Petitioner is seeking post-arrest bail in case FIR No 2 dated 14.1.2008 under Sections 324/337-D/337- F(ii)/148/149 PPC registered at Police Station Saddar, Layyah.
2. Prosecution case, in brief, is that on 14.1,2008 at about 4.30 p.m. complainant alongwith his brother-in-law Mureed Hussain was going back to his house on a motorcycle. Near Village Wara Gishkori, they were intercepted by the petitioner and his co-accused armed with deadly weapons.
The petitioner raised lalkara to teach them a lesson for getting stay order in connection with construction of a road. The petitioner and his co-accused Akhtar Hussain, Manawar Hussain and Saadat Raza inflicted chhuri blows to Mureed Hussain hitting on his left buttock, left flank and left thigh. Complainant stepped forward to rescue the injured upon which petitioner inflicted a chhuri blow on his buttock. Co-accused Ehsan Ullah raised lalkara and aimed rifle to fire at him, but latter's brother Muhammad Ashraf fell on his feet. The accused decamped from the spot alongwith their weapons on the arrival of some other persons of the village.
3. Learned counsel for the petitioner contends that co-accused Munawar Hussain has been declared innocent during investigation and got discharged by the police, while remaining accused have been allowed bail by the learned. Judicial Magistrate. Injuries attributed to the petitioner are of minor nature. Injury No, 5 of Mureed Hussain injured, which was initially declared as jurh jaifah by the doctor, has been declared jurh ghayr-jaifah mutulahimah by District Officer (Health) vide his inquiry report dated 14.5.2008 and in view of the nature of injuries of the complainant and Mureed Hussain, offences under Sections 324 and 337-D PPC are not attracted. At the most, offences under Sections 337F(ii) and 337-F(iii) are made out which can do not fall within the prohibitory clause of Section 497 Cr.P.C. During the occurrence petitioner also sustained injuries which have been suppressed by the complainant in the FIR, therefore, case of the petitioner requires further inquiry on this ground also.
4. Conversely, learned DPG for the State and learned counsel for the complainant have vehemently opposed the bail application. According to learned counsel, injury on the left flank of Mureed Hussain has been illegally declared as jurh ghayr-jaifah mutulahimah as District Officer (Health) or Executive District Officer (Health) were not competent to overrule the opinion of the Medical Officer who examined the injured. Inquiry report submitted by District Officer (Health) is based on mala fide and has been given under the influence of a relative of the petitioner, namely, Dr. Mukhtiar Shah.
5. As per FIR, the petitioner is attributed three injuries in all. He inflicted two injuries to Mureed Hussain on his left buttock and left flank, while one injury was inflicted to the complainant on his left buttock. Injury on the left buttock of Mureed Hussain has been declared as Jurh ghayr-jiafah badiah falling under Section 337-F(ii) PPC while injury of complainant has been declared as Jurh ghayr-jaifah mutulahimah falling under Section 337-F(iii) PPC. As regards injury on left flank of Mureed Hussain injured, it was an incised wound 3 cm x 1 cm going deep on the left lumber region, 8 cm left to midline. It was declared by the Medical Officer as Jurh jaifah falling under Section 337D PPC. However, on a complaint against Dr. Aziz Ahmad Nadeem, who examined the injured, that he had exaggerated the nature of injuries, an inquiry was conducted by District Officer Health, Layyah under the orders of Executive District Officer Health, Layyah and submitted hie report that injury as per available record could not be declared Jurh jaifah as it had not penetrated the peritoneum. It was further recorded in his report by the inquiry officer that the statement of Dr. Aziz Ahmed Nadeem recorded during the inquiry proceedings shows that the errors pointed out in the inquiry report were committed by the Medical Officer under the intense pressure of Zila. Nazim, Layyah with three Advocates, who had not allowed him to consult with the senior colleagues even on the mobile telephone. In his letter Bearing No, 61/5039/EDO (H) dated 16.06.2008, sent by Execute District Officer Health to District Police Officer, Layyah also, it has been recorded that the injury under reference was not found penetrating into the trunk/abdominal cavity vide its record of Surgical Operation Theater of DHQ Hospital, Layyah given at Serial No, 29 dated 14.01.2008 where the wound was drained and closed. It was further recorded in the letter that record does not show anything supportive of penetration of injury in abdominal cavity. So the injury is Ghayr Jaifa Badi'aah. In this respect, reference may be made to a judgment of this Court rendered in "Dhulah Khan versus The State" (2001 P. Cr. L.J 998) wherein it has been held that to attract the provision of Section 337-D PPC, it is not necessary that vital organs like heart, lungs or liver are caused damage and to attract the provision, it is enough if injury penetrates into the body cavity and then enters that part of the body wherein vital organs are located and such an injury would be treated as Jaifah. In the present case, there is nothing on record to show that the injury on left lumber region of Mureed Hussain penetrated into that part of the body cavity wherein vital organs are located.
Therefore, this injury cannot be treated as Jurh Jaifah. Thus, prima facie offences under. Sections 337-F(ii) and (iii) PPC are attracted against the petitioner which do not fall within the prohibitory clause of Section 497 Cr.P.C.
6. Apart from the above, copy of the MLR of petitioner placed on the file shows that he also sustained as many as five injuries on different parts of his body. He was got examined by the 'police on 17.01.2008 under the orders of learned Judicial Magistrate and as per opinion of the doctor probable duration of the injuries was about three days, meaning thereby that he sustained injuries on the day of occurrence. However, the complainant has not mentioned all these injuries in FIR and have completely suppressed the same. It has been held in number of judgments by the apex Court as well as this Court that if the complainant party suppresses its own role in the occurrence, the case of accused becomes one of further inquiry. Thus, the petitioner is entitled to the concession of bail on this ground also. Hence, the bail petition is allowed and petitioner is ordered to be released on bail subject to furnishing bail bonds in the sum of Rs, 50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of learned trial Court.