Kousar Abbas alias Piya vs The State, etc

ANWAARUL HAQ PANNUN, J. Kousar Abbas alias Piya, the petitioner was sent up to face trial in a criminal case registered vide F.I.R No.508 dated 20.12.2011, under Sections 324/337-C/337-F(ii) PPC, at Police Station Naushehra Jadeed, Ahmadpur East, District Bahawalpur, on a complaint in writing (Exh:PA) made by Qanbar Hussain, (PW-1) with the allegation that on 20.12.2011, in the evening, Mst.

Tahira Bibi alias Guddi, his daughter had gone to house of her maternal uncle Madah Hussain. Due to absence of any of the inmates in their house, while she was on her way back to home, the petitioner gave churri blows hitting on her belly and neck, resultantly she fell down and upon her hue and cry, the complainant, his brother Abuzar and Madah Hussain attracted at the spot and witnessed the occurrence. They made an attempt to apprehend the petitioner, he however, succeeded to flee away while brandishing the Chhuri in his hand. Motive behind the occurrence was dispute of her Rishta. After usual investigation, the accused was sent up to court, while taking cognizance, the learned trial Judge charge sheeted the accused, to which he pleaded not guilty and claimed trial. The prosecution had examined as many as 06-witnesses to prove the charge.

The ocular account has been furnished by Qanbar Hussain, the complainant (PW-1), Abuzar Hussain (PW-2) and Mst. Tahira Bibi (PW-3); Muhammad Iqbal SI (PW-4) conducted investigation in case; Dr. Mehvish Pervaiz (PW-5) furnished medical evidence and Khawaja Muhammad Asif ASI (PW-6) is the recovery witness of the weapon of offence i.e. chhuri, allegedly recovered on pointing out of the petitioner in presence of PWs. After closure of prosecution's evidence, when examined under Section 342 Cr.P.C, the accused/petitioner, refuted all the allegations levelled against him and professed his innocence. The accused/petitioner first opted to examine himself under Section 340(2) of Cr.P.C, but later-on did not examine him. However, in his defence evidence, he produced Manzoor Hussain as DW-1 and Samar Abbas as DW-2 besides tendering documents i.e. certified copies of suit for restitution of conjugal rights Exh:DA and written statement Exh:DB. On conclusion of the trial, learned trial Judge convicted and sentenced the petitioner through the impugned judgment dated 21.12.2018 as under:- (Under Section 324 PPC)

05-years R.I along with fine of Rs.30,000/- payable to the injured Mst. Tahira Bibi and in default of payment of fine to further undergo one month S.I.

(Under Section 337-D PPC)

To pay Arsh, 1/3rd of diyat i.e. Rs.10,51,847/-.

(Under Section 337-F(ii) PPC)

To pay Daman Rs.20,000/-.

The Arsh and Daman amounts were ordered to be paid in lumpsum, recoverable as arrears of land revenue with the further direction that the convict shall remain in simple imprisonment till the payment of said daman amount. The convict has, however, been given the benefit of Section 382- B of Cr.P.C.

The petitioner being aggrieved, filed an appeal against his convictions and sentences whereas the complainant filed criminal revision petition, seeking enhancement of sentence of the petitioner.

The learned Addl. Sessions Judge, Ahmadpur East, dismissed both the appeal and the criminal revision petition through the impugned consolidated judgment dated 27.05.2019. Hence, this criminal revision petition.

2. Arguments heard and record perused.

3. The ocular account as stated above has been furnished by Qanbar Hussain, the complainant (PW-1), Abuzar Hussain (PW-2) and Mst. Tahira Bibi, the injured (PW-3). They all despite lengthy cross-examination, remained un-waivered and their evidence had fully been corroborated by the medical evidence. Dr. Mehvish Pervaiz (PW-5) examined the injured Mst. Tahira Bibi, vide MLC (Exh:PF). She noted two injuries on the body of the injured i.e. injury No.1:- An incised wound of 8 x 1 cm x platysma muscle cut on left side of neck, declared as Ghair Jaifa Badiah Punishable under Section 337-F(ii) PPC. The injury No.2 "A stab wound of 2 x 2 x deep going left side of abdomen in left hypochondrium", declared as Jurh Jaifah, as defined under section 337-C PPC and punishable under Section 337-D PPC". The blood was oozing from the wound at the time of examination of the injured. Later-on Dr. Mehvish Pervaiz, PW-5 had formed her opinion on the basis of report of Dr. Umer Baloch M.O Surgical Unit-II, BVH, Bahawalpur which is to the effect that "exploratory laparotomy was done 300 ml fluid containing gut content was present, 2. perforation in the body of stomach which were primarily closed. Abdomen washed drain placed closed in layers. So, in the light of report of M.O Surgical Unit No.II, injury No.2 was declared as Jurh Jaifah. It may be observed that in the Merriam-Webster Medical Dictionary, the hypochondrium is defined as "Either hypochondriac region of the body, located beneath the lower ribs and above the abdomen." whereas in Dorland's Medical Dictionary, "One of the two regions of the abdomen that lie on either side of the epigastrium and below the ribs." Generally the term hypochondrium has the following dictionary meanings: (1) Anatomical Context: Either of the two regions of the upper abdomen situated on each side of the epigastrium and beneath the lower ribs. (2) Etym ological Context: Derived from the Greek words "hypo-" (under) and "chondros" [cartilage, referring to the cartilage of the ribs]. The hypochondrium refers to an anatomical region of the human abdomen, located on either side of the upper abdomen, beneath the ribcage. It is divided into two parts i.e. the right hypochondrium which contains the liver [especially the right lobe], gallbladder, and part of the kidney and the left hypochondrium, contains the stomach, spleen, tail of the pancreas, part of the kidney, and parts of the colon respectively. The body cavity, on the other hand has been defined in the Oxford English Dictionary as "A hollow space within the body that contains organs or other structures, such as the thoracic cavity or abdominal cavity." In Merriam-Webster Medical Dictionary:- "A cavity in an animal body, specifically the coelom, which is the main body cavity housing organs." And in Cambridge Dictionary:- "An opening into the human body, such as the mouth, anus, or similar spaces that house internal structures." Thus, the body cavity means a part of the body under which vital organs are located. An injury penetrating into the body cavity wherein the vital organs are located is treated as Jaifah. Further collateral damage or injury to the internal organs referred hereinabove inside the abdomen is sufficient to bring the case within the purview of Jaifah. The argument of learned counsel for the petitioner that since neither Dr. Omer Baloch, M.O Surgical Unit-II, BVH Bahawalpur, who as per prosecution, operated upon the injured Mst. Tahira Bibi himself appeared in the witness box nor the original Surgical Notes had been brought on record, rather the photocopy thereof had illegally been got exhibited as Exh:PH, which is inadmissible in evidence, thus no reliance could have been placed thereon and the conviction and sentence under Section 337-D PPC awarded to the petitioner, is liable to be set aside, is repelled for the simple reason that in view of statement of Dr. Mehvish Pervaiz, PW-5 and her observation, injury No.2 i.e. "a stab wound 2 x 2 x deep going left side of abdomen in left hypochondrium", clearly falls within the definition of Jaifah. The non-examination of Dr. Omer Balouch as PW as well as non- production of the original Surgical Notes in evidence, therefore, have no adverse bearing upon the prosecution's case, and the learned counsel for the petitioner can yield no fruit and draw any benefit on the strength of his argument that photocopy of the Surgical Notes has illegally been placed on record as Exh:PH. The reliance of the learned counsel for the petitioner on the case reported as "Pervaiz Khan versus The State"(PLD 1998 Lahore 84), being inapt in the facts and circumstances of instant case, does not advance the cause of the petitioner rather it affirms view of this court as discussed above. With due reverence to his Lordship Mr. Zafar Pasha Chaudhary, J, the relevant portion is reproduced hereunder:- "Body cavity does not denote only an area starting from upper part of the shoulder up to diaphragm and then from diaphragm to lower part of pelvis but it means a part of the body under which vital organs are located and if any injury penetrates into the body cavity and then enters that part of the body wherein vital organs are located, only then that can be treated as Jaifah and punishment can be awarded accordingly."

4. For what has been discussed above, both the learned Courts below have passed the impugned judgments while assigning cogent and valid reasons calling for no interference by this Court. In revisional jurisdiction under Section 439 Cr.P.C, this Court has to satisfy itself about the correctness, legality or propriety of any order/ judgment passed by a lower court and unless the impugned order/ judgment is found to be unreasonable causing miscarriage of justice or glaring irregularity materially affecting the proceedings or patent illegality vitiating the impugned decision, the same cannot be interfered with. No case for interference by this Court in the revisional jurisdiction is made out. Accordingly, this revision petition is dismissed.