SOHRAB Versus THE STATE

Sohrab son of Jalat and Hakim Khan, son of Kashmirai, residents of village Lahore, Tehsil Swabi, stood their trial under section 326/34, P. P. C. They were convicted under the above sections and sentenced each to three years' R. I and a fine of Rs. 500 each or in default six months R. I. Their appeal was dismissed. They have come in revision.

2. The prosecution case at the trial as disclosed by Sarandaz (P. W. 4) was that at the material time, after getting himself shaved in the shop of Malang barber (not produced) he was coming back towards his dera in the Bazaar, that in the Bazar he was waylaid by the two petitioners of whom Hakim Khan held him and retorted if he (the witness) would again assist the Police, that Sohrab petitioner gave him blows which landed on his buttock, chest and palm and that Hakim Khan was also having a knife. Besides the complainant, the prosecution examined Biland Iqbal and Jabbar P. Ws. who have supported the complainant in material particulars.

3. Doctor Akhtar Ali Shah, Medical Officer, Incharge, Rural Health Centre, Khunda examined Sarandaz Khan on 25-10-74 at 7-45 p.m. and found the following:--

(1) One stab wound " x ' on the abdomen just below the umbilicus 1 ' deep.

(2) One incised wound 1/3 ' x ' on the right buttock.

(3) One abrasion on the palm of right band ' x 1/10 '.

Duration within 4 hours. According to the doctor's opinion, the weapon used was sharp and injury No. 1 was grievous and the remaining were Simple. Patient remained in the hospital from 25-10-74 to 7-11-74.

4. On the above evidence the learned trial Magistrate found the accused persons guilty under section 326/34 and sentenced them accordingly. Two questions relating to legal aspect of the case were raised as follows:-

"It was submitted by the learned counsel for the petitioner that on the day when the patient was examined, no opinion could be formed by the doctor with regard to the nature of the injury sustained by complainant; that it was on 7-11-74, when the patient was discharged from the hospital as cured: the doctor held the injury as grievous. It was argued that the learned trial Magis trate formed no opinion of his own and in a mechanical manner followed the doctor's opinion, thereby disregarding the previsions of section 320, P. P. C. In section 320, grievous hurt is:-

Eighthly: Any hurt which endanger's life . . . . .

The argument is that the doctor has not given any reason for describing the injury as grievous and that the medical report does not disclose that any vital part was injured as a result of the stab wound. In support the case of Sadiq Masih v. Ghulam Mohayuddin and another (1971 P Cr. L J 1075) was quoted. It reads:---

"Before concluding this order it needs to be mentioned and emphasised that it is not the job of the doctor, to decide the question whether or not a hurt is grievous. The doctor has to give his observation and also his opinion with regard to the circumstances directly connected with the injury and his observation. It is not his responsibility, particularly when there is some confusion, to decide whether or not the injury observed by him fell within the definition of simple or grievous hurt."

The learned A. A.-G. frankly conceded before me that the injuries sustained by the complainant do not come within the purview of section 320, P. P. C.

5. It was further contended by the learned counsel for the petitioner that the implication of Hakim Khan under section 34, P. P. C. is not warranted in law, in that, he did nothing beyond retorting the complainant. From the evidence on record, I am satisfied that the motive of both the petitioners was common against the complainant, and their common intention to hurt Sarandaz is quite evident from their respective role in committing the offence. The active participation of Hakim Khan makes him equally responsible for the offence. The complainant bore three injuries out of which one injury could be easily attributed to Hakim Khan, bad it been the case of false implication.

6. On the view of the matter I take, while finding the petitioners are guilty of causing simple injuries to the complainant, their conviction under section 326, P. P. C. is set aside and is altered to one under section 324, P. P. C. and sentence them each to eighteen months' R. I. They are also sentenced to pay a fine of Rs. 200 each or in default should suffer additional R. I. for three months. The fine if realised, shall be paid to the complainant as compensation.

Appeal dismissed. Sentence altered.