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Criminal Reference No. 1 of 1983, decided on 8th August, 1984.

‑‑‑Ss. 307 & 326‑‑Question whether an injury was a simple injury or a grievous injury a question of fact to be proved by prosecution ‑‑Factum that accused had caused injury 'standing proved on basis of ocular evidence but it was not proved that whether such injury was simple or grievous for want of medical evidence‑‑Held, it was not grievous injury as to warrant application of section 307 or section 326, P. P. C.

---S.341‑‑Penal Code (XLV of 1860), Ss. 307 & 326‑‑Referene to High Court‑‑Accused charged with simple injury‑Accused a deaf and dumb person having sufficient intelligence to understand what was going on against him before trial Court‑‑Case under 5.307, P.P.C. not made out against accused‑‑Conviction altered from 5.307 to one under 5.324, P.P.C.

Muhammad Ibrahim Memon, Addl. A .‑G . for the State.

Respondent in person.

Date of hearing: 8th August, 1984.

This is a reference made by the Assistant Sessions Judge, Naushero Feroze, under section 341, Cr.P.C. for passing sentence against the respondent by this Court under the above section on the ground that the respondent though not insane but was deaf and dumb.

On receipt of the above reference, the respondent was referred to medical examination in pursuance of an order dated 18‑4‑1984 passed by this Court. The respondent was examined by Dr. Zaheer Ahmad Khan who submitted his report dated 26‑4‑1984, certifying that the respondent was not suffering from any mental ailment.

2. The prosecution case was that the respondent had caused an injury to one Muhammad Murad on his stomach. The respondent was charged under section 307, P.P.C. The ocular evidence brought on record supports the prosecution case that factually the respondent had caused the above injury to the above person. However, no medical certificate was produced, nor any doctor was examined by the prosecution. The learned Assistant Sessions Judge has presumed that the injury was grievous on the basis of the factum that the injured remained in the hospital for 40 days. In my view, such a finding is based on surmises and conjectures. The question whether an injury is a simple injury or a grievous injury is a question of fact which is to be squarely proved by the prosecution in order to press into service a particular provision of the Pakistan Penal Code. Since the factum that the respondent had caused the injury stands proved on the basis of the ocular evidence on record but the factum whether it was simple or grievous has not been proved for want of medical evidence. Taking liberal view in the matter, I would presume that it was a simple injury and not a grievous injury as to warrant the application of section) 307, P.P.C. or section 326, P.P.C.

3. Mr. Muhammad Ibrahim Memon learned Additional Advocate‑General has fairly invited my attention to the caste of Alam Khan v. The State P L D 1964 S C 801 in which the honourable Supreme Court of Pakistan while dealing with the question of passing of sentence under section 341, Cr.P.C. against a deaf and dumb person has observed that the High Court should first satisfy itself if there had been a fair trial and that the accused had sufficient intelligence to understand the criminal character of his act. On 8‑6‑1984 I had asked the accused in the Court by showing knife, whether he had given knife injury, he had denied by showing sign of denial and also conveyed through signs that he had small children. I am, therefore, of the view that the respondent had sufficient intelligence to understand what was going on against him before the trial Court. However, I am not inclined to agree with the learned Assistant Sessions Judge that a case of section 307, P.P.C. was made out for the aforesaid reason. I would, therefore, substitute the conviction under section 324, P. P. C. in place of section 307, P. P. C. and award the sentence for the period during which the respondent has remained in jail as under‑trial prisoner, namely the respondent was arrested on 3‑10‑1974 and was released on bail on 25‑2‑1975.

4. The reference stands disposed of in the above terms.

M. Y. H. Reference disposed.

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