' This order disposes of reference made by learned Additional Sessions Judge, Multan, under section 435, Cr.P.C. Read with section 438 for orders by the High Court under section 439 of the Code for substantial enhancement of the sentence of imprisonment as well as that of fine imposed by the trial Magistrate on Nabi Bakhsh respondent (accused) in consequence of his conviction for the offence of attempted murder punishable under section 307, P.P.C. And also for orders for payment of mandatory compensation under section 544-A by the respondent to Karim Bakhsh complainant, victim of murderous assault by the former.
2. In view of the order I propose to pass in this case it will be unnecessary to recount in detail the facts leading to the prosecution of the respondent. Concisely, the respondent was charged before Sub-Divisional Magistrate, Lodhran, District Multan, also empowered under section 30, Cr.P.C. For the above said offence with the allegation that he had on 20th of June, 1965 assaulted Karim Bakhsh complainant with knife in his hand causing him a number of severe injuries which all excepting one had landed into the chest. Injury No,1 on the right of the back of the chest which reached pleura and had also torn the lung was declared dangerous to life. Another injury incised wound 1-1/4" x 2/5" bone deep 3" above the ear was declared grievous as bone underneath the injury was cut. Karim Bakhsh had fallen down unconscious as a result of the injuries on him and was removed to the hospital where he was examined by Dr. Hamid Mukhtar Shah (P.W.5) and found to have on him 5 injuries all incised wounds caused by sharp-edged weapon (P.O.) The nature of injuries (1/5) has already been alluded to in the foregoing lines. The remaining three injuries (2 to 4) were found simple in nature. The doctor also informed the police about the arrival of the complainant in injured condition in the hospital (P.D./1). Ghulam Hussain and Ashiq Hussain (P.Ws. 3/4) who had tried to intervene and sustained injuries in the scuffle were also examined by the said doctor and found to have suffered an incised wound each (P.E./P.F.) Karim Bakhsh who was in a precarious condition was rushed to B.V. Hospital, Bahawalpur, for better treatment.Besides Karim Bakhsh, Linn, Ashiq Hussain and Ghulam Hussain were examined as eye-witnesses in the case who fully supported the prosecution. The respondent repudiated the charge as false and examined four witnesses in defence. Wahib All (D.W.1) stated that the respondent was a person of good conduct. The next witness Irshad (D.W.2) stated that Karim Bakhsh had sustained injuries during the fight with a cobbler. The - respondent was not present at the time of occurrence. The remaining two witnesses Murad Ali and Abdur Razaq (D.W.3/4) had testified to the plea of alibi.
3. Learned trial Magistrate accepted the evidence on the side of prosecution rejecting the plea of substitution of the appellant for the real assailant as well as the plea of alibi put forth by him which was sought to be sustained on stereo-typed oral evidence. Consequently, the charge was upheld against the respondent with the finding that Karim Bakhsh had suffered injuries at the hands of the respondent. The injuries were sufficient to cause death in the ordinary course of nature and the respondent had inflicted these injuries on Karim Bakhsh with the requisite intention, or knowledge as envisaged in section 307, P.P.C. The respondent was thus ordered to suffer imprisonment for three years and a fine of Rs,50 in default further rigorous imprisonment for three months.
4. Appeal was filed before learned Sessions Jduge, Multan, to assail conviction and sentence of the respondent. Karim Bakhsh complainant also preferred an application in revision under section 435/438, Cr.P.C. For enhancement of sentence of the respondent. Learned Additional Sessions Judge dismissed the appeal and referred the case for orders for enhancement of sentence of the respondent with the view that severe and deterrent sentence which should be eye-opener for others was called for in this case. Learned Additional Sessions Judge was also of the view that sentence of fine of a paltry amount of Rs,50 also needed revision, and learned trial Magistrate should have also passed orders for payment of mandatory compensation by the respondent.
5. After some arguments which are hardly worth even a casual reference muchless a serious notice, learned counsel for the respondent abandoned challenge to the concurring findings of guilty against the ,respondent. Learned counsel found it impossible to meet the point that statement of Karim Bakhsh complainant in itself coupled with medical evidence was quite sufficient to hold the respondent guilty even if evidence of remaining three wintesses in the case were overlooked which was also not possible to do. Presence of these witnesses who have their shops at the site was not open to any doubt. As indicated above Ghulam Hussain and Ashiq Hussain P.Ws.3/4 had injuries on them which fact further guaranteed their presence at the site. All the three eye-witnesses in the case were independent persons having no motive to falsely charge the accused. It was just ridiculous to say that the respondent had been substituted for the real assailant for such a ghastly assault on the complainant. Necessary ingredients of the offence under section 307, P.P.C. Were fully satisfied in this case as injury No,1 on the person of Karim Bahskh was eminently dangerous to life and could prove fatal in the ordinary course of nature.
6. Unfortunately, learned Trial Magistrate had not kept in mind gravity of the offence committed by the respondent in awarding him a sentence of three years which in the circumstances of the case was highly inadequate manifesting grave indiscretion rather dereliction of duty on the part of learned Magistrate which had caused miscarriage of justice. However, with all this feeling of chagrin over inadequacy of sentence of the respondent awarded to him by learned Magistrate it is not possible to enhance the sentence. Long delay of more than 13 years in the hearing and disposal of this case has rendered the reference futile which learned Additional Sessions Judge had made with a degree of earnestness on high considerations of justice and proper vindication of law. The respondent had undergone the term of imprisonment sometime in the year 1969. High Court is generally slow to interfere in cases where interference would involve recommitment of persons already discharged from jail after having undergone the full term of sentence. The circumstance may not be insuperable in every case but it will not be reasonable and a judicious exercise of powers to enhance the sentence after fourteen years of the occurrence. A few cases may be referred to in support of this view. In Mahabir Singh and others v. Emperor 47 Cr. L J 446, accused were tried for the offence of armed decoity during which three persons were killed. Notice was issued to some of the accused for enhancement and conversion of sentence of transportation for life into capital sentence. Despite a finding that the accused persons were proved to have committed murders of brutal nature and there was no justification for the learned trial Judge in passing any sentence short of maximum penalty of death the notice was discharged as the matter was decided in the High Court after one year and ten months of the incident. Learned Judge remarked that it is on account of this delay that we refrain from passing capital sentences. In Pehlwan and another v. State PLD 1966 Kar. 156, two persons were sentenced to transportation for life for the offence of murder under section 302, P.P.C. And also to a sentence of seven years rigorous imprisonment on the charge under section 201, P.P.C. For disposal of dead body of the deceased. Both accused appealed before the High Court and notice was also issued to them for enhancement of sentence. The appeal succeeded partly in that one of the two accused was acquitted of the charge on benefit of doubt. Notice was withdrawn against the remaining accused who had failed in appeal on the ground that more than 1-1/2 years had now elapsed since the day of occurrence. The last case which may be mentioned here is that of Sultan Muhammad and 2 others v. State 1969 P Cr. L J 781. In that case petition for enhancement of sentence of 15 days awarded to the accused for the offence of criminal trespass was turned down as the occurrence was more than six years old. The situation in the case is far worse.
7. It is also equally not possible to order payment of mandatory compensation by the respondent under section 544-A, Cr.P.C. For the reason that there was no evidence on record to show financial position and capacity of the respondent to pay compensation. In the result, reference by learned Additional Sessions Judge has become infructuous through long delay of 13 years in the disposal of the case.