1. ' This appeal by the State is directed against the impugned order of the learned Magistrate dated 28-4-1982 whereby he acquitted Abdur Rashid and Fazal accused charged under section 326/34, P.P.C.
2. At the time of preliminary hearing, the learned Additional Advocate-General, appearing for the State, conceded that the prosecution could not bring home the charge to respondent Fazal. The learned Judge vide his admitting note dated 6-11-1982, therefore, admitted the appeal against respondent Abdur Rashid alone for appraisal of the prosecution evidence.
3. Briefly stated the facts giving rise to this case are that the complainant Abdul Malik P.W.4. Was a constable in the Excise and Land Customs Department Mardan and the two accused Abdur Rashid and Fazal were also employed in the same department as constables. On the fateful day, it is alleged, the complainant visited the office of Inspector Hussain and enquired about him from the respondent to which respondent replied that Inspector Hussain had left for his house and the complainant should go there. The respondent further made derogatory remarks against the complainant calling him as the dog of the officer to which the complainant protested. Meanwhile at the instance of Fazal accused, Rashid respondent caught hold of the complainant and gave a bite on his left ear, thereby tearing off the pinna of the ear. On raising hue and cry, he was rescued.
2. Immediately thereafter he reported the matter to Mr. Abdur Rashid Khan Durrani, Superintendent, Excise and Land Customs, Mardan, at whose instance he went to the Police Station A-Division, Mardan and lodged the report which was recorded vide F.I.R. No.438 dated 24-8-1978 under section 326/34, P.P.C.
3. ' The complainant was examined by Dr. Ihsanullah Khan, Medical Officer, District Headquarters Hospital, Mardan and, besides finding a lacerated left ear without pinna, there were teeth bite marks and a bruise on the chin of the complainant. After completion of the investigation the accused Fazal and the respondent were charge-sheeted before the Sub-Divisional Magistrate, Mardan.
4. ' The prosecution examined seven witnesses in support of its version. When examined under section 342, Code of Criminal Procedure, the respondent claimed innocence and stated that he had been falsely charged. The learned Magistrate, in his impugned judgment, found that the prosecution had failed to prove the charge against the accused beyond the shadow of doubt and acquitted him under section 245 of the Code of Criminal Procedure.
5. ' I have heard Mr. Shahzad Akbar, Advocate for the State and Mr. Jalal-ud-Din Khan, advocate for the respondent and have also perused the record with their valuable assistance.
6. ' A reference to the statement of the complainant Abdul Malik', P.W.4 read with that of Dr. Ihsanullah Khan P.W.6 establishes that the complainant sustained the injury on his left ear as alleged by him for which he specifically charged the respondent. Instead, the learned trial Court gave more importance to the statements of other witnesses for the prosecution namely Ayub Khan P.W.3 and Abdur Rashid Khan Durrani P.W.1 particularly to the portions wherein they have shown their inability to have seen the piece cut from the ear of the complainant. It may, however, be noted that Abdur Rashid Khan Durrani P.W.1, as per his examination-in-chief did see complainant bleeding from his ear immediately after the occurrence when Abdul Malik complainant went to inform him of the occurrence and he confirms that on his direction the complainant left for the police station to lodge the report.
7. ' So far as the severving of a piece of the complainant's ear is concerned, the factum is established beyond any doubt from the statement of the complainant supported by the medical evidence. The complainant has charged therefor the respondent. The respondent's negative replies to the questions made in this regard, gave no explanation as to how the complainant could sustain this, injury and why specifically he was charged therefor.
8. ' Normally in hurt cases the statement of the complainant supported by the medical evidence in considered sufficient to warrant conviction under the relevant provision of the Pakistan Penal Code.
9. This rule is however subject to the condition that the nature, locale and gravity of the injury sustained by the complainant and the charge levelled against accused person or persons therefor, are not compatible with the innocence of the accused persons, in a given situation and the attending circumstances of the occurrence.
10. ' From the impugned order of the learned Magistrate, whereby he acquitted the respondent, while the case of Fazal accused could be distinguished from that of the respondent, it appears that he failed to bear in mind the principle, as stated above, in hurt cases, but also gave reason for the acquittal which can be termed as neither cogent nor well-founded.
11. ' The learned counsel for the respondent, however, raised a question about the nature of offence and submitted that it does not fall under section 326, P.P.C, in the circumstances as brought on the record, but would fall under section 325, P.P.C. I tend to agree with him in holding accordingly.
12. ' In the light of the foregoing discussion, I accept this appeal, set aside the impugned order of the learned trial Court and finding the respondent guilty of an offence under section 325, P.P. C., sentence him to one year R.I. And a fine of Rs.1,000 or in default to undergo further R.I. For three months. The fine if realised shall be paid to the complainant as compensation under section 544-A of the Code of Criminal Procedure. The benefit of section 382-B of the Code, if any, shall also be extended to the respondent. The respondent is present on bail in Court. His bail bond stands cancelled, he is taken into custody and remanded to jail for undergoing the sentence.