Ali Hussain is a petitioner in a complaint case originally registered under sections 307/34 and 452/34, P. P. C., but the learned Magistrate, after recording the material prosecution evidence, framed a charge under sections 452/34 and 308/34, P. P. C., Feeling aggrieved by it he moved an application under section 435, Cr. P. C. Questioning the correctness of this order which was dismissed by Sheikh Ijaz Nisar, Additional Sessions Judge, Lahore, on the 26th of May 1969. He has accordingly approached this Court under section 439; Cr. P: C., for the revision of same on the ground that the trial Court had failed to appreciate the evidence on record.
2. The prosecution, case, in brief is that respondents Nos.,
2. To 4, in furtherance of their common intention, committed criminal trespass in the house of the petitioner when. Nasir Ali caught hold of him and Noor Muhammad, on the exhortation of Safdar Ali, inflicted a knife blow on the lower part of his abdomen near the route of the genital organ measuring --' x --" and was declared simple by the doctor vide, medico-legal report Exh. P. C.
3. The learned counsel for the petitioner contended that on the allegations made against the respondents the offence fell under section 307, P. P. C., and the learned Magistrate should not have shown undue hurry in framing the charge under section 308, P. P. C., as even after drawing out a charge under section 307, P. P. C., it would have been open to him to either acquit the respondents or to convict them under any minor offence. He further contended that the nature of the injury and its site was not the necessary ingredient of an offence under section 307, P. P. C., as the offence is to be judged from the intention or knowledge with which the blow is inflicted and it was not necessary that the injury inflicted should in itself be sufficient in the ordinary course of nature to cause death, Reliance was placed on Muhammad Nazir and others v. The State (PLD 1963 Lah. 442) and Ghulam Qadir v: The State (I L R 18 Lah. 111).
4. It is no doubt true that the weapon used, the nature and seat of injury are not the only criterions to judge the gravity of the offence but it is the intention and the knowledge of the assailant and the motive behind the violence used by him which would form the basis to determine if the at of the assailant would invoke the provisions of section 307, P. P. C. In fact the motive, behind the violence used indicates the state of mind i.e. The intention of an individual is the decisive factor to judge his at.
5. In the present case appraisal of the evidence would reveal that there was no strong motive or personal malice for Noor Muhammad respondent to have attacked the petitioner. It was alleged that Nasir Ali had caught hold of the petitioner by his arm with a view to take him out of the house and on the noise raised by the later Safdar Ali respondents is said to have exhorted Noor Muhammad to take out the knife and on his bidding lie is said to have inflicted the solitary knife blow and then leaving the petitioner there the three respondents disappear--ed. This factor would negate an intention to kill otherwise some further blows could have been dealt by the respondents to accomplish the task if they desired to kill him as there was nobody to intervene except his old mother. The nature of injury also pointed in the same direction. It was an oblique superficial type incised wound (-- x --) aimed at the lower part of the abdomen and the mere fact that a nerve had been cut resulting in bleeding, which if not stopped could have proved fatal, did not change the nature of the injury front simple to a grievous hurt. In this view of mine I find support from Abdul Latif v. The Sate (PLD 1960 Lah. 62) wherein it was observed that injury to nerve is not covered by any one of the eight ingredients which are essential to designate a hurt as grievous. In the absence of any circumstances indicating an intention or knowledge of the respondents that by causing such an injury they would have caused the death of the petitioner the learned Magistrate had acted rightly in framing a charge under section 308/34, P. F. C., in respect thereof. The contention of the learned counsel for the petitioner that the trial Magistrate should have framed a charge under section 307, P. P. C., and at the close of the case convicted the respondents, under section 308, P. P.
C., itself betrayed the weakness of his case and the half-heartedness of the course adopted by him in prefer-- ring this petition, I therefore, find no grounds to interfere and dismiss the same. The record of the case to be sent back immediately, to avoid, delay in disposal of the case by the trial Court.