1. Being aggrieved with the sentence awarded to accused by the IV Assistant Sessions Judge, Karachi by Judgment, dated 25th February, 1981 the applicant Nazir Ahmed filed this Revision under section 439, Cr. P. C. And prayed that conviction of the respondent/accused be altered from section 326, P. P. C. To section 307, P. P. C. And also sentence be enhanced.
2. Briefly the facts of the prosecution case are that on 13th December, 1973 Abdul Wahid, Sub- Inspector Garden Police Station Karachi received telephonic message that one Nazir Ahmed received injuries and was in Hospital. He went to Hospital and found that injured was not in a position to make statement, therefore, he recorded the F. I. R. Under section 307, P. P. C. Lodged by Zafar Iqbal wherein he stated that he alongwith injured Nazir was going when accused Nazar Muhammad challenged and caused injuries to Nazir Ahmed. He has further stated that he took injured to Hospital where Police came and then his complaint was registered.
3. After usual investigation the case under section 307, P. P. C. Was challaned and learned Assistant Sessions Judge finally convicted the accused under section 326, P. P. C. And sentenced him R. I. For 3 months and fine of Rs, 2,000 or in default to undergo 15 days' R. I. And Rs, 1,000 was ordered to be paid to injured out of the fine.
4. Learned counsel for applicant contended that accused wilfully attempted on the life of applicant and injury was admittedly opined to be grievous therefore the learned Judge could DOE, in law, convict the accused under section 326, P. P. C. And that lesser sentence awarded by the trial Judge is against the principles laid down by ' the Superior Courts of Pakistan. He has relied upon PLD 1956 Dacca 106, PLD 1973 SC 418, P D 1969 SC 798 and PLD 1971 SC 541.
5. Mr. Syed Naqi Mirza, learned counsel for respondent/accused submitted that this case was registered in 1975 and was decided after 6 years in 1981, and after judgment accused has served out the sentence and .He also remained under-trial prisoner for five months. He has argued that Judgment of the learned Assistant Sessions Judge in view of the circumstances is proper.
6. Mr. Ashraf Khan Tanoli, the learned counsel appearing for State has not supported this Revision, without assigning any reason on merits. He has stated that Government has not moved for enhancement of sentence.
7. The relevant facts of the present case are that no appeal against the Judgment of conviction has been preferred by accused. Now only question to be decided whether the learned Judge was justified in awarding lesser sentence and could convict the accused under section 326, P. P. C.
8. Instead of section 307, P. P. C.
9. The evidence of Dr. Preetam Exh. 9 is that on 13th December, 1975 at about 9-30 p.m. Nazir Ahmed was brought to Civil Hospital by his brother Zafar Iqbal and on examination he found following injury on his person :- "Incised wound 3" x i" with cavity deep on left side of hypochon- drium and abdomen. Omentum was outside the body. Having orrespondence a cut mark over clothes."
10. He has further stated that patient was in .State of shock and was given emergency treatment alongwith life saving drugs ; the injury was fresh, grievous and caused by sharp cutting weapon.
11. P. W. 1 Nazir Ahmed has stated that accused Nazar Muhammad save him knife blow but saved himself and on second time he sustained injury on ribs. He has further stated that he was operated upon three times in P. H. Shifa and West Germany. The other evidence is those of eye-witnesses which has already been 'accepted by the learned Assistant Sessions Judge and it has not been challenged by way of appeal as stated above, therefore, I do. Not like to go into the details of the evidence.
12. There is nothing in the Medical Certificate or evidence of Dr. Preetam, that injury sustained by Nazir Ahmed was declared to be dangerous to life. The prosecution has also failed to produce the certificates of the Doctors who operated the patient and even injured has not been able to produce such documents uptil now, therefore, there is no documentary proof of operations. The injured has even not stated in his statement Exh. 2 that accused attempted to commit his murder and that there is only one injury on the body of Nazir Ahmed, therefore, in these circumstances the learned Assistant Sessions Judge was justified in convicting the appellant under section 326, P. P. C.
13. The grounds given by the learned Assistant Sessions Judge for taking lenient view in awarding lesser sentence are neither convincing nor are in accordance with the principle of natural justice.
14. Therefore, I am of the opinion that sentence of 3 months' R. I. And fine of Rs, 2,000 is inadequate when punishment provided under section 326, P. P. C. Is imprisonment of life or ten years and fine.
15. In a case Amir. Khan v. The State . It was held that sentence of one year awarded by Section 30 Magistrate in a case under section 307, P. P. C. Was ridiculously low and finally it was ordered that accused to suffer five years' R. I. With regard to the powers of the High Court it has been held in PLD 1966 Dacca 83 that :- "With regard to the powers of the High Court in respect of enhancement of sentence we have kept in view the provisions of section 439, Cr. P. C. We find that except in the case mentioned in subsection (3) of section 439, Cr. P. C. The powers of the High Court are in no way restricted in enhancing the sentence imposed upon an accused by the trial Court."
16. In the present case, as argued by the State Counsel the Government has not moved High Court for enhancement of sentence and on this ground he has not supported the revision. Federal Court in case Talib v. The Crown held that application for enhancement by private party is not barred and it is plain from the very wording of section 439, Cr. P. C. That it is competent to a High Court, upon a1 2 private application by which a particular proceeding is brought to its notice, to take action in proper case to enhance a sentence.
17. In view of the foregoing reasons, I am of the view that sentence imposed on Nazar Muhammad while convicting him is inadequate. The Superior Court have not only to do the justice but see that justice is done. Accordingly I accept the Revision to the extent of enhancement of sentence and order that Nazar Muhammad/respondent No, 1 be sentenced to suffer R. I. For 5 years (instead of three months' and pay fine of Rs, 5,000 or in default to undergo six months' R.I. The fine so realized be paid to injured Nazir Ahmed. The accused/respondent be given benefit of section 382-B, Cr. P. C.
18. And it is for Jail authorities to verify. The respondent Nazar Muhammad be taken to custody and he should serve out the sentence as ordered above. 1982 P Cr. L J 436 PLD 1955 SC 42