' This is an application under section 439, Cr. P. C. Filed against the judgment cated 9-12-74 passed by the learned II Additional Sessions Judge Hyderabad, who upheld the conviction and sentence passed against the aipellant by the learned IV Extra Joint Civil Judge and First Class Magistrate Hyderabad. The applicant along with one Munir was convicted for offence under sections 326, 324 read with 34, P. P. C. By the trial Court and sentenced to R. I. For 2 years and a fine of Rs, ..;-00 or in default to suffer R. I. For 6 months more on the first count and R. I. For one year and a fine of Rs, 300 or in default suffer R. I. For 3 months on the second count. Both the sentences were ordered to run concurrently. Both the convicts filed appeal in the Sessions Court, Hyderabad. The appeal of Munir was accepted by the learned Additional Sessions and he was acquitted but the appeal of the present petitioner, Abdul Aziz, was dismissed and his sentence was maintained.
' The brief facts of the case are that on 8-10-73 at about 10 a.m. Mit. Rukhsana, the wife of the petitioner, along with her small daughter left the petitioner's house on Kali Road in his absence and went over to her father, Naseer Ahmed's house in Unit No. 7 Latifabad. At about 8 p.m. On the same day, the petitioner along with Munir went over to his father-in-law's Louse and asked his wife Rukhsana to accompany him to his house but she refused. Muhammad Naseer, bis wife Jamila and his other daughter Rehana were also present in the house. The petitioner and his wife exchanged hot words. The petitioner abused her and insisted that she shall go with him forthwith.
On this Baneer Ahmed, intervened and told the petitioner that she would return to his house on the next day morning. The petitioner got enraged and whipped out a knife. He caused injuries to Naseer who fell down. Seeing this Mst. Rukhsana, her mother Mst. Jamila and her sister Mst. Rehana raised cries but the petitioner caused knife injuries to them as well. Their cries attracted their neighbours -Bashir and Chand who also saw the incident and prevailed upon the petitioner and Munir to leave the house of Naseer. The witnesses informed them about the above facts. Mst.
Rukhsana lodged the first report at Latifabad Police Station on the same day at 10 p.m. Naseer was admitted in the hospital for the chest injury. After usual investigations the appellant and co- accused Munir were challanged before IV Extra Civil Judge and first Class Magistrate Hyderabad, who after usual trial convicted both the accused. The grounds of appeal are that the evinence of the prosecution witnesses was not reliable as they were interested persons, being closely related to each other. It is further alleged that the evidence of Mst. Rukhsana was contradictory to her first report and also to the evidence of her injured father, Naseer. It is also alleged that the learned Magistrate was not competent to try the case as the offence shown in the cballan was under sections 307, 326, and 324/34, P. P. C. And offence under section 307, P. P. C. Being exclusively tribal by the Court of Session, could not be tried by the Magistrate. No other law point has, however been raised in this application.
3. Both the lower Courts have come to a concurrent finding on facts of the case and consequent conviction of the netitioner. They have correctly appreciated the evidence on record. It is an injury case in which 3 persons were stabbed with a knife. They are inmates of the same house and equally related to the petitioner. The injured witnesses are corroborated by Basbir and Chand who are close neighbours. The injured persons are also corroborated by an independent witness like the Medical Officer. The incident occurred in the house of injured Naseer, where his wife and two daughters were present at 8 p.m. Mere relationship is no disqualification from being a competent witness. The injuries on them proves their presence at the time of occurrence. They are natural witnesses as they alone could be present in the house when the incident occurred at 8 p.m. They have been rightly believed by both the Courts below.
4. As regards the law point that the Magistrate should have committed the accused to the Court of Session as one of the sections mentioned In the challan was under section 307, P. P. C. Which was exclusively triabl by that Court. This contention has no legal force because the evidence o record showed that it was an offence under sections 326 and 321, P. P. C. Which were also mentioned in the challan. After recording the evidence o A the Medical Officer, the Magistrate came to the conclusion that the offence was under sections 326 and 321, P. P. C. Only which were triable by him.
He framed the charge accordingly and tried the case himself. It was witain his power to do so. The medical evidence shows that the injuries on the person of Muhammad Naseer were as under: "(1) An incised wound 1' x 1 deep on the left side of the chest at its middle.
(2) An incised wound 1' x 1 muscle deep on the right arm at a lower part laterly."
The injured remained in the hospital up to 17-10.75. Injury No. 1 was grievous. The doctor does not say that it was dangerous to the life of the injured or that it was likely to result in his death. There is also no evidence that the petitioner had intention to cause death or such bodily injury which was likely to cause death of Naseer. The stay of the injured in the hospital was only for 10 days.
5. Mst. Rehana had one incised wound 1' x 1 muscle deep and two abrasions on her loft lumber region. Her injuries were simple. Mat.
Rukbsaua had one incised wound j x skin deep over right lumber region and two abrasions on her shoulder and her left thumb respectively.
6. The learned Magistrate did not find any evidence to frame charge under section 307, P. P. C.
Against the accused and commit them to the Court of Session. The medical evidence clearly disclosed the offence was under section 326 and section 324, P. P. C. There is no evidence on record to show that the petitioner wanted to cause death of his father-in-law Newer. The grievous injury was no doubt on the vital part of his body but it was neither eminently dangerous nor of such a serious nature which was likely cause death. The charge was therefore, proper and it was not necessary for the Magistrate to have committed the accused to the Court of Session. No prejudice has been caused to the accused as the charge framed against him was for a lesser offence. He has on the contrary been benefited by such a charge as he has been saved of the severity of the Sessions trial. This legal point has therefore no significance and is of no avail to the petitioner.
Therefore, on merits of the case the Revision application of the petitioner must fail.
7. However, during the course of arguments the learned counsel for the petitioner stated that the parties have already compromised and the husband (petitioner) and wife (Rukhsana) are living peacefully in the same house, since last one year. He requested on human grounds that the settled family life of the parties may not be disturbed by sending the petitioner to Jail for undergoing the remaining portion of his sentence. He has produced the certified copy of the compromise filed by the parties in the Civil Court on 29-5-75. It may be pointed out that the petitioner had filed a civil Suit for Restitution of conjugal rights against his wife while his wife had filed a suit for divorce against him shortly after the above incident. Both the suits were compromised and the civil Court decreed the suits in terms of the compromise. It is urged that the petitioner has very much repented and is happily living with his wife. All the injured persons have compromised with him as they are all members of the same family. The learned counsel produced in Court the petitioner's wife Mst. Rukhsana and her father Muhammad Naseer. The petitioner was also present. They stated that they had compromised the matter long ago and were living happily with each other since May 1976. Taking into consideration the above said humanitarian ground I feel it will be cruel to disturb the married life of the parties particularly when they have settled the matter and are living in peace for the last 12 months. The incident occurred at the spur of the moment because the petitioner's wife refused to go back with him to his house. The parties are members of the same family and no useful purpose would be served to send the petitioner back to Jail to undergo the remaining portion of his sentence. The record shows that he has remained in Jail for 2 months. I think this sentence is enough to meet the ends of justice in such a case.
' I therefore, reduce the sentence of the petitioner to the period already undergone. With this modification the revision application is dismissed. Order accordingly.