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Criminal Appeal No. 578 of 1985, decided on 18th November, 19851

‑‑ Ss. 324, 325 & 326‑"Instrument"‑"Instrument for cutting -- "By means"‑Meaning‑Injury by biting off top of nose of victim by accused with his teeth‑Natural teeth in mouth, of assailants whether "an instrument"‑''Instrument", what is [Words and phrases].

Natural teeth in the mouth of the assailant cannot be said to be "an instrument" at the disposal of the assailant "for shooting, stabbing or cutting" or as "an instrument, which used as a weapon of offence, is likely to cause death"'. May be that an assailant who is armed with an artificial set of teeth or a bone of a human being, both having sharp edges, whilst inflicting injuries with such set of teeth or bone, can be said to have used the same as an instrument for cutting, assuming that incised injuries were caused therewith. The word "instrument" used in sections 324 and 326, P. P. C. obviously has no reference to any part of a human body such as teeth, hands, or legs, so long .as they constitute natural working parts of a living body; .If an assailant were to give a blow with his fist, cutting 'the lips of his‑ victim, or a kick with his leg, cutting his shin, just because his sharp toe nail caused a cut, it cannot be stated that he used his fist or his leg (or the nail) as an "instrument for cutting". The words "instrument for cutting" used in these sections obviously have reference to something at the disposal of the assailant, extraneous to his own human body, which be can wield or use with his hands or feet. The instrument must be a sharp instrument with an edge, which will cut, or a point which will stab ; any instrument which answers this description, will be within the definition. whether made of metal or not. The words "by means of" in these sections obviously show that the "instrument" is not the person accused of causing hurt, but that which is used by him to cause hurt. The conviction of the accused who bit off top of nose of victim under section 326, P. P. C. was, therefore, not justified. The accused committed an offence tinder section 325, P. P. C.

‑‑ Ss. 324, 325 & 326‑Sentence‑Occurrence arising over .a sudden quarrel between young boys out of a bit of cricket ball‑Accused causing injury by his teeth to victim by biting off tip of his nose No previous enmity between parties found‑‑Accused had undergone one month and eleven days' detention as a convict‑Accused sen tenced under S. 325, P. P. C. to three months' rigorous imprison ment and to pay a fine of Rs. 1,000 with payment of compensation of Rs. 7,000 to victim under S. 544 A, Cr. P. C. for injury, etc. in circumstances.

Sardar Muhammad Latif Khan Khosa for Appellant.

Irshad Ahmad for A.‑G. for the State.

Date of hearing :11th November, 1985.

This is an appeal by Sattar, appellant, against the judgment of a Section 30 Magistrate of Okara, dated 30‑9‑1985, convicting him under section 326, P. P. C. and sentencing him to seven years' rigorous imprison ment with a fine of Rs. 10,000 or in default of payment of‑ fine to undergo further rigorous imprisonment for two years. Out of the fine, if realised Rs. 8,000 was ordered to be paid ,as compensation to Masood Arshad, injured.

2. The brief facts of the case are that on 21‑12‑1982 at about 10 a.m., a number of boys were playing cricket at the Stadium Ground. Okara, during which a ball hit by Amjad, accused, struck the right ankle of Rashad Mahmood, complainant P. W. 1, over which they abused each other and quarrelled. Zahid Rauf, however. intervened and patched up the matter. In spite of this, Amjad accused, threatened Rashad Mahmood, complainant, for evening the insult. The same day at about 12.30 noon the complainant and his brother Masood were passing in front of Civil Hospital, when all the seven accused persons arrived there. Amjad; accused, asked his companions to teach a lesson to Rashad Mahmood P. W. 1 for insulting him at the Stadium. They encircled him and started beating him. His brother Masood Arshad r. W. 3 came forward to rescue him, upon which they left Rashad Mahmond P. W. 1 and captured Masood Arshad P. W. 3. They then started giving him bearing and he fell down on the ground. Thereafter, Sattar, accused, sat on his chest and bit off the tip of his nose with his teeth. On hearing the alarm, Anwar Ali, Sardar Ali and Asghar P. Ws. reached the spot and rescued them.

3. The learned trial Judge acquitted six of the seven accused, as they were alleged to have Given three blunt weapon injuries to Rashad Mahmood P. W. 1. He, however, convicted Sattar, accused, as stated above, as the evidence of Rashad Mahmood P. W. 1 and Masood Arshad injured P. W. 3 was consistent to the effect that the said accused had bit off the tip of the nose of Masood Arshad P. W. 3.

4. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record. I need not go into the merits of this case, as the learned counsel for the appellant admits the occurrence, but only submits that the conviction and sentence of the appellant recorded under section 326, P. P. C: is both illegal and excessive and that, at worst conviction under section 325, P. P. C. alone can be recorded, for which a short sentence should be awarded, as the incident arose over a sudden quarrel amongst young boys over a cricket ball hitting the complainant. In view of the statement made by the learned counsel for the appellant, I will only confine myself to the limited question raised. The evidence of Rashad Mahmood P. W. I and Masood Arshad injured P. W. 3 is clear to the effect that during the fight Sattar, appellant, bit off the nose of the latter witness. The appellant has been convicted under section 326, P. P. C. on the basis that as he had bitten off the tip of the nose or Masood Arshad P. W. 3 with his teeth, he had used the said teeth as "an instrument for cutting", thus bringing into play the provisions of section 326. P. P., C. 10 the case in instance. I am afraid I cannot subscribe to this view. Natural teeth in the mouth of the assailant cannot be said to be "are instrument" at the disposal of the assailant "for shooting, stabbing or' cutting" or as "an instrument, which used as a weapon of offence, is likely to cause death". May be that an assailant who is armed with an artificial set of teeth or a bone of a human being; both having sharp edges, whilst inflicting injuries with such set of teeth or bone, can be said to have used the same as a instrument for cutting, assuming that incised injuries were caused therewith. The word "instrument" used in sections 324 and 326, P. P. C. obviously has no reference to any part of a human body such as teeth, bands or legs, so long as they constitute natural working parts of a living body. If an assailant were to give a blow with his fist, cutting the lips of his victim, or a kick with his leg, cutting his shin, just because his sharp toe nail caused a cut, it cannot be stated that he used his fist or his leg (or toe nail) as an "instrument for cutting". The words "instrument for cutting used in these sections obviously have reference to something at the disposal of the assailant, extraneous to his own human body, which he can wield or use with his hands or feet. When the Pakistan Criminal Code was being drafted, the Law Commissioners were put a question whether pointed stick could be classed as an instrument for cutting Their reply was : "The instrument must be a sharp instrument with an edge, which will cut, or a point which will stab ; any instrument which answers this description, we apprehend, will be within the definition, whether made of metal or not." (First Report of the Law Commission, page 380). the words "by means of" in these sect‑ions .obviously show that the. "instru ment" is not the person 'accused of causing hurt, but that which is used by him to cause hurt. The conviction of the appellant under section 326, P. P. C. is, therefore, not justified. The appellant appears to have committed an offence under section 325, P. P. C.

4. The occurrence arose over a sudden quarrel between young boys, which arose out of a cricket ball hit by Amjad, the acquitted accused, striking the right ankle of Rashad Mahmood P. W. 1. There appears to be no previous enmity between the parties. The appellant has undergone one month and eleven days' detention as a convict. Taking all circumstances into consideration, he is sentenced under section 325, P. P. C. to three months' rigorous imprisonment acid to pay a fine of Rupees one thousand (Rs. 1,000) or in default thereof to undergo further rigorous imprisonment for three months. The appellant shall also pay Rupees seven Thousand (Rs. 7,000) to Masood Arshad injured P. W. 3 as com pensation under section 544‑A, Cr. P. C. for the injury, mental anguish and psychological damage suffered by him. If the compensation is not paid by the appellant, he shall undergo further rigorous imprisonment for three months.

5. This appeal, therefore, stands partly accepted, in terms of alteration of conviction and reduction in sentence, as stated above.

M. B. A. Appeal partly accepted.

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