MUHAMMAD RAFIQ vs The STATE

1. HAMODDUR RAHMAN, C. J.-The petitioner in this case, who is a young boy of 16/17 years, was convicted by the Additional Sessions Judge, Lahore, under section 304, Part II of the Pakistan Penal Code and sentenced to seven years' rigorous imprisonment as also a fine of Rs. 1,000 or in default further R. I. For one and a half years. On appeal, the High Court altered the conviction to section 325 of the Pakistan Penal Code and reduced the sentence from seven years to four years' R. I. But maintained the sentence of fine.

2. The petitioner now seeks special leave to appeal and contends firstly that the offence fell under section 323 of the Pakistan Penal Code and not under section 325 of the Pakistan Penal Code as held by the High Court.

3. The case against the petitioner was that sitting on the legs of the deceased, who was then lying prone on the ground, he was giving blows to the deceased on the left side of the chest with a brick and the latter was screaming with pain all the time. The medical examination revealed that the deceased had seven bruises on the left side of his chest antero-lateral aspect at middle and lower part. The bruises were 6" x 4' in size and underneath the tenth rib on the left side was fractured and the spleen was ruptured. There was also a tear in the spleen 2" in length. The spleen was, however, found to be enlarged measuring 5-- " x 2-- " x 2--" and weighing 10 ounces. The doctor opined that from the size and weight of the spleen, it appeared to be diseased, as a healthy spleen, according to him, should be only 3" x 2" x 1" in size and should not weigh more than 2 -- ounces. He was, however, firmly of the view that even such a spleen could not be ruptured by "slight violence or slight fall". In order to produce the type of injury found the blow has to be given with some force.

4. The deceased was in his senses when he was taken to the hospital. He was examined there at 1-00 p.m. And since his condition was getting precarious the doctor allowed the Head Constable present there to record his statement. This was done at about 1-15 p.m. And the deceased expired at 1-25 p.m.

5. The dying declaration, which is a brief one, only states that "Muhammad Rafiq hit me on my belly with a brick due to which I am feeling pain in my belly." A piece of brick (Exh. P. 3) was also seized by the police and produced in Court.

6. Learned counsel has, on the basis of the above statement in the dying declaration, argued that the offence committed by the petitioner was at worst an offence under section 323 of the Pakistan Penal Code only, for, the petitioner neither knew that the victim had a diseased and enlarged spleen nor had used any formidable weapon. The so-called "brick" was only a "stone".

7. We are unable to accept this contention, for, apart from the injury to the spleen the medical evidence shows that blows were struck with such force on the chest that the tenth rib was fractured and as a result of this injury, which has been described by the doctor as being sufficient in the ordinary course of nature to cause death, the victim actually died. The injury was, there-- fore, clearly a grievous injury and the conviction under section 325 of the Pakistan Penal Code was fully justified.

8. Learned counsel next contends that the sentence is unduly excessive having regard to the fact that the petitioner is only a young lad of 16/17 years. Tie petitioner has been given a sentence of only four years' R. I., although the maximum sentence provided under section 325 of the Pakistan Penal Coda is seven years It cannot, therefore, be said that the sentence is either illegal or excessive. In any event, this Court does not, as a rule, interfere with a legal sentence.

9. This petition is, accordingly, dismissed.