consider the case as if the conviction were questioned on the grounds on which the accused himself had questioned it in the trial Court. To support their case, the prosecution produced a number of witnesses but the eye‑witnesses account was given by three of them including Manzoor Elahi. Manzoor Elahi who received quite a serious injury of which I will give the detail a little later, would not have substituted the respondent for Aslam if Aslam had really caused him the dangerous injury for which the offence was held by the trial Magistrate, to amount to an attempt at murder. The defence evidence was rightly rejected by the learned trial Magistrate and the prosecution evidence was rightly accepted by him. When examined by Dr. Iqbal Ahmad Mirza, Manzoor Elahi was found to have the following two injuries :‑ (1) A penetrating incised wound 1" x " almost vertical on the left posterior axillary line 3 " outer to the left nipple. (2) An abrasion, 1 " x " on the middle part of the back of the left arm. Air was coming out of the first injury and it was for that reason that the doctor declared it to be dangerous to life. The doctor also said that the injury was caused with a sharp pointed weapon and thereby supported the eye witnesses who had deposed that the respondent had caused an injury to Manzoor Elahi with a spear. In view of the evidence on the record I hold that the respondent was rightly held to be the author of the serious injury received by Manzoor Elahi which could easily have caused his death and that the offence amounted to one under section 307 of the P. P. C .I I will now consider the question whether or not the sentence should be enhanced. The only reason that the learned trial Magistrate gave for passing the sentence the leniency of which can hardly be doubted was that the respondent being a student should be treated leniently. I have also to bear in mind the fact that the sentence, the enhancement of which is sought was passed about nine months ago and that the petition for enhancement is presented not by the State but by the person who received the injury. But these are not the only considerations because I have also to keep in view the other circumstances, which are relevant when the question arises whether or not the sentence imposed by an inferior criminal Court should be enhanced by the High Court. Station in life of a person proved to have committed a crime is not the only thing to be kept in view while deter mining the appropriate sentence. The mere fact that the accused is a student is not sufficient ground to treat him with nothing but compassion and thereby pass on him a sentence, which is grossly inadequate. The law gives Courts discretion in the matter of sentence and the P. P. C. has provided maximum sentence for offences except in a few cases in which even a minimum sentence is also provided. Moreover, the Code of Criminal Procedure by its 562nd section gives certain Courts power to let off persons, found guilty of offences specified therein on their executing a bond to be of good behaviour and to keep the peace for a period not exceeding three pears with the condition that they may be called upon at any time within the period for which the bond is to remain in force to come and receive sentence and that very section authorises those Courts to let off persons found guilty of offences specified therein with an admonition. But before a lenient view is taken the Court must be satisfied that leniency is called for. An exceedingly light sentence may not be illegal but if it is inadequate the F High Court will not hesitate to enhance it, if it be of the view that enhancement is called for. One relevant matter to bear in mind while determining the question of sentence is the circumstances in which the offence was committed. If, for example an offence was committed in the heat of the moment and without any premeditation, a light sentence is indicated but a light sentence will generally be out of place if the offence be Committed with premeditation. Taking the present case one finds that after a minor quarrel with Manzoor Elahi and two others, the respondent threatening revenge, left for his village, half a mile away and returned after half an hour with a spar with which he caused Manzoor Elahi an injury which could have easily proved fatal but, just as luckily for the culprit as the victim did not. It is obvious that as the offence Was Hot committed in the heat of the moment the culprit did not deserve leniency on the score that the offence was not premeditated. Nor can it be overlooked that the culprit used the dangerous weapon he carried on a man who being unarmed did not have a chance to save himself. I will not attempt an examination of the opinion of certain philosophers that punishment for a crime is itself an evil, but it can hardly be doubted that if an evil it is a necessary one. Whatever it might have been in primitive society, the object of punishment in modern times is believed to be prevention of crime and it is the duty of Courts to see that that object is achieved. A person who has inflicted pain must be made to suffer to such an extent that the next time he feels like making' someone suffer the memory of the punishment imposed on him, for his previous misdeed should deter him from breaking the law. If the punishment imposed on the respondent be judged from this standard it can hardly be doubted to be so lenient as to have no salutary effect on him, because all the imprisonment he suffered was till the rising of the Court as the fine imposed on him must have been paid by his father. There is also another aspect of the matter which the Court should keep in view when passing sentence on a person proved to have committed a crime, and that is that the sentence should be such as to satisfy the feeling of revenge which cannot but be entertained by the victim or his relatives and friends against a person who has committed the crime. If the sentence is too light the victim or his relatives and friends will have a feeling that they have been unfairly dealt with, with the result that, in some cases at least, they will attempt to inflict on the culprit punishment which they feel he deserved but was not awarded by the Court. From whatever aspect the sentence imposed by the learned Magistrate he looked at, it proves to be grossly inadequate. I would, therefore, enhance the sentence of imprisonment to nine months' rigorous imprisonment, but will allow the sentence of fine and imprisonment in default of payment thereof to stand. The sentence I am passing is not severe enough, but as the order of the learned trial Magistrate was passed about nine months ago and the respondent who is studying in the tenth class will loose a year of education in addition to suffering imprisonment I do not feel inclined to pass a severe sentence. The respondent will be taken into custody to undergo the imprisonment imposed him. A. H. Sentence enhanced.