Sadiq Masih; Ziledar, Section Harpoke, Sheikhupura Division, has by this revision petition called in question the order of a learned Magistrate whereby Ghulam Mohay-ud-Din and Sana Ullah respondents have been charged for offences under sections 332/ 109 and 332, P. P. C. The petitioner who is the complainant in the case claims that he suffered a grievous hurt, therefore, the charge should have been under section 333, P. P. C., In this revision petition, grievance was, also made with regard to the failure of the Magistrate to charge the respondents under sections 364 and 466, P. P.
C. But the learned counsel for the petitioner has not pressed that part of the petition.
2. - In support of the contention that the petitioner suffered a grievous hurt in so far as the injury to his eye is concerned, the learned counsel for the petitioner has read certain portions of the medical evidence. It is true that, according to the doctor, injury, was found as he put, it "technically grievous" but on careful examination it has begin founds be only a, simple hurt.
Admittedly, no Eye Specialist or Expert has been produced by the prosecution, as a witness though it appears that at one stage an opinion of such an expert was obtained. Even that opinion did not go beyond the unexplained expression that the injury was technically grievous.
To show that an injury is grievous, it must fall within the purview of section 320, P. P. C., which reads as follows:- "The following kinds of hurt only are designated as "grievous."
Firstly : Emasculation.
Secondly : Permanent privation of the sight of either eye.
Thirdly-: Permanent privation of the hearing of either ear.
Fourthly: Privation of any member or joint.
Fifthly : Destruction or permanent impairing of the powers of any member or joint.
Sixthly : Permanent disfiguration of the head or face.
Seventhly : Fracture or dislocation of a bone or tooth.
Eighthly : Any hurt which endangers life or which causes the suffer to be during' the space of twenty days in the severe bodily pain, or unable to follow his ordinary pursuits."
3. Learned counsel frankly conceded that there was no permanent privation of the sight of any eye of the petitioner. He, however, relied on the opinion of the doctor to the effect that "there was conjunctivition, iridencleisis and dimness of vision which could result in permanent loss of vision.
It should not be only a possibility of permanent privation of the sight but also, in actually reality, it must have taken place that the hurt can fall within the clause "'secondly" of the definition of "grievous hurt".
4. The petitioner admitted in cross-examination that the number of his spectacles for both the eyes after the occurrence is the same, therefore, the learned counsel advanced an alternative argument to the effect that even though there was no permanent privation of the sight, there was no permanent impairment of the power of a member of the body. In this behalf he again relied on the observation of the doctor that there was some damage, to a component part of the eye.
Learned counsel stated that every small nerve, tendon or muscle of any eye, howsoever small and insignificant it may be, is by itself. "a member" of the body, therefore, as soon as damage was caused to it, it amounted to privation or permanent impairment of the powers of `member of the body'.
In spite of my asking the learned counsel to support his contention either from any medical authority or by a decided case, the learned counsel was unable to do so.
5. The contention raised by the learned counsel if extended to its logical ends will produce. Results which were never intended by the authors of the Code. If the argument is accepted then every cut to a small nerve or muscle of a limb will amount to the privation and permanent impairment of a member of the body. This obviously is not contemplated by any of the clauses of section 320, P. P.
C.
6. The expression "any member" used in clauses fourthly and fifthly in section 320, P. P. C., historically 'speaking refer to the old offence of Mayhem and Hawkins defined it to be `violently depriving any other of the use of such of his members as may render him less able in fighting either to defend himself or to annoy his, adversary' (See 1 Hawk P. C. III, IV Black 205.)
The term "Member" as used in the Code means a limb or an organ being a part of man, capable of performing a distinct office. As such it may include both eyes, ears, nose, mouth, hand and feet. It is the privation of any of these limbs or organs or the destruction or permanent impairment to their.
Powers that has been made punishable as grievous hurt under the Code. It is in this sense that the expression `member' has to be interpreted, as it is used in section 320, P. P. C.
7. The contention of the learned counsel, that the affecta--tion described by the doctor, conjunctivitis, and or iridencleisis, affects one or more component parts of the eye, therefore, it was likely, when the' injury was caused, that a permanent loss of vision is may have occurred, is riot available to him. I have already noticed that the permanent privation of the sight has not been proved. Rather on the contrary, the statement of the petitioner shows, that the eye-sight in both the eyes remained of same strength after the occurrence.
8. In the light of the above discussion I hold that the prosecution has failed to prove the injury suffered by the petitioner as grievous. Thus no fault can be found with regard to the charge framed by the learned Magistrate.
9. Before concluding this order it needs to be mentioned and emphasised that it is not the job of the doctor, to decide the question whether or not a hurt is grievous. The doctor has to give his observation and also his opinion with regard to the circumstances directly connected with the injury and his observa--tion. It is not his responsibility, particularly when there is some confusion, to decide whether or not the injury observed by him fell within the definition of 'simple or grievous hurt.
The present case can be cited as a typical example for the above view. The use of the word `technical' if I may say so is an imaginative invocation by the doctor for which there was absolutely no justification in this case. When asked to explain as to why he used the word technical the doctor answered as follows:- "By injury No. 1 there could have been loss of vision if no treatment would. Have been given to him."
This opinion obviously will not bring the hurt within the definition of grievous.
10. In the light of the above discussion I find no merit in this petition and the same is dismissed.