2008 PLP 1744 (YLR)

KAZIM ALI MALIK, J.

Allah Wasaya, complainant, who has not been made a party to this revision petition, got registered a case F.I.R. No.34 of 1994, dated 4-3-1994 under section 334 read with section 34, P.P.C. at Police Station, Roheelanwali, District Muzaffargarh against the petitioners and two others with an allegation that they had chopped off his nose on 3-3-1994. Dissatisfied with the result of investigation the complainant filed a private complaint with an allegation in line with the F.I.R. against the petitioners and their co-accused. The learned trial Court concluded trial in the private complaint case and convicted and sentenced the petitioners under section 334 read with section 34, P.P.C. On an appeal by the petitioners, the First Appellate Court set aside the conviction and sentence and remanded the case to trial Court for de novo trial on the sole ground that the charge had not been framed correctly in line with the prosecution case. The convicts have filed this revision petition under sections 435, 439, Cr.P.C. against the order of trial Court and that of the First Appellate Court and have sought their acquittal.

2. The learned counsel for petitioners placed reliance on the cases Karam Ali Shah v. Mazhar Hussain and 3 others 1992 SCMR 2328, Nurman Shah v. The State PLD 1967 Pesh. 191, Ghulam Hussain v. The State 1990 PCr.LJ 577, Haji Muhammad Jee and others v. Muhammad Ibraheem Shauq and others 1988 SCMR 1691, Zubtey Khan v. The State PLD 1972 Lah. 196, Feroze Khan v. Captain Ghulam Nabi Khan and another PLD 1966 Supreme Court 424 and Mir Zaman v. Khalilur Rehman and 2 others 1980 SCMR 1160 and contended that the First Appellate Court should have acquitted the petitioners as they had suffered the agony of trial of years.

3. To a question, the learned counsel for petitioners stated that the trial Court framed defective charge against the record. The petitioners also criticized the charge-sheet before the First Appellate Court with the plea that it had not been framed in line with the prosecution case. In this view of the matter it does not lie in their mouth to say before this Court that the First Appellate Court should not have remanded the case for de novo trial. In fact the defective charge-sheets, which prejudiced the defence of the petitioners and adversely affected their case and cause as per their own contention, forced the learned First Appellate Court to remand the case for de novo trial.

4. The Trial Magistrate convicted the petitioners under section 334 read with section 34, P.P.C. and sentenced them to rigorous imprisonment for four years' R.I. each and with a direction to pay Rs.3,00,000 as Arsh to the injured in three equal yearly instalments. The Trial Magistrate prepared four charge-sheets against the petitioners and their co-accused, out of which one does not bear his signature, while another charge-sheet, dated 11-6-2003 bears the name of one Shabbir, who was/ is not an accused. The alleged occurrence took place on 3-3-1984 whereas the Trial Magistrate gave the date as 4-3-1994 in one of the charge-sheets without mentioning the time of occurrence. It appears that some official of the Court drew up the above said charge-sheets in a slipshod manner. Had the Trial Magistrate(s) regulated and controlled the trial proceedings the charge-sheet in the above said form would not have confronted the First Appellate Court and this Court.

5. I am not in agreement with the learned counsel for petitioners that the protracted and delayed trial caused agony to the petitioners. As a matter of fact the victim whose nose was allegedly chopped off had been wronged without any fault on his part. The injured was not in a position to control the proceedings of trial Court. He did not contribute towards framing of defective charge-sheets. In the given circumstances acquittal of the petitioners on the ground of delay in conclusion of trial would amount to punishment of the injured for the act of trial Court.

6. The learned Trial Magistrate decided the private complaint case and the State case by means of consolidated judgment in utter disregard of the case law laid down by Apex Court in Noor Elahi's case PLD 1966 SC

608. A perusal of the record would show that Allah Wasaya, injured P.W., was medically examined on 4-3-1994 and the doctor found that his nose had been chopped off. The offence of "Itlaaf-i-Uzw" is punishable with "Qisaas" in consultation with the authorized Medical Officer and if Qisaas is not executable in view of the principles of equality in accordance with injunctions of Islam, the offender shall be liable to pay Arsh and may also be punished with imprisonment of either description, which may extend to ten years as Ta'zir. The case was tried by a learned Judicial Magistrate Ist Class with enhanced powers under section 30, Cr.P.C., which authorized him to pass sentence of imprisonment up to seven years. Keeping in view the nature of injury the learned Trial Magistrate was required to send the case file to the Court of Session in terms of section 347, Cr.P.C. as he had no jurisdiction to impose adequate sentence in case of conviction under section 334, P.P.C. The Magistrate failed to exercise jurisdiction judiciously vested with him. In the case in hand the learned trial Magistrate and the learned First Appellate Court have already pronounced judgments and therefore, the question of adequate sentence in case of conviction requires consideration of this Court under section 561-A, Cr.P.C. The mere fact that the occurrence took place some years back would not stark: in the way of this Court while exercising inherent powers in the light of gravity and nature of the offence. The Medical Examiner certified that the nose of complainant had been chopped off with a sharp edged weapon, which was found missing at the time of medical examination. The Trial Magistrate conducted trial in a slipshod manner. I have already observed that he framed defective charge-sheets and that too against the record and prosecution case. Keeping in view all the facts and circumstances together I dismiss this revision petition while maintaining the remand order passed by the learned First Appellate Court, however, with the only modification that the record of the case be sent to the Court of Session, Muzaffargarh for its de novo trial on day to day basis. H.B.T./M-85/L Petition dismissed.