Rashid (petitioner) seeks pre-arrest bail in case FIR No.779/2023 dated 13.10.2023 registered under Sections 337-D, 337-A(i),337-F(i),337-L(2),354 & 34 of Pakistan Penal Code, 1860 (PPC) at Police Station Kallar Syedan, District Rawalpindi.
2. Succinctly, the case of prosecution as can be culled from the First Information Report (FIR) is to the effect that in pursuance of a land dispute Muhammad Sharif had obtained an injunctive order from the civil court against Arshad, Azhar and Abid; that on 10.09.2023 at about 1:30 p.m.
Muhammad Ashfaq went to have a look of the land but noticed the presence of Arshad etc. along with construction material; that after acquiring knowledge about the presence of accused on the land and their design of raising construction, Muhammad Akhlaq (complainant) immediately informed Rescue-15; that Muhammad Sharif tried to refrain Arshad etc. from raising construction but they got infuriated; that Arshad and Abid inflicted injuries on the head and right leg through a spade and pickaxe; that Rashid further inflicted a spade blow on the right middle finger of the complainant and besides that also pelted a stone which hit on his chest; that Muhammad Basharat and Abid assaulted Nasreen and Shazia who endured traumas on the left bicep and left foot respectively; that upon noticing the commotion of the victims residents of the vicinity attracted to the spot, prompting the assailants to decamp therefrom.
3. It is argued by learned counsel that the petitioner is innocent in the case and has been falsely implicated with mala fide intention; that a petty incident was turned into an occurrence of greater magnitude through a fictitious medical report; that the offence under Section 337-D PPC though is not attracted to the traumas statedly suffered by the victims but still is applied in the case and that since no non-bailable offence is made out, thus the petitioner is entitled to pre-arrest bail.
4. On the other hand, dismissal of the instant petition is urged on the grounds that the information of crime was promptly imparted to police; that the petitioner is specifically named in the FIR with the allegation of having inflicted injuries to Muhammad Sharif, Muhammad Akhlaq and Shazia; that there is no mala fide of the complainant behind the implication of petitioner in the case and weapon of offence is yet to be recovered from him.
5. Arguments heard. Record perused.
6. It divulges from record that the petitioner stands implicated in the case with the allegation of having been a member of the group who firstly tried to invade the land of Muhammad Ashfaq and later resorted to physical violence during which Muhammad Sharif, Muhammad Akhlaq, Shazia and Nasreen endured blunt traumas. So far as Rashid (petitioner) is concerned, he is assigned the allegation of inflicting injuries on the chest and left thigh of Muhammad Akhlaq (complainant) through spade blow and pelting of stones, besides that Muhammad Rashid is further saddled with the accusation of causing an injury on the left bicep of Shazia through spade in his hand.
7. In the wake of prosecution allegations, it is observed that the injured, namely Nasreen Bibi, Shazia, Muhammad Sharif and Muhammad Akhlaq were medically examined on 10.09.2023 and according to the opinion of doctor though they were in receipt of multiple injuries but except one rest were giving rise to bailable offences. One of the traumas which Muhammad Sharif endured on his right scapula having swelling around it was opined by the doctor as Jaifah, attracting the mischief of Section 337-D PPC. I have carefully perused the injury which admittedly was on outer surface and had made no penetration in the body of the victim, thus the learned law officer and counsel for complainant were confronted with the question as to how it attracts the offence under Section 337-D PPC. In order to address the anomaly, the medical officer Dr.Mashad Nawaz was summoned in the Court and he in pursuance of a query candidly conceded that the questioned injury was on the outer surface but came forward with the stance that since some days after the incident the victim developed swelling on the lungs, thus the nature of trauma was opined to be Jaifah. Before inching any further, I deem it appropriate to have a look upon some of the provisions of Chapter-XVI of PPC titled as OF OFFENCES AFFECTING THE HUMAN BODY, having relevancy to the proposition. Section 332 PPC defines hurt and its various kinds which are as under:-
(i) Itlaf-i-udw,
(ii) Itlaf-i-Salahiyyat-i-udw,
(iii) Shajjah,
(iv) Jurh &
(v) All kinds of other hurts.
The kinds of hurt, so mentioned above, are further defined in Sections 333, 335, 337, 337-B & 337-C PPC. Since the case in hand pertains to the kind of hurt defined as Jurh, thus no provision other than Section 337-C PPC is of pivotal importance and the same is reproduced below:- "Whoever causes Jurh in which the injury extends to the body cavity of trunk is said to cause Jaifah."
The punishment of Jaifah is given in Section 337-D PPC as Arsh of 1/3rd of the Diyat along with imprisonment of either description which may extend to 10-years as Ta'zir. The plain reading of Section 337-C PPC leaves no room for discussion that Jaifah is a kind of injury which extends to the body cavity of the trunk of the victim. The 'body cavity' is not defined in PPC and due to foregoing reason, the dictionary meaning of this expression is to be seen in accordance with principles of interpretation of statute reiterated in various judgments by the Supreme Court of Pakistan which include case reported as Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jahan Shah (PLD 2016 Supreme Court 534), the relevant portion of which is as under:- "When a word has not been defined in the statute, the ordinary dictionary was to be looked at."
In different dictionaries, various meanings are assigned to the term 'body cavity'. In the Blakiston's Gould Medical Dictionary Fourth Edition, the term 'body cavity' is defined in the following manner:- "The peritoneal, pleural, and pericardial cavities, and that of the tunica vaginal testis."
In Chambers English Dictionary 7th Edition, following meanings are assigned to 'body cavity':- "The coelom, or cavity in which the viscera of the higher animals lie."
In consonance with the definitions so mentioned above, it can inexorably be concluded that the term 'body cavity' in reference to human anatomy can only be used for inner part of thorax and abdomen. The term "Jaifah" was introduced through Criminal Law (Second Amendment)
Ordinance, 1990 which attained eternity by Act No.II of 1997 whereby Chapter XVI of PPC pertaining to offences affecting the human body was revamped. The amendment was primarily aimed at bringing in conformity the Chapter XVI with the injunctions of Islam, as is evident from its preamble.
In this context, it appears to be in fitness of things to have a look as to how Jaifah is defined by Islamic jurisprudence. In a research paper authored by Istraj Khan of Department of Islamic Studies, Abdul Wali Khan University Mardan, Jaifah was defined in following manner:- Similarly, Molana Salamat Ali Khan in defined Jaifah as under: Likewise, Dr.Tanzil-ur-Rehman in his book Islami Qawaneen, Hudood, Qisas, Diyat and Tazirat) (defined Jaifah as under:- The Jaifah was also defined in the cases reported as Muhammad Jaffar v. The State and another (2020 MLD 679), Muhammad Ahmad v. The State (2005 YLR 661) and Pervaiz Khan v. The State (PLD 1998 Lahore 84).
It can also be gathered from the views of Islamic scholars and the case law mentioned above that injury in the body cavity for attracting the offence under Section 337-D PPC must be direct consequence of the trauma inflicted by the perpetrator and should not be its fall out and by product.
8. After having formed view that the injury on the shoulder of Muhammad Sharif (injured) does not come within the purview of Section 337-D PPC, I am compelled to observe here that due to the opinion of medical officer, which was patently fallacious, co-accused Abid remained incarcerated for about 50-days and was granted post-arrest bail by this Court vide order dated 04.12.2023 passed in Crl.Misc.No.3237-B of 2023. I cannot resist to mention here that a medical officer is generally considered as a witness of truth in the scheme of things upon which the system of criminal administration of justice is structured. An erroneous opinion given by the doctor based either upon his incompetency or some sinister design can bring disastrous consequences for the litigant in a criminal case. The medical officers must realize that by tendering opinion in criminal cases, they contribute in safe administration of justice which gets polluted by incorrect reports. The ordeal and agony which the petitioner as well as co-accused faced in the case due to incorrect opinion of the medical officer cannot be compensated by words and though calls for an action against the doctor but still lenient view is being taken against him. Nevertheless, it is expected from the Secretary (Health) Government of the Punjab that he will attend the situation by sensitizing the medical officer about the importance of their opinion and the consequences it has in criminal cases.
9. Reverting back to the facts of the case, the shoulder injury of Muhammad Sharif which though does not attract Section 337 D PPC even is not specifically assigned to any accused and besides that found no place in FIR. Rest of the penal provisions applied in the FIR are bailable as is evident from the Second Schedule of Criminal Procedure Code, 1898. It goes without saying that in bailable offences there is no need for the Courts to look for mala fide behind the registration of case in order to extend the concession of pre-arrest bail. In such like cases, pre-arrest bail is to be granted to the accused as a matter of right as can be culled from cases reported as Muhammad Ayub v.
Muhammad Yaqub and another (PLD 1966 Supreme Court 1003), Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court 34).
10. For the foregoing reasons, the instant petition is accepted and ad interim pre-arrest bail already granted to the petitioner in terms of order of this Court dated 24.11.2023 is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.100,000/- (rupees one lac) with one surety in the like amount to the satisfaction of the learned trial court.