ANWAARUL HAQ PANNUN, J. Abdul Hameed alias Meeda, the petitioner and Muhammad Bilal, his co-accused, were sent up to face trial in a criminal case registered vide F.I.R No.303 dated 15.11.2011, under Sections 324/336/337-D/337-F(v)/34 PPC, at Police Station Dhanote, Kehror Pacca, District Lodhran, on a complaint in writing (Exh:PA) made by Khuda Bakhsh, (PW-1) with the allegation that on 15.11.2011 at about 12.20 p.m., the complainant along with Siddique came at the shop of his brother Azhar Iqbal, situated at Dhanote Railway Bazaar. Azhar Iqbal, while leaving them on the shop, for recharging his cell-phone by way of easy-loading and as soon as he started heading towards the relevant shop, Muhammad Bilal, Abdul Hameed alias Meeda, the petitioner while armed with pistol 30 bore came there on motorcycle Honda 125/CC, bearing registration No.1052 and they deboarded. Muhammad Bilal raised lalkara that he will not be spared and in the meanwhile, the petitioner made fire shot with his pistol, hitting on right side of his back. The complainant along with PWs tried to apprehend the accused but they while boarding on their motorcycle and brandishing the pistol, fled away from the spot. The motive behind the occurrence was an exchange of hot words between the accused and the injured Azhar Iqbal. After usual investigation, the accused were sent up to court, while taking cognizance, the learned trial Judge charge sheeted the accused, to which they pleaded not guilty and claimed trial. The prosecution examined as many as 11-witnesses to prove the charge. The ocular account has been furnished by Khuda Bakhsh, the complainant (PW-1) and Azhar Iqbal, the injured (PW-2); Khalil Ahmad 6/HC (PW-3) chalked out the formal FIR (Exh:PB); Dr. Muhammad Rafiq (PW-4) initially examined the injured Azhar Iqbal and found the following injuries on his body:- Injury No.1:- as per chart a wound was present at the back of abdomen near and to the right of mid line at the level of L-1 (Wound of entry).
Injury No.2:- a lacerated septic wound 10mm x 8mm seen on front of the abdomen. The 5 cm below to left costal margin and 5 cm lateral to midline(wound of exit).
All the injuries were kept under observation. That subsequently according to Exh-PE he declared the injuries due to fire arm.
Injury No.3:- That on report of CT scan, there was fracture of spine lamina of LII and body of LIII vertebrae.
Result of injuries Injury No.1:- Itlaf-i-Salahiyyat-i-udw (two legs, urinal bladder, anal sphincter, potency of penis).
Injury No.2:- Jurh Jaifah and Injury No.3:- Jurh Ghair Jaifa Hashimah.
According to report Exh:PK, prepared by Dr. Muhammad Sajjad Hussain, Registrar Neuro Surgery Ward Bahawalpur (PW-9), the injured Azhar Iqbal sustained paraplegia (complete spinal injury) fecal and urinary incontinence. Dr. Captain Muhammad Siddique Tahir (PW-10) issued surgical notes (Exh:PG) and he explained firearm injury in the abdomen with entry wound on the right lower back and exit wound on the interior abdomen wall on left side. He also declared that the injured sustained paraplegia of the legs below knee joint, done laparotomy, mesentery tear, vide his report Exh:PL; Muhammad Majeed (Ret.) ASI (PW-5), Munir Ahmad ASI (PW-7) and Azhar Hussain ASI (PW- 11) conducted the investigation; Mulazim Hussain 421/C(PW-6) is the witness of recovery of pistol 30 bore allegedly recovered on pointing out of the petitioner from the graveyard whereas, Qaiser Abbas 110/C (PW-8) is the recovery witness of motorcycle allegedly produced by brother of the accused Bilal to the I.O. The prosecution also produced certain documents Exh:PA to Exh:PL. After closure of prosecution's evidence, when examined under Section 342 Cr.P.C, the accused/ petitioner, refuted all the allegations levelled against him and professed his innocence. The accused neither opted to examine themselves under Section 340(2) of Cr.P.C, nor to produce evidence in their defence. On conclusion of the trial, learned trial Judge convicted and sentenced the petitioner and his co-accused through the impugned judgment dated 21.01.2020 as under:- The accused Muhammad Bilal (Under Section 324 PPC)
Sentenced to five years RI as Ta'zir along with fine Rs.45000/- and in default thereof to further undergo 02 months S.I.
He will pay compensation of Rs.1,00,000/- to injured Azhar under Section 544-A Cr.P.C and in default thereof to further undergo 04-months S.I.
Benefit of Section 382-B Cr.P.C has however been extended to him.
The accused/petitioner Abdul Hameed alias Meeda (Under Section 324 PPC)
07-years R.I along with fine of Rs.45,000/- and in default thereof to further undergo 02-months S.I.
(Under Section 336 PPC, Itlaf-i-Salahiyya t-i-Udw of two legs)
07-years R.I as Taz'ir and to pay Arsh amount as value of Diyat (as per fixed by Government notification 2019 2020) u/s 337R PPC to the injured.
(Under Section 336 PPC, Itlaf-i-Salahiyya t-i-Udw of Urinary Bladder)
07-years R.I as Taz'ir and to pay Arsh amount as value of Diyat (as per fixed by Government Notification 2019 2020) u/s 337Q PPC to the injured.
(Under Section 336 PPC, Itlaf-i-Salahiyat-e-Udw of anal sphincter)
07-years R.I as Taz'ir and to pay Arsh amount as value of Diyat (as per fixed by Government notification 2019 2020) u/s 337Q PPC to the injured.
(Under Section 336 PPC, Itlaf-i-Salahiyat-e-Udw of Potency of Penis)
07-years R.I as Taz'ir and to pay Arsh amount as value of Diyat (as per fixed by Government notification 2019 2020) u/s 337Q PPC to the injured.
(Under Section 337-F(v) PPC for causing fracture of spine lamina of L2 of the injured)
05-years R.I as Taz'ir and to pay Rs.1,00,000/- as Daman to the injured.
(Under Section 337-F(v) PPC for causing fracture of body of L3 vertebrae of the injured)
05-years R.I as Taz'ir and to pay Rs.1,00,000/- as Daman to the injured.
The convict shall also pay Rs.1,00,000/- as compensation to the injured under Section 544-A Cr.P.C. and in default thereof to undergo 04-months S.I.
The benefit of Section 382-B Cr.P.C has however been extended to the convict. All the sentences shall run concurrently. Till the payment of daman and Arsh, the convict will remain in jail. The value of Diyat according to Notification of Government of Pakistan for year 2019-20 is Rs.23,20,202/- for 30630 grams of silver as prevailing rate at the time of order (judgment) of payment which is held for determination of Arsh amount in respective conviction of the offender.
The petitioner and his co-accused Muhammad Bilal being aggrieved, filed separate appeals against their convictions and sentences whereas the complainant filed criminal revision petition, seeking enhancement of their sentences. The learned Addl. Sessions Judge, Lodhran, allowed the appeal of co-accused Muhammad Bilal and acquitted him of the charge, whereas the appeal of the petitioner and revision petition of the complainant were dismissed through the impugned consolidated judgment dated 20.06.2020. Hence, this criminal revision petition.
2. In pith and substance, learned counsel for the petitioner with reference to section 71 PPC, while relying upon judgments of "Jalal Khan vs. Government" (PLD 1952 Azad J. & K 8), "Ghulam Hassan and another vs The State" (1969 P.Cr.L.J 151), "Faiz Muhammad vs the State" (1981 P.Cr.L.J 12), " Allah Ditta and another vs. The State" (1984 P.Cr.L.J 433), "Bashir Ahmad vs The State" (1985 P.Cr.L.J 1516), "Ghulam Maqsood vs The State" (2002 YLR 513), "Muhammad Sarfraz vs. The State" (2009 YLR 1131) contends that the punishments awarded to the petitioner under Sections 336,337-F(v) PPC, simultaneously under section 324 PPC being made up of different offences, is not sustainable. On the other hand, learned counsel for the complainant, with reference to exception contained in Section 71 read with Section 324 PPC and under Section 337-W PPC contends that the argument of learned counsel for the petitioner is self-defeating, and has defended the impugned judgment.
3. Arguments heard and record perused.
4. The kinds of punishments to which the offenders are liable under the Pakistan Penal Code, 1860 (hereinafter to be called as The Code) have been mentioned in detail in Section 53, Chapter III of Punishments, upon reading the same together with general explanations as contained in Chapter II along with the definitions of the aforesaid punishments in Section 299 of the Code, it depicts the following picture:- Firstly, Qisas; means punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali.
Secondly, Diyat means the compensation specified in section 323 PPC [The value of Diyat shall, subject to Injunctions of Islam as laid down in Holy Quran and Sunnah and keeping in view the financial position of the convict and heirs of the victim, have to be fixed by the Court which shall not be less than the value of thirty thousand six hundred and thirty grams of silver. For the purpose of subsection (1) of 323 of the Code (value of Diyat), the Federal Government shall, by Notification in the official Gazette, declare the value of silver' on the first day of July each year or on such date as it may deem fit, which shall be value payable during a financial year] payable to the heirs of the victim.
Thirdly, Arsh: The specified compensation to be paid to the victim or his heirs under Chapter II.
Fourthly, Daman: The compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh.
Fifthly, Ta'zir: Punishment other than qisas, Diyat, arsh or daman.
Sixthly, Death {Section 46 PPC} denotes the death of a human being, unless the contrary appears from the context {Notes} permanent cessation, cessation of all vital functions and signs irreversible cessation of circulatory and respiratory functions including the brain stem.
Seventhly, Imprisonment for life {Section 45 PPC} the word life denotes the life of a human being unless the contrary appears from the context.
Eighthly, Imprisonment which is of two descriptions, namely:
(i) Rigorous i.e., with hard labour;
(ii) Simple; Ninthly: Forfeiture of property; Tenthly: Fine.
5. Needless to say that an attempt to commit a crime consists of the ingredients i.e. (i) the intent to commit the crime; (ii) performance of some overt act towards the commission of the crime; and
(iii) failure to consummate its commission on account of the circumstances beyond the control of the offender. The legislature in its own avowed wisdom, had enacted inter-alia the provision of Section 324 PPC which reads that "whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than five years, if the offence has been committed in the name or on the pretext of honour, and shall also be liable to fine, and, if hurt {according to Section 44 of the Code the word "injury" denotes any harm whatever illegally caused to person in body, mind, reputation or property, whereas according to Section 332 of The Code, causing pain, harm, disease, infirmity or injury to any person or impairing, causing disability, disfigurement, defacing or dismembering any organ of the body or part thereof of any person without causing his death is said to causing hurt".} is caused to any person by such act, the offender shall in addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused". Provided that, where the punishment of the hurt is Qisas, which is not executable, the offender shall be liable to Arsh.
6. The injury in its characteristics is more distinguishable from the hurt because of its corporeal effect. The hurt, under the law as explained above, has been divided into various types and kinds.
(a) itlaf-i-udw {dismembering, imputation, severing any limb or organ of the body of another person}.
(b) itlaf-i-salahiyya t-i-udw {destroying or permanently impairing the functioning power or capacity of an organ of the body of any other person, or causing permanent disfigurement}.
(c) Shajjah {causing on the head or face of any person any hurt which does not amount to Itlaf-i- Udw or Itlaf-i-Salahiyyat-i-Udw} is of six kinds i.e. (a) Shajjah-i- Khafifah {causing injury without exposing bone of the victim} (b) Shajjah-i-mudihah {exposing any bone of the victim without dislocating it}, (c) Shajjah-i-hashimah {fracturing the bone of the victim and without dislocating it,
(d) Shajjah-i-munaqqilah {causing fracture of bone of the victim and thereby dislocating of bone
(e) Shajjah-i-ammah {causing fracture of the skull of the victim so that the wound touches the membrane of brain (f) Shajjah-i-damighah {causing fracture of skull of the victim and the wound ruptures the membrane of the brain.
(d) Jurh {causing on any part of the body of a person, other than the head or face, a hurt which leave a mark of the wound, whether temporary or permanent} is of two kinds (a) Jaifah {causing jurh in which the injury extends to the body cavity of the trunk (b) Ghayr-Jaifah {causing jurh which does not amount to jaifah} is of six kinds (a) Damiyah {in which the skin is ruptured and bleeding occurs (b) Badiah {cutting or incising in the flesh without exposing the bone (c)
Mutalahimah {lacerating the flesh (d) Mudihah {exposing the bone} (e) Hashimah {fracture of bone without dislocating it, (f) Munaqqillah {fracturing and dislocating the bone}.
(e) all kinds of other hurt: includes hurt (i) by rash or negligent driving (ii) by mistake (iii) by means of poison (iv) to extort confession or to compel restoration of property and (v) other hurts.
7. From the above, it is quite obvious that the provision of Section 324 PPC consists of two parts i.e. commission of an act with intention or knowledge to commit Qatl-i-Amd; whereas in the second part the effect of all above noted components i.e. act, intention and knowledge has been described. The intention of accused qua commission of an offence becomes quite evident from his action. The failure in achieving his object by the accused, because of the circumstances beyond his control shall be immaterial in constituting the offence under Section 324 PPC. Thus, availability of incriminating material on record showing the fulfillment of above noted conditions, would be sufficient to convict an accused for making an attempt to commit Qatl-i-Amd independently, and in case of causing any hurt, in view of intention of the legislature, duly encapsulated in this provision, the offender can further be convicted and sentenced for the hurt caused distinctly.
8. In view of above narrated factual as well as the synopsis containing the relevant legal provisions, to examine the weight and strength of arguments of the parties noted above, it is felt appropriate to reproduce hereunder the provision of Section 71 PPC in its verbatim at the first instance:-
71. Limit of punishment of offence made up of several offences. Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for anyone of such offences.
Illustrations
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.
(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y.
9. Section 71 of P.P.C. being a controlling provision, unambiguously speaks of limit of punishment to be inflicted upon an accused for having committed an offence made up in parts constituting separate offences instead of punishing him for each such separate offence. However, at the same time, it cannot be ignored altogether that the legislature has created an in-built exception to the general rule contained in the provision by employing conspicuously specific wording to the effect "unless it be so expressly provided". In-fact it appears that this provision of Section 71, PPC has been enacted to save an accused from double jeopardy by way of recording conviction and awarding him the sentence for the same twice.
10. In the facts and circumstances of instant case, after due appraisal of oral and medical evidence, it has been held by both the courts below through their judgments impugned herein that the petitioner is guilty of making a fire shot with his pistol, hitting on the right side of back of injured Azhar Iqbal (PW-2), which is a vital part of his body, and had also further caused Itlaf-e- Salahiyya t-i-Udw of two legs, urinary bladder, anal sphincter, potency of penis and fracture of spine lamina of L2, fracture of body of L3 vertebrae and as such the injured had been rendered to a living corpse, thus the convictions and sentences awarded to the petitioner, when viewed through the prism of Section 337-W PPC which states that "where an accused causes more than one hurt, he shall be liable to arsh specified for each hurt separately", and as such the argument of learned counsel for the petitioner is repelled being self-destructive and suicidal. In revisional jurisdiction under Section 439 Cr.P.C, this Court has to satisfy itself about the correctness, legality or propriety of any order/judgment passed by a lower court and unless the impugned order/judgment is found to be unreasonable causing miscarriage of justice or glaring irregularity materially affecting the proceedings or patent illegality vitiating the impugned decision, the same cannot be interfered with. No case for interference in the impugned judgments, which have been passed by both the courts below after proper appreciation of evidence and law, is made out. Accordingly, this revision petition is dismissed.
11. I also duly appreciate the assistance rendered by Mr. Muhammad Zahid Farid Wattoo and Mr. Ejaz Ahmad Sipra, Civil Judges/Research Officers, to deal with the issue discussed and dealt with hereinabove.