' MUHAMMAD ANWAARUL HAQ, J.---Through this petition, Muhammad Qasim and Muhammad Asif seek pre-arrest bail in case F.I.R. No,134, dated 8-3-2014, registered' under sections 354, 452, 337A(ii), 337A(i), 337(i) and 148/149, P.P.C. At Police Station Sharaqpur District Sheikhupura.
2. Heard. Record perused.
3. Allegation against the petitioners Muhammad Qasim alias Kashif and Muhammad Asif is that they armed with pistol and "Sota" respectively entered into the house of complainant Mst. Shahnaz Bibi where petitioner Muhammad Asif inflicted a blow with "Sota" on the head of Mst. Shahnaz Bibi whereas petitioner Muhammad Qasim alias Kashif had snatched her gold ear-ring.
4. At the outset, learned law officer while referring case Diary No,23, dated 13-6-2014 states that section 452, P.P.C. Has been deleted during the investigation and snatching of ear-ring of Mst.
Shahnaz Bibi has not been proved, therefore, no such offence has been added in this case. The only non-bailable offence as per police record against the petitioners is section 337-A(ii), P.P.C., that is a bone deep lacerated wound at the back of head of Mst. Shahnaz Bibi.
5. It has been noticed that after promulgation of Criminal Law 2nd Amendment Ordinance, 1990, the concept of simple or grievous injury has been changed and a new definition of hurt has been introduced in section 332, P.P.C. In the following words:-- "332. Hurt
(1) Whoever causes pain, harm, disease, infirmity or injury to any person or impairs, disables or dismembers any organ of the body or part thereof of any person without causing his death, is said to cause hurt.
(2) The following are the kinds of hurt: - a) Itlaf-i-udw; b) Itlaf-i-salahiyyat-i-udw; c) Shajjah; d) Jurh; and e) All kinds of other hurts.
' Explanation.--Disfigure means disfigurement of face or disfigurement or dismemberment of any organ or any part of the organ of the human body which impairs or injures or corrodes or deforms the symmetry or appearance of a person."
' Shajjah mentioned in section 332(2)(c), P.P.C. Has further been defined in section 337, P.P.C. In the following words:- "337. Shajjah (i) Whoever causes, on the head or face of any person, any hurt which does not amount to Itlaf-i-udw or Itlaf-isalahiyyat-i-udw, is said to cause Shajjah.
(2) The following are the kinds of Shajjah, namely: - a) Shajjah-i-Khafifah; b) Shajjah-i-mudihah; c) Shajjah-i-hashimah; d) Shajjah-i-munaqillah; e) Shajjah-i-ammah; f) Shajjah-i- damighah.
(3) Whoever causes Shajjah-
(i) without exposing bone of the victim, is said to cause Shajjah-ikhafifah;
(ii) by exposing any bone of the victim without dislocating it, is said to cause Shaiiah-i-mudihah:
(iii) by fracturing the bone of the victim and without dislocating it, is said to cause Shajjah-i- hashimah;
(iv) by causing fracture of the bone of the victim and thereby the bone is dislocated, is said to cause Shajjah-i-munaqillah;
(v) by causing fracture of the skull of the victim so that the wound touches the membrance of the brain, is said to cause Shajjah-i-ammah; and
(vi) by causing fracture of the skull of the victim and the wound ruptures the membrane of the brain is said to cause Shajjah-i-damighah.
' Shajjah-i-Khafifah as per definition in section 337, P.P.C., is an injury caused to the victim without exposing his bone whereas Shajjah-imudihah is an injury where bone of the victim is exposed without causing fracture, therefore, these are two distinct kinds of Shujjah under section 337, P.P.C.
And its punishment is provided under sections 337-A(i) and 337-A(ii), P.P.C. respectively. A very significant difference in two clauses under section 337-A (i) and section 337-A(ii), P.P.C. Is that offence "Shajjah-i-Khafifah" under section 337-A(i) P.P.C. As per Schedule 2 of the Cr.P.C. Is bailable and non-cognizable whereas offence "Shajjah-i-mudihah" under section. 337-A(ii), P.P.C. Is non- bailable and cognizable offence.
6. The Medical Officers while examining the victims, have themselves introduced a new term i,e, "bone deep" injury, that term does not figure in Pakistan Penal Code and police in routine in all the injuries declared by the doctors bone deep, stamps the same an injury under section 337-A(ii), P.P.C. And the offence against the accused becomes non-bailable and cognizable just because of heedlessness of the doctor concerned.
' Keeping in view numerous cases of mis-description of injury under section 337, P.P.C., in another case I felt it appropriate to call Surgeon Medico-Legal, Punjab, Lahore to assist this Court. On Court's call, Surgeon Medico-Legal Punjab, keeping in view the importance of the query has rightly opted to call a meeting of Leading Consultants of the Punjab to- discuss this matter in depth. The Surgeon Medico-Legal Punjab through Letter No,3343/SML, dated 4-7-2013, addressed to Rai Muhammad Khan, Research Officer of this Court, responded the query in the following words:- "Every bone deep injury where bone is not exposed, does not attract. Shajjah-i-mudihah and only bone exposed injury attracts Shajjah-i-mudihah."
' The Surgeon Medico-Legal, Punjab, Lahore for issuance of a proper Notification in this regard has also forwarded a request to the competent authority vide Office letter No,3324-26/SML, dated 1-7- 2013 in the following words:- "The Secretary, Government of the Punjab, Health Department, Lahore.
' Subject:--RECTIFICATION OF OLD TERMINOLOGIES OF QISAS AND DIYAT ORDINANCE.
' In the light of directions given by Mr. Justice Anwaarul Haq, honourable Judge, Lahore High Court, Lahore, in a meeting with the under-signed and Dr. Tajammal Hussain, Head of Forensic Department, Allama Iqbal Medical College, Lahore, in his Chamber on 27-6-2013 at 4-00 P.M. The meeting of Heads of Forensic Department of the Medical Colleges in the Punjab (list attached) was held in this office on 1-7-2013 at 10-00 A.M. Vide this office letter No, 3284-97/SM., dated 28-6-2013.
' The recommendations made thereby are being attached herewith for immediate notification by your good office.
(Sd.)
SURGEON MEDICOLEGAL PUNJAB, LAHORE."
' No, 3324-26 /SML, Dated Lahore, the 1/7/2013 (Office to annex all the correspondence referred above with the file of this criminal miscellaneous for ready reference for all.)
' The recommendations attached to the above referred letter of Dr. Umar Farooq Khan, Surgeon Medico Legal Punjab, read as follows: - 1... While writing the description of the injury, it should be mentioned whether bone is exposed or bone is not exposed. The term "Bone Deep" must not be used.
' Manner of infliction in cases of fracture of nasal bone, carpal and metacarpal bone, tarsal and metatarsal bone and ulna bone, should be carefully commented in the light of history, circumstantial evidence and through examination of associated injuries.
' All the injuries in MLC must be marked in skiagram and properly labelled. Any MLC in which skiagram is left blank, will be considered as incomplete.
' Nature of injuries should be given in accordance with Qisas and Diyat Ordinance, stating the name of the injury as described in the Qisas and Diyat Ordinance, e.g. Shajjah, Jurh, Jaifa etc. Number of the section should not be written except section 337-L(i) and section 337-L(ii). No terminology in the MLC must be used which alien to the Qisas and Diyat Ordinance and manual for instructions for conduction of medico-legal and postmortem work.
' In case of any complaint about MLC, the parties should contact Medical Superintendent of the concerned Hospital and in case of Rural Health Centers, the EDO (Health) of the respective district, The phone number and E-Mail of Medical Superintendent or EDO (Health), as the case may be, must be displayed at a prominent place in the office of the Medical Officer. Failure to do so, the EDO (Health) or M.S. Will be held responsible.
6. No time frame can be given for not performing the medico-legal examination of a sexual offence case.
7. It is unanimously decided that as already notified, and it is again emphasized that no column of Medico-legal Report should be left blank. If not applicable, the particular column should be crossed.
8. a) As already notified, opinion should be given in simple language clearly stating the legal nature of the offence, the duration, causative agent and the manner of the causation. b) The notified pro forma of the MLC also contains a column about possibility of fabrication. (Yes/No), as already mentioned in Point No,7 supra, no column should be left blank. This applies to this column also.
In view of all above, I am of the considered view that injuries not resulting into exposure of bone, cannot be considered Shajjah-i-mudihah falling under Section 337-A(ii), P.P.C. And all the injuries described as bone deep, prima facie, fall within the purview of Shajjah-i-Khafifah under section 337-A(i), P.P.C. The Surgeon Medico-Legal Punjab, has already issued a direction to all concerned not to describe any injury as bone deep and describe the injury stricto sensu within the meaning of Shajjah-i-Khafifah under Section 337-A(i), P.P.C. Or Shajjah-i-mudihah under section 337-A(ii), P.P.C., as the case may be.
7. Now adverting to the case in hand, bone deep injury attributed to the petitioner on the person of injured Mst. Shehnaz Bibi cannot be termed falling under section 337- A(ii), P.P.C. And that clearly falls within the purview of section 337-A(i), P.P.C., bailable and non-cognizable offence. Section 452, P.P.C. Has already been deleted during the investigation. In the circumstances. Mentioned above, I do not find any justifiable reason to send the petitioners behind the bars, therefore, ad interim pre- arrest bail already granted to them on 23-5-2014 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs,50,000/- (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned trial court/Area Magistrate within 15 days.
8. Before parting with this order, I feel it necessary to appreciate efforts of Research Center of this Court and of the Surgeon Medico Legal, Punjab, Lahore, who have organized a meeting of 14 senior most Forensic Experts from all medical colleges of the Punjab to clarify confusion in description of injuries by the Medical Officers and has issued valuable instructions in public interest.