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Criminal Miscellaneous No. 887/M of 1984, decided on 6th‑April, 1985.

-‑‑S. 561‑‑Penal Code (XLV of 1860), Ss. 307, 326, 325 & 323‑‑Appellate Court dismissing appeal against conviction filed by accused and accepting revision petition for enhancement of sentence filed by complainant‑‑ Accused invoking inherent jurisdiction of High Court‑‑Conviction not challenged but only order of enhancement of sentence challenged at time of arguments‑‑Sentence, having been enhanced without taking into consideration important factor that action of accused was outcome of filthy abuses hurled by injured prosecution witness was reduced to that previously awarded by trial Court, in circumstances.

‑‑‑S. 561‑‑Penal Code (XLV of 18.60), Ss. 307, 326, 325 & 333‑‑Acemsed violently attacking injured women‑‑Two head injuries found to be dangerous to life and three other injuries inflicted on face and neck clearly making out a case under S.307, P.P.C.‑‑Contention that no offence under S.307, P.P.C. made out and at best one under S.325 made out, repelled‑‑Conviction under 5.307, P.P.C. maintained in circumstances.

‑‑‑S. 561‑‑Penal Code (XLV of 1860), Ss. 307, 326, 325 & 323‑‑Accused fifteen years old, slapping son of injured lady in mosque‑‑Injured lady on complaint of her son starting abusing accused which led to some verbal quarrel‑‑Accused going to her house and picking up. a hatchet and assaulting lady‑‑Revisional Court enhancing sentence of two years awarded to accused by trial Court to 7 years without taking into consideration that action of accused was outcome of filthy abuses hurled by injured woman‑‑Sentence of 7 years reduced to two years in circumstances.

Shah Ahmad Khan Baloch for Petitioner.

Muhammad Fazil Naul for A.‑G. for the State.

Date of hearing: 6th April, 1985.

This is a miscellaneous petition filed by Rafiq alias Fikka, petitioner, against the judgment of an Additional Sessions Judge of Faisalabad, dated 24‑10‑1984, dismissing his appeal, but accepting the revision petition filed by Yaqub, complainant and enhancing his sentence awarded under section 307, P.P.C to seven years' rigorous imprisonment with a fine of Rs. 5,000 or in default thereof to undergo further rigorous imprisonment for one year. Earlier, a Section 30 Magistrate of Faisalabad by his judgment, dated 12‑7‑1984 had convicted the petitioner under section 307, P.P.C. and sentenced him to two years' rigorous imprisonment with a fine of Rs. 5,000 or in default thereof to undergo further rigorous imprisonment for one year.

2. The prosecution case in brief is that on 16‑11‑1983, Mukhter Ahmad, a son of Yaqub, complainant P.W.3, went to the mosque for getting his lesson in the Holy Quran, where he started playing with other children. Rafiq, petitioner, slapped the said Mukhtar Ahmed for playing about instead of taking his lesson. The said Mukhtar Ahmed went to his house weeping and narrated the incident to his mother Mst. Niamat Bibi, P.W.4. The said lady came out of her house and meeting Rafiq, petitioner, abused him, which led to a quarrel between the two, who were separated by the co‑villagers. Rafique, petitioner, went to his house after threatening that he would avenge his insult. Within a short time, the petitioner returned with a hatchet and immediately began assaulting Mst. Niamat Bibi, P.W.4 just outside her house. The incident was witnessed by Khan P.W. 2 and Ashraf P.W.5 who rescued the said lady. It appears that the lady suffered two grievous injuries on her head, apart from three contusions on her face and neck. The two grievous injuries on her head were declared to be dangerous to life.

3. I have heard the arguments of the learned counsel for the petitioner and the State. The only submission made by the learned counsel is that the sentence was wrongly enhanced, as the petitioner was only a young boy aged fifteen years at the time of occurrence and he had been provoked by Mst. Niamat Bibi, P.W.4 who had abused him. It is also contended that no offence under section 307, P.P.C. is made out but that at best one under section 325, P.P.C. is made out.

4. I have given my anxious consideration to this matter. From the F.I.R. it appears that both Mukhtar Ahmad, the son of Mst. Niemai Bibi, P.W.4 and Rafique, petitioner, were taking their lessons in the mosque. Though the age of Mukhtar Ahmad is not given but that of Rafique, petitioner, appears to be fifteen years at the time of occurrence. Very likely Mukhtar Ahmad was of the same age or perhaps less than the petitioner. The F.I.R. shows that the petitioner slapped Mukhtar Ahmad, because he had not taken his lesson but was playing. Whatever be the position, it appears that when Mukhtar Ahmad returned to his F house weeping, after having been slapped by the petitioner, Mst. Niamai Bibi, P.W.4 his mother went out looking for the petitioner and having found him started abusing him, which also led to some verbal quarrel, which infuriated the petitioner to go to his house and pick up a hatchet and return to the house of Yaqub complainant and assault Mst. Niamai Bibi, P.W.4 who was outside at the time. The violent nature of the attack launched and the two head injuries which were given by him on the head of Mst. Niamat Bibi, P.W.4 which were found to be dangerous to life and the three other injuries which he also inflicted on her face and neck clearly make out a case under section 307, P.P.C. However, it appears that the sentence awarded to the petitioner is somewhat excessive, considering that the petitioner's action is primarily the outcome of the filthy abuses hurled by Niamat Bibi, P.W.4 at him. The sentence appears to have been enhanced without taking into consideration this important factor. Taking all circumstances into consideration, I would maintain the conviction of Rafique petitioner under section 307, P.P .C. but would reduce his sentence of imprisonment to that previously awarded by the trial Magistrate.

5. For the foregoing reasons, the conviction of Rafique, petitioner under section 307, P.P.C. is maintained, but his sentence is reduced to two years' rigorous imprisonment with a fine of Rupees Two Thousand (Rs. 2,000) or in default to undergo one year's rigorous imprisonment. Rafique, petitioner, shall also pay Rupees Five Thousand (Rs. 5,000) to Mst. Niamat Bibi as compensation under section 544‑A, Cr. P. C. for the injuries suffered by her. In the event of non‑payment of compensation, the petitioner shall undergo further rigorous imprisonment for one year. The benefit of section 382‑B, Cr. P. C. shall be granted to the petitioner.

H. A. K. Miscellaneous petition partly accepted.

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