' MUHAMMAD FARRUKH MAHMUD, J.---Through this appeal Ghulam Haider son of Pir Bakhsh,appellant, had called in question the judgment dated 10-1-2001 passed by Mr. Muhammad Riaz Chopra, Magistrate Section 30, Dera Ghazi Khan, whereby he convicted the appellant under section 334, P.P.C. (amended) and sentenced him to rigorous imprisonment for seven years as Ta'zir. He was also sentenced to pay Arsh equivalent to the value of Diyat that was Rs,2,40,000 then.
It was further ordered that in, failure of payment of Arsh the appellant was to remain in Jail.
However, the appellant was extended benefit of section 382-B, Cr.P.C.
2. As the occurrence took place on 22-8-1979 prior to the amendment in P.P.C. And as it was a hurt case, the learned counsel for the appellant was issued notice for payment of compensation as contemplated by section 544-A, Cr.P,C. The learned counsel for the appellant has accepted the notice.
3. The occurrence took place at about 2-1/2 p.m. On 21-8-1979 at Sadu More within the vicinity of Mouza Kot Daud within the territorial jurisdiction of Police Station Batal, District Dera Ghazi Khan. The matter was reported to the police by Atta Muhammad son of Bahadur Khan injured P.W.1 to Muhammad Aslam, S.I., when the latter was present on petrol duty near Gol Bagh Chowk.
Subsequently, a formal F.I.R. No,75 of 1979 was registered at Police Station Batal on 22-8-1979 for offences under sections 326/324/148/149, P.P.C., at 6-15 a.m. By Fazal Hussain, Head Constable/Muherrer. It was stated in the F.I.R. That the complainant had got a case registered against Elahi Bukhsh and others on 16-8-1979 at Police Station Batal for offences under sections 382/148/149, P.P.C., which 'was being investigated by the A.S.P. It was further stated that on 21-8- 1979 at about 2 or 2-30 p.m. The complainant was present at Sadu More, D.G.Khan Tonsa Road within the area of Police Station Batal, and was coming back to D.G. Khan, along with his son Muhammad Umar and Allah Wasaya. It is also stated in the F.I.R. That Haider son of Piran-appellant and Akhtar Iqbal armed with Churras, Zafar Iqbal and Shafiq armed with Sotas, Qadir Bakhsh and Allah Dewaya armed with Hatchets and Elahi Bakhsh empty-handed, who were hidden behind the bushes, assaulted upon the complainant party. Elahi Bakhsh exhorted Lalakara that the complainant should be' murdered as he had got a case registered against them. It is further stated that Haider-appellant attacked with his Churra and chopped off the nose of the complainant.
Akhtar Iqbal, Allah Dewaya and Qadir Bakhsh also caused injuries on different parts of the body of the complainant. When Muhammad Umar son of the complainant tried to rescue the complainant, Shafiq and Zafar Iqbal, who were armed with Sotas, and Akhtar Iqbal and Allah Dewaya who were armed- with Churras attacked upon Muhammad Umar and injured him. Allah Wasaya P.W. Was threatened by the accused that if he tried to interfere, he would also face the same fate. On alarm of the complainant and his son Muhammad Umar, P.Ws. Reached the place of occurrence and saw the incident. When they tried to apprehend the accused, they ran away. '
4. The motive as, given in the F.I.R. Was that Allah Wasaya, a servant of the complainant, filed a writ before, the High Court and got a, case registered against Elahi Bukhsh and 29 others including police officials. The afore-referred Elahi Bakhsh had a suspicion that Atta Muhammad was behind the registration of the said case.
5. After the registration of the case and its investigation Ghulam Haider-appellant along with other accused was sent up for trial, who were tried by Mr. Zia Ullah Khan Niazi, Senior Civil Judge/Magistrate Section 30, Dera Ghazi Khan. Elahi Bakhsh accused died during the pendency of the case. Akhtar Iqbal, Qadir 'Bakhsh and Allah Dewaya were convicted and sentenced to rigorous imprisonment for four years with a fine of Rs,10,000 each. Shafiq and Zafar Iqbal, co-accused, were acquitted. While Ghulam Haider, appellant, was declared absconder, vide judgment dated 28-6- 1997 passed by the trial Court.
6. The appellant was arrested on 1-11-2000. Supplementary Challan against him was submitted and he was tried by Mr. Muhammad Riaz Chopra, Magistrate Section 30, Dera Ghazi Khan.
7. The learned counsel for the appellant did not challenge the conviction of the appellant. However, he has pointed out that the appellant could not be convicted and sentenced under section 334, P.P.C., as amended by the Criminal Law Second Amendment Ordinance, 1990. Because the offence was committed in the year 1979, therefore, the provisions of P.P.C. Available at that time would be applicable in the case. He also prayed for reduction in the sentence, in the circumstances of the case.
8. The learned counsel appearing on behalf of the State and the learned counsel for the complainant have conceded to this legal proposition. The learned counsel for the complainant insists that exemplary and deterrent punishment should be awarded to the appellant, as he chopped off the nose of Atta Muhammad, complainant P.W.1.
9. I have heard the learned counsel for the parties and have also gone through the record of the case and the impugned judgment. It has been noticed that the learned counsel for the appellant has rightly not challenged the conviction of the appellant, as Atta Muhammad, whose nose was chopped off, complainant of the case, appeared as P.W.1 and stated regarding the occurrence.
Similarly Muhammad Umar son of the complainant, who also received injuries, appeared as P.W.2 and supported the prosecution case. Dr. Ghulam Farid appeared as P.W.6. He stated that he examined Atta' Muhammad and found 11 incised wounds on his person and 12th injury was on the upper chest. A perusal of the medico-legal report shows that nose of Atta Muhammad P.W. Was chopped off and his upper lip was also cut off. Ghulam Haider appellant, in a very brutal manner chopped off the nose and lip of the complainant-Atta Muhammad and the allegation against him has been proved beyond doubt, therefore, the learned counsel for the appellant has rightly not challenged the conviction awarded to the appellant.
10. The trial Court has erred in law by awarding conviction to the appellant under section 334, P.P.C.
(amended) and also wrongly imposed the sentence of Arsh, as the occurrence had taken place on 21-8-1979 when the P.P.C. Was not amended, therefore, I set aside the conviction and sentence (Tazir and Arsh) awarded to the appellant under section 334, P.P.C. And convict him under section 326, P.P.C., as it was promulgated at that time and applicable in the case, and sentence him to rigorous imprisonment for seven years with a fine of Rs,20,000. In default the appellant would undergo further rigorous imprisonment for six months. The appellant would also pay Rs,20,000 as compensation, which if realized would be paid to Atta Muhammad of his legal heirs. In default of payment thereof, the appellant would undergo further simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. Is extended to him.
11. With these modifications,, this appeal is dismissed.