' The petitioner Dulah Khan is seeking post-arrest bail in case F.I.R. No,211, dated 1-9-2000 registered at Police Station Saddar, Hassanabdal for the offence under sections 337-A(ii) and 337-D, P.P.C. At the instance of complainant Abdus Salam for an occurrence which is alleged to have taken place on the same day at 9-00 a.m. In which he sustained a sharp-edged injury on, the back of the chest with knife (2.5 c.m. x .1/2 c.m. x no resistance up to 4.5 c.m.). The complainant also suffered an injury on the back of the head which is simple in nature. Both these injuries are attributed to the petitioner who was allegedly armed with a knife and a hockey and is alleged to have caused these injuries to the complainant in the presence of the witnesses due to previous enmity of litigation.
2. The petitioner was arrested on 4-9-2000. His application for the grant of post-arrest bail was dismissed by the Magistrate 1st Class, Attock on 2-10-2000 and by the Additional Sessions Judge, Attock on 17-10-2000. Investigation is complete and challan was submitted against the petitioner in the Court on 7-11-2000.
3. I have heard the learned counsel for the petitioner, the State, the complainant and have also seen the record.
4. It is contended by the learned counsel that according to the date of birth recorded in the identity card, the petitioner is 75 years of age and according to the police record he is 65 years of age and he is suffering from ailments and, therefore, petitioner's case is covered by first proviso to section 497, Cr.P.C. Learned counsel has also placed reliance on Sakhi Muhammad v. The State 1973 PCr.LJ 397 (Lah.), wherein the accused was an old man of 68/70 years and was not suffering from any ailment and it was held that old age itself brings infirmity and senility and bail before arrest was confirmed on the ground of old age as well as on the ground that there were no reasonable grounds existing to believe him being guilty of an offence punishable with death or transportation for life. It may be mentioned here that the reports were called for from the doctors in regard to the age of the petitioner and in regard to his health condition. The Medical Officer, District Jail, Attock, vide his report, dated 4-1-2001 has reported that the petitioner is suffering from mild ailment and at the time of his medical examination there were no complaints by the petitioner. The Medical Board of the District Headquarters Hospital, Rawalpindi, vide its report, dated 19-12-2000 has determined the approximate age of the petitioner to be 65 years with no serious ailment.
5. Learned counsel for the complainant while opposing the petition in this regard has placed reliance on Hakim Ali and 3 others v. The State 1979 SCMR 114, wherein the petitioner though 70 and 80 years old yet not shown to be sick or infirm was held not entitled to the concession of bail as his case did not fall in proviso to section 497(1), Cr.P.C. Further, reliance in this regard has been placed on Gul Muhammad v. Masam Khan and 3 others 1977 SCMR 27, wherein it was held by the apex Court that relevant consideration for the grant of bail to persons of old age was the infirmity and as there was no medical evidence available in this regard, therefore, while holding that the bail was not admissible merely on account of old age, the bails granted to the accused by the High Court were cancelled. Reliance has also been placed on Muhammad Hussain v. The State 1977 SCMR 52, wherein it was held that mere fact of appellant being 70 years of age would not entitle him to the concession of bail. As the petitioner is not suffering from any serious ailment, his case is not covered by the first proviso to section 497(1), Cr.P.C. And he cannot be enlarged on bail merely because he is 65 years of age. The argument of the learned counsel in this regard has no force and is repelled.
6. It is submitted next by the learned counsel for the petitioner that the offence of section 337-A(ii) does not fall, within the prohibitory clause of section 497, Cr.P.C. And on the present facts the provision of section 337-D, P.P.C. Is not attracted. Section 337-D, P.P.C. Provides that whoever with the intention of causing hurt, causes Jaifah may be liable to punishment with imprisonment of either description of term which may extend to ten years as Tazir. Jaifah is defined in section 337-C, P.P.C. As Jurh in which the injury extends to the body cavity of the trunk. The word "cavity" has not been defined in P.P.C. And it is submitted by the learned counsel for the petitioner that in Pervaiz Khan v. The State PLD 1998 Lah.84, this Court while deciding the appeal of the convict held that "body cavity" means a part of the body under which vital organs are located and if an injury penetrates into body cavity and then enters that part of the body wherein vital organs are located, only then that can be treated as Jaifah and punishment can be awarded accordingly. In the said case the injury had been caused at the back of the chest of the injured witness which passed through the muscles and flesh and made its exit, but it did not extend to body where any vital organs lay or caused any damage to it and it was held that the said injury could not be treated as Jaifah and was declared to be Ghayr Jaifah Mutalahimah punishable under section 337-F(iii). It is argued that in the present case the injury No,1 has not extended to vital parts like heart, lungs or liver, therefore, it is not Jaifah and it does not fall within the prohibitory clause of section 497, Cr.P.C.
It has also been argued that the petitioner is a senior citizen and is behind the bar for the last six months, that it is a case of further inquiry as there is inconsistency between the medical evidence and ocular account regarding the time of occurrence as the occurrence is alleged to have taken place at 9-00 a.m. Whereas the complainant was medically examined at 11-15 a.m. And the probable duration of time between the injury and the examination was held to be one hour.
Reliance in this regard has been placed on Hiddu alias Hidayatullah v. The State 1982 PCr.LJ 30, wherein it was held that inconsistency between the deposition of witnesses and doctor's report about the time of occurrence made it a case of further inquiry and the bail was allowed. It has also been argued that injury No,1 could have been caused by friendly hand to seek vengeance from the petitioner and all the injuries including injury No,1 on the back have been declared to be simple.
Learned counsel has also placed his reliance on Fateh Khan v. The State 1973 PCr.LJ 125 (Lah.) wherein it was held that previous litigation between the accused and the first informant as well as one prosecution witness can be taken notice of while considering question of bail
7. Learned counsel for the State while opposing the petition has submitted that it is a case of single accused and a single injured person, the motive is attributed to the petitioner regarding which there is enough material available on the record, the petitioner was found guilty in the investigation, it is a daylight occurrence, hockey and blood-stained knife have been recovered from the petitioner and he is behind the bars for the last six months. It has, however, been stated that since no vital part was injured, therefore, the attraction of provision of section 337-D, P.P.C. Is doubtful.
8. Learned counsel for the complainant has submitted that the contention of the learned counsel for the petitioner that the case does not fall within the provision of section 337-D, P.P.C. Has noorce and the judgment of Pervez Khan (supra) relied upon by him is distinguishable and it was not a bail matter but a judgment delivered in appeal whereas at bail stage the Courts do not ordinarily undertake detailed inquiry and it is sufficient to state that injury caused by the petitioner is on the vital part of a human body i.e, back of the complainant and it measures 2.5 c.m. x 1/2 c.m. x no resistance up to 4.5 c.m. And the nature of such an injury is always classified as serious as the complainant underwent a major surgical operation and remained in hospital for 14 days and the doctor has wrongly classified the injury as simple. He has, in this regard placed reliance on Shahab Dino alias Shah Dad v. The State 1997 MLD 2749 (Karachi) wherein it was held that the accused was assigned specific role of causing voluntarily grievous hatchet injuries on face of the injured and prima facie the accused stood charge-sheeted for an offence punishable up to 10 years under section 337-D, P.P.C. And the bail was refused under the circumstances. Further reliance in this regard has been placed on Muhammad Akram and 2 others v. The State PU 1998 Cr.Cases (Lah.)
1605 wherein the accused of offence under section 337-D, P.P.C. Was not granted bail.
9. I have already held that the petitioner is not entitled to the grant of bail merely because he is 65 years of age. The argument of the learned counsel for the petitioner that the case against him does not fall within the 'provision of section 337-D, P.P.C. Because no injury was caused on any vital parts like heart and lungs etc., has no force as the provision of section 337-D, P.P.C. Would be attracted where an injury penetrates into the body cavity and then enters that part of the body wherein vital organs are located and it can be treated as Jaifah and punishment can be awarded accordingly. In Pervez Khan v. The State (supra), a judgment relied upon by the learned counsel for the petitioner, it was held in like manner. On the basis of nature and the seat of the injury same has been declared as Jaifah and, therefore, the offence as alleged against the petitioner falls within the prohibitory clause of section 497, Cr.P.C. And this Court at this stage cannot undertake a deeper inquiry and investigation and it is for the trial Court to determine, after recording the evidence, whether the body cavity was of that part of body wherein vital organs are located or was on some other part. At the moment there is no evidence available on the record to show that the body cavity was not located wherein vital organs are located and this Court, therefore, has to go alongwith the prosecution case and has to hold that the offence as alleged against the petitioner prima facie falls within the provision of section 337-D, P.P.C. It is also held that to attract the provision of section 337-D, P.P.C. 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. The offence as alleged against the petitioner, therefore, falls within the prohibitory clause of section 497, Cr.P.C. And it is not a case of further inquiry. The alleged inconsistency of only one hour between the medical evidence and the F.I.R. Version qua the time of occurrence is minor and an accused of the commission of an offence falling within the prohibitory clause of section 497, Cr.P.C. Cannot be released on bail on this Minor discrepancy. The argument of the learned counsel for the petitioner that such an injury could have been caused by friendly hand to seek vengeance has also no force because the nature and the seat of injury shows that the same could not have been caused by friendly hand as the same could have resulted in a serious damage to the complainant's body.
' In view of the abovementioned, I see no merit in this petition which is accordingly dismissed.