ZAFAR PASHA CHAUDHRI, J.- This appeal is directed against the judgment dated 9.2.1994 passed by Magistrate Section 30, Mianwali, whereby he came to the conclusion that injury caused on the person of Arif Mehmood injured P.W. Was found to be Jaifah because the same had pierced to the body of the victim and holding that the appellant intended or had (he knowledge that the injury was invokely to cause death and in that event he would be guilty of murder, sentenced him to undergo R.I. For 7 years alongwith a fine of Rs. 10,000/- or in case of default thereof to undergo further sentence of six months. It was however, not specified either simple or rigorous imprisonment was meant. On recovery of the fine, 1/2 of the same was ordered to be paid to the victim.
2. Arif Mehmood Khan complainant has filed Cr. Revision No. 405/94 praying for enhancement of the sentence of the appellant. Both appeal its well as the revision petition will be disposed of by this single judgment.
3. Briefly the prosecution case as disclosed from the complaint made by Arif Mehmood vide FIR No. 185, dated 24.5.1992, with Police Station City Mianwali was that Arif Mehmood victim was sitting alongwith his brother Arif Mehmood complainant and one Umar Hayat near Haji Tent House at Ballo Khel Road. Mianwali at about 4.00 p.m. On 24.4.1994. All of a sudden, Pervaiz Khan appellant emerged there armed with a rifle. He raised Lalkara that he would teach him a lesson for not divorcing his wife. The victim tried to escape but the appellant fired a shot hitting him at the right side of his back. He fell down and on alarm raised by him, Arif Mehmood complainant (PW.1) and Umar Hayat (PW.4) were attracted to the place of occurrence. On seeing the witnesses coming for rescue, the appellant decamped from the place of occurrence hurling abuses and Lalkara. Motive was stated to be that relation between Arif Mehmood and his wife were strained, therefore, she was living with her parents. The appellant being brother of the wife of the appellant, had been demanding divorce of his sister. As the victim refused to accede to his demand, he was subjected to attack and injury was caused on his person.
4. On completion of the investigation, the appellant was found guilty and sent up to face trial in the Court of Magistrate Section 30, Mianwali.
5. Charge was framed against the appellant under section 324/337 PPC to which he pleaded not guilty and the prosecution in order to establish his guilt examined 8 witnesses. Atif Mehmood.
Complainant (PW.1) and Umar Hayat (PW.4) are the eye-witnesses whereas Arif Mehmood (PW.2) is injured PW. All these witnesses made their statements similar to the prosecution story narrated in FIR (Ex.PA) registered on the statement of Arif Mehmood complainant. Dr. Munawar Hussain Tabassum was examined as PW.3 who found the following injuries on the person of Arif Mehmood PW.2 :-
(1) A fire-arm wound of entry Vi cm x Vi cm over back of right upper chest 6 cm from right posterior axillary fold 12 cm from right clavicle and 11 cm from post mid line.
(2) A wound of exit 5 cm 3 cm over front of right upper chest running transversely parallel 'to middle 3rd of right clavicle, it is 5 cm from middle and 4 cm below right clavicle.
The injuries were caused with fire-arm and were kept under observation. On receipt of X-ray report injuries Nos. 1 and 2 were found to be covered by the definition of Jaifah. Ex.PE was attested by him to be attested copy of the Medico-Legal Report prepared by him. Injury No. 1 was an entry wound whereas injury No. 2 was that of its exit. PW.5 Ghulam Safeer is a witness of recovery of 303-bore rifle (P.3) alongwith to bullets (P.4/1-2) made at the instance of the appellant which ws seized and taken into possession vide memo. Ex.PD. PW-6 Muhammad Iqbal, ASI is a formal witness. PW7 Dr. Muhammad Khan is a Radiologist who submitted report Ex.PK and although there was some haziness on the lung but the same was not found to be injured. Safdar Hussain, SHO P.S. Kala Bagh was examined as PW.8 who after recording of the FIR, proceeded to the place of occurrence. After inspecting the site, he secured blood-stained mat (P.2) and took it into possession vide memo.
Ex.PC. He arrested the appellant on 3.5.1992, and on 5.5.1992, recovered rifle (P.3) and to bullets (P.4/1-2) at the pointation of the appellant from his residential room which were taken into possession vide memo. Ex.PD. The appellant in his statement under section 342 Cr.P.C, denied the allegations against him and also disowned the recovery and stated that he was innocent and had been implicated on account of enmity between the parties. He also produced in his defence copy of a challan in case FIR No. 451, dated 20.11.1989 registered at Police Station City Mianwali as D.1 and copy of FIR No. 114, dated 13.10.1989 registered at P.S. Musa Khel, Mianwali as D.3. On conclusion of the trial, the learned Trial Magistrate held the appellant guilty of causing injuries on the person of Arif Mehmood and accordingly convicted and sentenced him, as indicated above. Hence this appeal.
6. The prosecution case mainly hinges on the testimony of Arif Mehmood complainant (P.W.1), Arif Mehmood injured/PW.2 and Umar Hayat (PW.4) corroborated by medical evidence as well as motive, besides recoveries. Learned counsel appearing on behalf of the appellant instead of challenging the conviction of the appellant and pleading his innocence, argued that injury caused on the person of Arif Mehmood P.W. Is not covered by the definition of Jaifah as contained in section 337-C PPC. According to him the injury is Ghayr Jaifah covered by section 337-E (1) PPC. In support of his argument the learned counsel has referred to the definition of Jaifah as contained in section 337-C PPC which is reproduced:- "Whoever causes jurh in which the injury extends to the body cavity of the trunk, is said to cause jaifah."
Under section 337-E, any jurh which does not amount to jifah is termed as Ghayr jaifah. To examine the nature of the injury, its description as contained in the Medico-Legal Report Ex.PE (reproduced supra) is to be considered. Injury No. 1 is a wound of entry which has a corresponding exit wound of exit. Although the doctor has declared the injury as Jaifah but no vital organ located in the body cavity has been injured. The injury was caused at the back near the right shoulder which made its exit in the front without causing any damage to any organ contained in the body cavity. To treat any injury as Jaifah, the injury must extend to the body cavity of the trunk. The word "extend to the body cavity" is of significance. Injury on any portion of the body located on upper part of the trunk as in the instant case the injury is near the right shoulder which penetrated through the muscles or flesh and made its exit without damaging any of the organs in the cavity, cannot be treated as Jaifah because according to the definition, it does not extend to the body cavity.
7. The word "body cavity of the trunk" has neither been specified nor has been defined in the Pakistan Penal Code. For that purpose, reference has to be made to the Medical Dictionary, medical books on the subject of anatomy, medical jurisprudence and pronouncements of authoritative description of "body cavity". Body cavity as defined in Dorland's Illustrated Medical Dictionary, 26th Edition at page 232, is a hollow place or space, or a potential space, within the body or in one of its organs. Furthermore, body cavity has been defined as a visceral cavity such as the thoracic, abdominal or pelvic cavity. Considering these definitions, body cavity means a portion of the body which contains viscera. It is a hallow place and contains vital organs. The cavity under discussion would mean the chest cavity which contains lungs, heart, liver etc., i.e. Upper part of the body above the diaphragm. Supplementing these definitions with that of the meaning assigned to "body cavity" in ordinary parlays, reference is made to Chambers English Dictionary page 156 wherein the "body cavity" has been defined as the coelom or cavity in which the viscera of the higher animals lie. Taking up the meaning and the definition assigned both in ordinary and medical dictionaries, the "body cavity" means a part of the body which contains viscera or vital organs of the body, as noted above. For further precision, reference to Gray's Anatomy, Thirty Third Edition, Chapter-Development of the body cavities, page 219 is also helpful. Perusal of this chapter reveals that body cavity means that part of the body which contains vital organs over or below diaphragm. The definitions, therefore, contained in the medical dictionary as well as Chambers English Dictionary are not in conflict with the description of the cavity as contained in its authentic text book of anatomy.
8. To seek further guidance reference to the pronouncements by the Islamic Scholars would be beneficial. In this regard Shariat Criminal Laws in Urdu title {{URUD TEXT MISSING}} which is Urdu translation of {{URUD TEXT MISSING}} edited and written by Maulana Salamat Ali Khan Mr.' Amir Ahmad Sharif, Vakil Hyderabad Dacca, at page 343 Jaifah has been defined as follows:- {{URUD TEXT MISSING}} Another book titled as by Idara Tehqiqat-i-Islami, Islamabad, in its 2nd edition at page 159, a Hadith from Holy Prophet (PBUH) cited by Hazrat Abu Bakar (RZA) has been quoted, which is reproduced:- {{URUD TEXT MISSING}} it means that any injury which is through and through can be treated as Jaifah if it penetrates through abdomen. If it does not pass through chest or abdomen and merely penetrates through flesh or muscles of the body on the upper part of the chest cavity, cannot be treated as Jaifah. A useful guidance has been cited from the book titled as {{URUD TEXT MISSING}} 2nd Edition, by Dr. Tanzil-ur-Rehman, which is of immense importance. At page 339 Jaifah has ben defined as: {{URUD TEXT MISSING}} Benefitted by the authentic definitions contained in the dictionaries, medical text books and pronouncements by eminent Scholars, it may be concluded that to treat an injury as Jaifah it must penetrate into the cavity of the body and if it does not penetrate into cavity of the body the same cannot be treated as Jaifah and would be punishable as Ghayar Jaifah depending on the nature of the damage caused by it and under what sub-clause of Ghayar Jaifah the same is covered.
Apart from the definitions or description regarding Jaifah the rationale, behind the definition also cannot be ignored. Obviously Jaifah is that injury which is more grave and serious. If an injury does not cause any damage to any organ located inside the cavity and merely passes through flesh or muscles, cannot be treated or considered as Jaifah. The cavity does not denote only an area starting from upper part of the shoulder upto diaphragm and then from diaphragm to lower part of pelvis but it in fact means a part of the body under which vital organs are located and if an injury penetrates into the body cavity and then enters that part of the body wherein vital organs are located, only then that can be treated as Jaifah and punishment can be awarded accordingly.
9. Considering all the facts and circumstances of the case in had, admittedly the injury was caused at the back of chest which passed through the muscles and flesh and made its exit. It did not extend to body where any vital organ; lay or caused any damage to it. If the injury does not extend to that part, the same cannot be treated as Jaifah.
10. In view of the above discussion, the injury inflicted on the person of Arif Mehmood PW is covered by the definition of Ghayr Jaifah Mutalahimah under section 337-E (1) (c). The same is punishable under section 337-F (iii) to Daman and may also be punished with imprisonment upto three years' as Tazir. In this view of the matter, the conviction and sentence Of the appellant awarded by the Trial Magistrate is hereby set aside and instead he is convicted under section 337- F(iii) PPC. As the injury has been caused by a bullet fired by rifle which penetrated through and through and caused an exit wound of the denomination of 5 cm x 3cm, the appellant is sentenced to 3 years' R.1, as Tazir with Daman amounting to Rs. 10,000/- or in case of default of payment of Daman, he will be dealt in the manner as prescribed by section 337-Y (ii) PPC. Since sentence of years' R.I. And imposition Daman for an amount of Rs. 10,000/- is not a severer punishment and learned counsel for the appellant had in fact conceded to the same therefore, no notice is deemed necessary to be given to the appellant. The appeal is partly allowed in terms of the alteration in the conviction and sentence of the appellant as indicated above Cr. Revision No. 405/94 fails and is hereby dismissed.