' IFTIKHAR MUHAMMAD CHAUDHRY, J---This appeal by leave of the Court is directed against the judgment dated 16-4-1999 in Criminal Appeal No, 178 of 1998 passed by the High Court of Balochistan, Quetta.
2. Precisely stating facts of the case are that the respondent Khan Ali son of Faqir Ali arrested under section 336-C before the Additional Sessions Judge-V, Quetta on stated allegation in the F.I.R. That on the day of incident i.e, 23-10-1997 he caused hurt to appellant Mst. Shamaila former wife of the respondent as well as to his mother-in-law Mst. Sardaro during course whereof he inflicted knife blows upon his wife and cut her ears and nose thereby intentionally disfiguring her as there was matrimonial dispute between the respondent and the appellants. Similar type of attack was launched by the respondent on his mother-in-law. Learned trial Court on completion of trial convicted/sentenced the respondent as follows:-
(i) Under section 336 of Qisas and Diyat the accused is liable to pay Arsh i.e, compensation to the victim Mst. Shamaila and to suffer five years as Ta'zir (for disfigurement of Mst. Shamaila's face).
(ii) Under section 337(A) (i), Qisas and Diyat the accused is liable to pay Daman of Rs,10,000 to Mst.
Shamaila and to suffer for one year R.I. As Ta'zir (causing injuries to Mst. Shamaila)
(iii) Under section 337(A) (i) of Qisas and Diyat the accused is liable to pay Daman of Rs,10,000 to Mst. Sardaro and to suffer for one year R.I. As Ta'zir (causing injuries to Mst. Sardaro)
' The respondent preferred an appeal before the High Court which was disposed of in terms of para.7 of the impugned judgment which is reproduced hereinbelow:-- ' "In the light of what has been stated above, it can be concluded safely that prosecution has proved its case by producing cogent and concrete oral evidence duly supported by medical evidence and prosecution has also succeeded to prove the motive. As mentioned hereinabove a serious attempt was made to disfigure the face of Mst. Shamaila but it is to be noted that her nose or any part of her body was not severed/separated but on the contrary a deep cut/mark of heeled wound was apparent but it cannot be equated to that of Itlaf of an organ' as mentioned under section 337(Q) read with section 333, P.P.C., which makes it abundant clear that 'whoever dismembers, amputates, severs any limb or organ of the body of another person is said to cause Itlaf-i-Udw, and therefore, 'Arsh equivalent to the value of Diyat' cannot be imposed as there is no permanent impairing of the nose or ear. The conviction and sentence as awarded by the learned trial Court is accordingly modified and appellant is convicted under section 337-A(i), P.P.C. And sentenced to suffer R.I. For 2 years and shall be liable to pay an amount of Rs,25,000 as Daman and in case of default to suffer S.I. For 6 months for causing Shujjah-i-Khafifah to Mst. Shamaila. He is further convicted under section 337-A(i), P.P.C. And sentenced to suffer R.I. For 2 years and shall be liable to pay an amount of Rs,15,000 as Daman and in case of default to suffer S.I. For 6 months for causing Shujjah-i-Khafifah to Mst. Sardaro. Both the sentences shall run consecutively with benefit of section 382-B, Cr.P.C. In case amount of Daman as mentioned hereinabove is realized shall be paid to Mst. Shamaila and Mst. Sardaro. The appeal being devoid of merits is accordingly rejected subject to above modification."
3. Against the above judgment of the High Court leave to appeal was granted to determine what offences in facts and law have been committed by the convict-respondent and whether proper sentence has been passed or been imposed upon him.
4. The appellant appeared in person and stated that on account of injuries inflicted by the respondent her both ears and nose have been disfigured, therefore, the respondent was rightly convicted/sentenced under section 336, P.P.C. On the other hand learned counsel for the respondent contended that as on account of injuries received by Mst. Shamaila her ears and nose have not been disfigured in terms of section 335, P.P:C, therefore, learned High Court rightly converted the sentence awarded to respondent from section 336 to 337 (A)(i), P.P.C. Mr. Akhtar Zaman, learned Additional Advocate-General contended that according to the nature of injuries as there is a permanent cut on both ears and nose of appellant Mst. Shamaila, therefore, she is suffering from permanent disfigurement as such section 336 was fully attracted. Moreover, within the mischief of section 336 it is not necessary that the Itlaf-i-Salaheyat-i-Udw should take place permanently. According to him if there is prima facie disfigurement it also falls within the definition of Itlafi-Salaheyat-i-Udw. Mr. Ashraf Tanoli, learned Advocate-General, Balochistan referred to judgment in the case of Kedarmal v The Crown (AIR (37) 1950 Ajmer 13(1)) and stated that the injuries have permanent appearing on the ear and nose of the appellant, thus falls within the definition of permanent disfigurement of her face.
5. We have heard appellant in person as well as learned counsel for the respondent and State and have also gone through the medical certificate Exh.P/7-B issued by the Medical Officer for the examination of the appellant Mst. Shamaila, relevant contents, therefore, are reproduced hereinbelow:-- ' "I/W cut the left ear from upper to lower 2/3 region beleeding.
' I/W on bridge of nose 2 x 1/2 c.m. Deep.
' I/W cut the Rt. Ear lower 1/2 region bleeding ' I/W on left middle finger 2 x 1/2 c.m. Deep to muscle.
' Cut bilateral Ear + Nose."
Admittedly Mst. Shamaila had received injuries on her ears and nose which are of permanent nature. In view of contents of the medical certificate reproduced hereinabove the nature of injuries falls within the definition of Itlaf-i-Salaheyat-i-Udw, as it has been defined under section 335. In order to support such conclusion we may also refer to the judgment in the case of Kedamal (supra) wherein it was held that causing of an injury of grave nature with a sharp weapon like razor or knife tantamounts to permanent disfigurement. In this context definition of the word 'disfigurement' can also be referred with a view to understand its real meaning in true perspective of provisions of section 337, P.P.C. As per Corpus Juris Secundum, Vol. 27 disfigurment means 'the act of disfiguring' or 'the state of being disfigured also that which disfigures; a defacing; a blot; a blemish, blot, scar, or mutilation; that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, mishappen, or imperfect, or deforms in some manner; a change of external form to, or for, the worse. As per BBC English Dictionary a disfigurement is something, for example a scar that spoils a person's appearance. The Concise Oxford Dictionary defines disfigure as spoil beauty of, deform or deface. The above definition of the word disfigurement persuades us to hold that criminal act committed by the respondent falls within the Mischief of section 335, P.P.C. Because the ears and nose of appellant Mst. Shamaila have been disfigured permanently, therefore, he was rightly held guilty for, the penal offence falling within the mischief of section 336, P.P.C. As such in these circumstances, impugned judgment passed by High Court of Balochistan is not sustainable therefore, same is set aside.
6. When we were dictating order in the Court and we were going to conclude the judgment learned counsel for the respondent stated that appellant Mst. Shamaila had entered into a compromise with the convict Khan Ali in pursuance whereof She had agreed to receive an amount of Rs,1,50,000 towards ' Arsh' for causing disfigurment on her ears and nose, therefore, on accepting the compromise appeal be disposed of. In this behalf a written compromise duly signed by the learned counsel for the respondent and bearing thumb-impressions of the respondent Khan Ali and the appellant Mst. Shamaila was filed contents whereof are reproduced below:- "(1). That the respondent Khan Ali agreed to make payment, of Rs,1,50,000 to the appellants as Arsh which offer has been accepted by the appellants.
(2). That the amount of Arsh referred in the above para. Shall be paid in 3 years, in monthly instalments commencing w.e.f, 4-4-2002. However Rs,4,200 monthly instalment shall be deposited before the trial Court.
(3). That in case the respondent commits any default in payment of two consecutive instalments his warrants of arrest shall be issued and the entire amount of remaining balance amount shall be recovered."
' Mr. Ashraf Tanoli, learned Advocate-General submitted that as the parties have entered into a compromise out of the Court, therefore, instead of deciding the appeal on merits it may be disposed of in terms of, the compromise because separation has already been taken place between them and respondent had also compensated the appellant Mst. Shamaila in the family suit filed for the purpose of dissolution of marriage.
7. After going through the contents of the compromise and in the circumstances of the case we accept the compromise in the terms noted therein and direct that let the respondent Khan Ali pay an amount of Rs,1,50,000 as Arsh to Mst. Shamaila in equal thirty-six instalments commencing from April, 2002. The convict respondent shall deposit the instalments of Arsh' amount regularly on or before 10th of every succeeding month in the Court of Sessions Judge, Quetta, from where Mst.
Shamaila will be entitled to withdraw the same according to the rules. If the respondent Khan Ali failed to pay two consecutive instalments of 'Arsh' his warrants of arrest shall be issued and he will be kept in custody till the realization of total balance amount in accordance with law. As compromise between Mst. Shamaila, appellant and Khan Ali, respondent has been accepted, therefore, appeal on behalf of remaining appellants i.e, Hussain Ali and Mst. Sardaro is dismissed.
So far the sureties furnished by the respondent Khan Ali in pursuance of the leave granting order dated 8-8-2000 is concerned that shall remain intact till the final realization of total amount of Arsh as noted above.