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Criminal Appeal No. 21 of 1972, decided on 16th December 1972.

---S. 307-Attempted murder ---Sudden fight-Grave and sudden provocation-Refusal by wife to g; back to accused husband's house on ground of ill-treatment-Accuse going to in-laws' house hiding knife having 4 'blade in waist ant causing injuries to almost every one present at spot-Carrying knife of 4f blade hidden ire waist, held, showed an element of premeditation and preparation to use knife in case of refusal of in-laws to send wife and completely negated defence of provocation, or sudden.

----S. 307-Sentence, quantum of Prosecution witness receiving injury on vital part with a sharp-edge knife carried secretly by accused-Accused having already received years remission by Government-Sentence of S years' R. I., held justified in circumstance, of case, calling for no further remission- Accused, however, having no property within jurisdiction of Court- Fine of Rs. 1,000 reduced to Rs. 50.

Mark Mohammad Hayat for Appellant.

Raja Muhammad Khurshid Khan, A.-G. for the State,

Date of hearing: 14th November 1972,

The appellant Mohammad Munir son of Hassan Ali caste khokhar, resident of village Khanpur, Tehsil Gujrat, has been convicted by Sub-Judge; Magistrate Ist Class, with enhanced powers, Bhimber, for offences under sections 307 and 324, P. P. C., by his order dated 19-9-1972 and sentenced to 5 years' R.I. and fine of Rs. 1,000 under section 307, in default of payment of fine the period of sentence is to be six months more. He was further sentenced to 6 months' R. I. for an offence under section 324, P. P. C. However, both the sentences were to run concurrently. Half of the fine, on realization, was, to be given to Mst. Naseem Akhtar one of the victims.

The facts of the case are quite simple. Mst. Naseem Akhtar P. W. and Mst. Nazeer Begum P. W. are daughters of Adalat Khan complainant resident of village Jakkhar Mandi. They were married to Mohammad Munir accused-appellant and his brother Mohammad Azam. It is alleged that Naseem Akhtar and Nazir Begum were habitually maltreated by their husbands. Consequ ently their brother Mohammad Sharif on visiting Khokhar Khanpur brought them back about a car before the occurrence.

On 23-2-1971 Mohammad Munir accused-appellant alongwith his mother visited the house of his in-laws in village Jakkhar Mandi for effecting reconciliation and to take along with them Mst. Nazir Begum his wife and Mst. Naseem Akhtar his sister-in-law to his house. The parents of Nazir Begum and Naseem Akhtar told them that they would agree to the return of their daughters to the house of their husbands only if the elders who negotiated the marriages would come and undertake responsibility for good treatment in future. Thereupon the mother of the accused went back to her house but the accused stayed on. On next day he pressed his demand persistently for sending his wife and his sister- in-law alongwith him but the parents of the girls refused to send them before the arrival of the elders on which the accused threaten ed to kill the girls if they insisted upon their stand any more. Even the ladies refused to accompany the accused on which the accused whipped out a knife from his waist and stabbed Mst. Naseem Akhtar in the belly causing incised wound 6' x 2' on the left flank of the abdomen. The wound was opening into the abdominal cavity cutting the small intestines at two places under neath. The intestines came out of the body. She dropped down. Then the assaulted Mst. Nazeer Begum with the knife in his hand, who warded off the attack by using her left hand as a shield. She received an injury on the little finger near root on palmer. Ghulam Fatima P. W., Adalat Khan P. W. acid Mohammad Sharif P. W. also received various incised woulds on their persons in their effort to overpower the accused. On hue and cry Shera P. W., Niaz Ali and Rehmat Chowkidar reached on the spot who overpowered the accused.

The occurrence took place at about 12 noon. F. I. R. was lodged at the Police Station Barnalla at 12-30 p. m. The accused was handed over to the Police when they arrived -at the spot. The accused pleaded not guilty. He admitted his presence on the spot at the time of the fight but suggested that the injuries on the person of Mst. Nasim Akhtar and others were caused by either Mohammad Sharif P. W. or Adalat Khan when they started fighting- among themselves. This defence is ridiculous. No evidence in support of it has been produced and deserves to be rejected.

The fact that the stab wound on the person of Mst. Naseem Akhtar was inflicted by Mohammad Munir accused with the knife is clear from the evidence of Adxlat Khan, Naseem Akhtar, Nazir Begum, Fatima, Niaz Ali, Shera, Rehmat Khan and Sharif. Adalat Khan, Nazir Begum, Fatima and Shera P. Ws. also received injuries in rescuing effort. It was argued by the learned Advocate for the appellant that these witnesses are interested, therefore, they should not be relied upon. No doubt, these witnesses are related to the complainant but he mere fact that the witnesses are relatives and interested is no ground to disbelieve them because in the present case the point can be established by their testimony alone. Most of them have received incised wounds on their persons during the scuffle. There was not a single injury on the person of the accused.

The evidence of these witnesses also finds corroboration from the statements of Dr.. Ansar Atta and Dr. Ijaz-ur-Rahman who examined them and found injuries on their persons. Doctor Ansar Atta examined Mohammad Sharif, Ghulam Fatima and Mst. Nazir Begum and found injuries as follows on their respec tive persons:

(1) Mohammad Sharif son of Adalat Khan:

(i) An incised wound J' x 1/6" x 1/6' near root of left index finger obliquely. The injury was simple and caused by sharp. edged weapon. The medical certificate Exh. P. B/1 is in my handwriting and signed by me.

(2) Ghulam Fatima wife of Adalat Khan:

(i) An incised wound J" x 1/12' x 1/12' on palmer aspect of right index finger.

(ii) Incised wound 2' x 1 16 x 1/16' on palmer aspect of right hand near root of finger.

(iii) Incised wound J' x 1/10' x 1/16' on palmer aspect of left finger.

(iv) Incised wound I' x 1 1/12' on palmer aspect of left

little finger.

The injuries were simple in nature and caused by sharp-edged weapon. The medical certificate Exh. P. B./2 is in my hand writing and signed by me.

(3) Mst. Nazir Begum wife of Mohammad Munir:

(i) Incised wound 1' x 1/6' x 1 /8' near root on palmer aspect of left little finger.

The nature of injury was simple and caused by sharp-edged weapon. The medical certificate Exh. P. A./3 is i my hand writing and signed by me.

Doctor Ijaz-ur-Rahman examined Mst. Naseem Akhtar and found the following injuires on her person:

(1) One incised wound 6' x 2' on the left Rank of the abdomen. The wound was opening into the abdominal cavity and most of the intestines were out of the wound along with the omentum. On operation it was found that the small intestine was cut through at two places underneath of the external wound.

The injury on the person of Ms Nazir Begum was, accord ing to him, grievous in nature and could have resulted in death. She was admitted in hospital on 24-2-71 and was discharged on 13-3-1971. The presence of these eye-witnesses at the site of occurrence is not denied by the accused-appellant. It has not been suggested even by way of cross-examination that there was any other person present whom the prosecution has failed to tender as witness. I am, therefore, convinced that the injuries inflicted on the person of Mst. Naseem Akhtar, Mst. Nazir Begum and other prosecution witnesses were caused by Mohammad Munir accused.

It was then argued by the learned Advocate for the appellant that the offence would fall under the provisions of section 326 and not 307 but again I do not agree with him. The weapon used is knife, the part of the body aimed at is the belly and the wound was 6' long and 2' wide. The knife had entered into the abdominal cavity. Most of the intestines were out of the wound. It was found that small intestines were cut through at two places. The inference from these circumstances is that he intended to cause such bodily injury as was likely to cause death even though he did not intend to cause death-he would have been guilty of murder, if death had taken place. Since the victim has survived, the offence would fall under section 307, P. P. C.

The next question would be the quantum of sentence. In this behalf arguments as regard to provocation cannot be said to possess much force when accused him self did not say that at the time he was examined by the trial Court. His stand at that time was that these injuries were caused either by Adalat Khan or Mohammad Sharif in the course of their mutual scuffle. Moreover, refusal by wife to go back to the house of her husband, when it is alleged that she had been maltreated, would not provide the husband an excuse to stab his sister-in-law and use the knife so recklessly as to cause injuries almost to each one present at the spot. Besides carrying a knife having 4 ' blade hidden in the waist shows an element of premeditation as well as preparation, that is to use the knife in case the parents of the girls refuse to send them with him. This fact completely negates the defence of provocation or sudden fight.

Keeping in view the pertinent circumstances, the nature of the injury, the part of the body on which it was inflicted, the weapon that was used and the manner in which the weapon was secretly carried the sentence of five years' R. L, in my opinion, is justified and proportionate to the gravity of the crime but the sentence of Rs. 1,000 as fine alongwith the sentence of five years' R. I. seems to have been imposed without taking into consideration the paying capacity of the convict who, as reported by the police, does not possess any property within the jurisdiction of this Court. Hence the sentence of fine should be reduced substantially; that is to Rs. 50 and rigorous imprisonment in default of payment o fine to one month's R. 1. The appeal is accepted to that extent only.

-The sentence awarded by the learned Magistrate was rather severe in the special circumstances of this case and I had a mind to reduce it but on information sought from the Jail Authorities, it has come to my knowledge that the appellant has already received two years' remission under Govt. Order H & P/A-43(10)/5338-5400. Under these circumstances no further remission is called for. I have also noted that my learned brother has very rightly substantially reduced the sentence of fine. I, therefore, concur with the judgment proposed for reason stated in this order.

Order accordingly.

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