ORDER NAEEMULLAH KHAN SHERWANI, J.-- Zafar IqbaJ-petitioner alongwith his brother Shahid and father Nazar Muhammad stands accused in. Case F I R. No. 371, dated 24.11.199, registered with Police Station Alpa, District Multan, at the instance of one Ghulam Akbar. It has been alleged that on 24.11.19991, he alonwith Muhammad Ramzan was busy in serving fodder to their cattle at their Dera. The petitioner armed with a Phahora, Shahid carrying a Sofa and bfcazar Muhammad suddenly emerged from within a cluster of Dalbergia-sisu trees and launched criminal assault upon the complainant side. Nazar Muhammad was directed the whole operation. He exhorted a proverbial Lalkara to the effect that Ramzan and others be killed. Zafar Iqbal petitioner was the first to act on the instigation of Nazar Muhammad by delivering a blow with Phahora on head of Muhammad Ramzan, who fell prone on receipt of this injury. Shahid was the next who delivered a Sota blow landing on his right knee.
Nazar*Muhammad inflicted an injury on his rjght knee. The complainant visualizing the situation intercepted but he was taken over by Shahid, co-accused, who gave a Sota blow on his head.
Nazar Hussan also produced injury on his right thumb. Hue and cry was raised by the complainant and others. The prosecution witnesses were attracted to the spot and the accused catching sight of the prosecution witnesses decamped from the s^ot alongwith their respective weapons.
Reasons for the outbreak of this incident was that a quarrel of the complainant side had ensued with Zafar Iqbal and other sometimes before. Owing to the previous incident, the'accused had started nursing grudge against the complainant side.
2. The petitioner was declined relief of post-arrest bail by a learned Additional Sessions Judge at Multan by virtue of his order dated 6.6.2000. ' Now through the instant petition, he has approached this Court for the same relief.
3. Learned counsel for the petitioner in his attrav;:''e arguments to this Court has highlighted the matter in issue as follows:-
(i) That the petitioner is in judicial lock-up for over a year and investigation is still underway and that he has earned his statutory right of ba'1 under the relevant provisions of clause (a) to Third Provtr io sub-section (1) of Section 497, Cr.P.C. Challan has not been submitted so far, so the initiation, continuation and conclusion of trial is likely^ to consume a pretty long time. The end of inquiry or trial is not in sight. The petitioner is not at fault and he cannot be punished for the acts committed by others. An accused cannot be detained interminably in jail for one reason or the other.
(ii) That Section 336, P.P.C. Was wrongjy applied by the police to x make general impression of the case look horrible.
4. Conversely, learned counsel for the complainant assisted by learned State counsel endevoured their best to meet these points by stating that the petitioner's name was very much mentioned in the first information'
[Vol.XX Zafar Iqbal V. The Stata _ J.C. 67 (Naeemullah Khan Shenvani, J.j report. He inflicted injuries on the most vulnerable part of Muhaiiimad Ramzan, who remained admitted to the Hospital for about 22 days and that Section 336, f'.P.C. Was rightly applied by the police'.
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5. ' Respective arguments of both the sides have been heard at length and record perused in the light of their arguments. The asserted of learned counsel for the petitioner that the petitioner was behind the bars for the last more than one year could not be- controverted, which clearly establishes that the period of his custody definitely exceeds over a period of one year.
6. I have eager desire'to examine application of Section 95 6, P.P.C. To the facts and circumstances of the case. According- to provisions of Section 336, P.P.C.; there must'be an allegation that 'some body by doing any act with the intention of causing hurt to any person or with the knowledge that he is likely-to cause hurt to any person, causes. Itlaf-i- Salahiyyat-Udw of any person, shall, in consultation with the authorized medical officfer, be punished with Qisas and if the Qisas is not executable keeping in view the principles of equality in accordance witlvthe Injunctions of Islam, the offender shall be liable to Arsh and may also be punished with imprisonment of either description*for a term, which may extend to ten years as Tazir'. It could not be demonstrated by the prosecution that on account of some injury on the person of victim Itlaf-i-Salahiyyat-i-Udw took place. Which is that organ of the body of the victim, which has been damaged or disfigured, it qs the bounde'n duty of the prosecution*to prove that someone has destroyed or impaired the functioning, power, or capacity of an organ of the victim, but it has failed to do so. No permanent disfigurement could be demonstrated to have been caused.
7. In order to becQme pent per cent sure with the nature of the injury, the police official, present in Court, on 29.8..2000 was directed to produce the X-rays Films, X- rays report and C.T. Scan report, if any, affer obtaining the same from the concerned medical authorities. Order dated 18.9.2000 shows that the medical authority had requested for some time to locate the documents concerned so further time was allowed. Again on 3.11.2000, the police official, present with record, was directed to produce report of the Radiologist, X-rays Film and C.T. Scan report. Reports have not been produced today. Learned counsel for the petitioner has produced aq application of one Khizar Hayat son of Nazar Muhammad, preferred before the Allaqa'Magistrate, Multan for obtaining the afore-mentioned reports from Medical Superintendent Nishter Hospital, Multan with the following order on 7.9.2000. * , "M S. Nishter Hospital for necessary action under the rules."
Medical Superintendent, Nishter Hospital, Multan directed Senior Registrar of Ward No. 14 for necessary action under the rules.. Thereafter Medical Officer, Radiology Department of the said Hospital has put* up the following note on the said application:- "No MLC, X-rays report is available on MLC record nor any entry is available in the register."
Seals of both the officers were impressed on the application. Let it be placed on the file of this case.
8. All this brings me to the conclusion that no X-rays report, C.T. Scan report or X-rays Films were available with the Radiology Department of Nishter Hospital, Multan, Without looking into these reports, no opinion with regard to the head injury of Muhammad Ramzan could possibly be given.
Application of Section 336, P.P.C. Appears to be doubtful. The petitioner is alleged to have caused^ a solitary^ wound on the person of Muhammad Ramzan. He did not repeat act of violence. He is lodged in jail for more than one year and his further incarceration is not likely to advance cause of the prosecution any further. A case for bail is made out.
9. Accordingly, I admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs.50,000/- with two sureties each-in the like amount to the satisfaction of Trial Court.