PLJ 2022 Cr.C. 1385
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 337-A(iii)/337-U/334/337-A(i)/ 337-F(i)/34--Section 337-N--Itlaf-i-udw u/S. 334 PPC--Arsh--In this case, teeth were broken-- Teeth are organ and not the bones; therefore, broken teeth do not amount to fracture of a bone--Qisas is not executable then punishment of arsh should be applicable--The law of land at present day in hurt cases speaks that for offences liable to arsh, punishment whereof under the relevant sections should be imposed in the light of Section 337-N PPC--Teeth being not bone, cannot be dealt under said section for its damage considering it a fracture of tooth rather it amounts to itlaf-i-udw u/S. 334 PPC read with Section 337-U PPC because tooth is an ectodermal specialized organ--While maintaining the conviction, sentence of the petitioner under Section 337-A (iii) PPC is altered to one u/S. 334 PPC read with Section 337-U PPC--As per said section, sentence for itlaf of one tooth is arsh equivalent to one-twentieth of the diyat. Petitioner has caused itlaf of two teeth, therefore, he is liable for arsh equivalent to two-twentieth of the diyat--Revision dismissed.
[Pp. 1390, 1391, 1392 & 1393] G, H, I, J, K
PLD 2009 Lahore 312; 2019 SCMR 516; 2000 SCMR 338; 2005 SCMR 849; 1992 SCMR 2037; PLD 1991 FSC186 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 412/423/435--Right of appeal--Even after confession, an accused can challenge the judgment as to the extent and legality of his sentence--Similarly when right of appeal is not available, same can be assailed through revision on the similar principles. [P. 1387] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 337-A(iii)/337-A(i)/337-F(i)/337-U/34--Teeth--Whether tooth is an organ or bone--Tooth is an ectodermal specialized organ which is part of ectodermal appendages, as observed and declared through scientific studies from time to time--Anatomy of human being goes by saying that in total 206 bones of human body, tooth is not cited as such. [Pp. 1387 & 1388] B, C & D
2018 PCrLJ (Note) 122; 2005 YLR 1664 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 337-A(iii)/337-A(i)/337-F(i)/337-U/34--Teeth--Teeth and bones look similar and share some commonalities, including being the hardest substance in your body; but teeth are not actually bone--Teeth are not living tissue, they are comprised of four different types of tissue: i) Dentin ii) Enamel iii) Cementum iv) Pulp.
[Pp. 1389 & 1390] E & F
Mr. Muhammad Danyal, Advocate for Petitioner.
Malik Muhammad Latif, APG for State.
Mr. Muhammad Younas in person for Complainant.
Date of hearing: 1.6.2022.
PLJ 2022 Cr.C. 1385
[Lahore High Court, Rawalpindi Bench]
Present: Muhammad Amjad Rafiq, J.
WAQAS AHMED--Petitioner
versus
STATE etc.--Respondents
Crl. Rev. No. 100 of 2022, heard on 1.6.2022.
Judgment
Petitioner Waqas Ahmed has assailed his conviction and sentence passed by learned Magistrate Section-30, Rawalpindi on 07.04.2022, and upheld by learned Additional Sessions Judge through judgment dated 23.04.2022 with the modification of amount of arsh according to value of diyat prevalent in year 2019. Charge was of causing injuries to Kashif Shahzad with a spade whose two teeth were broken besides other simple injuries. Trial was held in FIR No. 307/2019 under Sections 337-A(i), 337-A(iii), 337-F(i) and 34, PPC Police Station Rawat, Rawalpindi and final sentence he assailed before this Court is given below;
Under Section 337-A(i), PPC:
To pay ‘Daman’ Rs. 50,000/-for causing injury to Kashif Shehzad.
Under Section 337-A(iii), PPC:
To pay “Arsh” to injured Kashif Shehzad which would be 10 percent of Diyat fixed as Rs. Rs. 2,05,593.6/-according to value of Diyat for the financial year 2019
Under Section 337-F(i), PPC:
To pay “Daman” Rs. 5,000/-to injured Kashif Shehzad.
2. It has been informed that the petitioner after payment of arsh and daman has been released from the jail; learned Additional Prosecutor General stated that by payment of arsh and daman, petitioner has conceded his sentence which stood executed, and raised objection about maintainability of this revision petition. Learned counsel for the petitioner states that despite the execution or completion of imprisonment/sentence, appellate Court is required to hear the appeal on merit as per Section 423 of Cr.P.C. and power under such section is also available to the Court in revisional jurisdiction as ordains by Section 435 of Cr.P.C.; further states that petitioner has deposited the amount of arsh/daman under protest and now has questioned the legality of his sentence u/S. 337-A (iii) only. It is true that even after confession an accused can challenge the judgment as to the extent and legality of his sentence as per Section 412 of Cr.P.C., Similarly when right of appeal is not available, same can be assailed through revision on the similar principles. This principle has rightly been urged which could not be controverted by learned Additional Prosecutor General.
3. The main thrust of learned counsel for the petitioner was that Section 337-A(iii), PPC talks about fracture of bone whereas in this case teeth were broken and teeth can be termed as bones. On the other hand, learned Additional Prosecutor General states that tooth is an organ, therefore, petitioner is liable for offence of “itlaf-i-udw” under Section 334, PPC for which punishment is provided under Section 337-U of PPC, he relied on case reported as “Mehran Ali versus The State” (2018 P.Cr.L.J. Note 122). Further states that if tooth is not considered as organ even then offence charged with falls u/S. 337-U, PPC and relied on case reported as “Zahoor Ahmad and another versus The State (2005 YLR 1664). At the end prayed that sentence of the petitioner at the most can be altered.
4. Arguments of proponent and opponent were heard at length, record perused.
5. From the above contentions, it is essential to see as to whether tooth is an organ (udw) or a bone and what penal section would be attracted if the teeth are broken/damaged. Literature on the subject shows that tooth is an ectodermal specialized organ which is part of ectodermal appendages, as observed and declared through scientific studies from time to time; reference from case study of Ajna Rivera from university of pacific titled as Ectodermal Appendages is as under:
“We roughly classify these appendages into two main groups: the oral appendages, including teeth and salivary glands, and the skin appendages, including feathers, scales, hair, mammary glands, sweat glands, and oil glands.”
Ajna was inspired from an article which explained it further;
“The development of ectoderm-derived appendages results in a large variety of highly specialized organs such as hair follicles, mammary glands, salivary glands, and teeth. Despite varying in number, shape, and function, all these ectodermal organs develop through continuous and reciprocal epithelial–mesenchymal interactions, sharing common morphological and molecular features especially during their embryonic development.”[1]
The above reference/article and like others compose the tooth as an organ; the second thought that tooth is a bone does require due attention; anatomy of human being goes by saying that in total 206 bones of human body, tooth is not cited as such. Tooth being in the group of face anatomy could only be tracked from facial bones which are reflected through following diagram;
14 Facial Bones
Teeth have not been marked as bones in above diagram. Another response as made available in the form of a scientific opinion, medically reviewed by Christine Frank, DDS — Written by Jaime Herndon, MS, MPH, MFA and was updated on June 12, 2018, throws light on the subject; some excerpts are as follows:-
“Teeth and bones look similar and share some commonalities, including being the hardest substances in your body; but teeth aren’t actually bone. This misconception might arise from the fact that both contain calcium. More than 99 percent of your body’s calcium can be found in your bones and teeth. Approximately 1 percent is found in your blood. Despite this, the makeup of teeth and bones are quite different.
Bones are living tissue. They’re made up of the protein collagen and the mineral calcium phosphate. This enables bones to be strong but flexible. Collagen is like a scaffolding that provides the bone’s framework. The calcium fills in the rest. The inside of the bone has a honeycomb-like structure. It’s called trabecular bone. Trabecular bone is covered by cortical bone. Because bones are living tissue, they’re constantly being remodeled and regenerated throughout your life. The material never stays the same. Old tissue is broken down, and new tissue is created. When bone breaks, bone cells rush to the broken area to begin regeneration of tissue. Bones also contain marrow, which produces blood cells. Teeth do not have marrow.”
It is further in the research article that teeth are not living tissue; they are comprised of four different types of tissue: i) Dentin ii) Enamel iii) Cementum iv) Pulp. The pulp is the innermost part of a tooth, it contains blood vessels, nerves, and connective tissue. The pulp is surrounded by dentin, which is covered by the enamel. Enamel is the hardest substance in the body, it has no nerves. Though some remineralization of enamel is possible, it can’t regenerate or repair itself if there is significant damage. The cementum covers the root, under the gum line, and helps the tooth stay in place. Teeth also contain other minerals, but do not have any collagen.[2] No adverse opinion in the form of scientific study was brought on record to counter or nullify the above observation and declaration about status of teeth.
6. As discussed above, teeth are organ and not the bones; therefore, broken teeth do not amount to fracture of a bone as
used in the definition of Shajjah-i-hashimah”; thus, offence under Section 337-A(iii), PPC is not attracted in the circumstances. Whereas teeth being specialized organ as ectodermal appendages located in the oral cavity and also part of jaw can safely be stretched as falling within the definition of ‘udw’ and it is mentioned in Section 337, PPC that ‘Shajjah’ means any hurt on face and head which does not amount to “itlaf-i-udw” or “itlaf-i-salahiyyat-i-udw”; therefore, injury to an ‘udw’ in face and head will not be dealt as ‘Shajjah’ injury.
7. The above study reflects that teeth, hair, glands and skin are specialized organs therefore, if hurt affects such organs it would either be dealt under the definition of ‘itlaf-i-udw’ or ‘itlaf-i-salahiyyat-i-udw’. This reason is logical and stands in conformity with the intention of legislature, when it is observed that arsh for teeth and hair is provided under Sections 337-U & 337-V, PPC respectively. Arsh though being punishable as per Section 53 of PPC but maintains its character as compensation, defined in Section 299 (b), PPC and such compensation has been specified for hurt falling within the mischief of following Sections of Pakistan Penal Code, 1860:-
• 334
• 336
• 337-A (ii), A (iii), A (iv), A (v) and A (vi);
• 337-D
Out of such sections, following entail punishment of arsh as alternative, otherwise they are punishable with qisas.
• 334
• 336
• 337-A (ii)
It is only if, after consultation with authorized medical officer, qisas is not executable then punishment of arsh would be applicable. The proof required for hurt punishable with qisas is mentioned under Section 304 (2), PPC which reads as under:-
304. Proof of qatl-i-amd liable to qisas, etc.:
(1) Proof of qatl-i-amd shall be in any of the following forms, namely:
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984).
(2) The provisions of sub-section (1) shall, mutatis mutandis, apply to a hurt liable to qisas.
(Bold & underline supplied for emphasize)
If this is the situation then as per judgments of Honourable Supreme Court reported as “Addus Salam versus The State” (2000 SCMR 338); “Muhammad Saleem and others versus The State” (2005 SCMR 849); “Manzoor versus The State and others” (1992 SCMR 2037); “Sanaullah versus The State” (PLD 1991 Federal Shariat Court 186) and some others that Tazkiyah-Al-Shuhood is essential for cases punishable with qisas but such question has not specifically been determined so far by Honourable Supreme Court in any case of hurt liable to qisas. If it be considered the correct legal position and proof in the form u/S. 304 (2), PPC is not available, then offender cannot be punished with qisas and when he is not punished with qisas, question of executability does not arise, consequently punishment of arsh cannot be imposed; in that eventuality what punishment would be awarded to the offender, the statute is silent about this lacuna. Although in case if punishment as qisas cannot be awarded under Section 302(a), PPC, legislature has provided safeguard in the form of Section 302(b), PPC but here in the case of hurt, it is silent. The law of land at present day in hurt cases speaks that for offences liable to arsh, punishment whereof under the relevant Sections should be imposed in the light of Section 337-N, PPC. Reliance is on cases reported as “Ali Muhammad versus The State” (PLD 2009 Lahore 312) and “Abdul Wahab and others versus The State and others” (2019 SCMR 516). Learned trial Court while following above command has punished the offender with arsh only and no corporal punishment was awarded.
8. Hurt to one organ usually affects other organs or organ system in the human body; therefore, it is essential to see how many organs exist in that human body. As per scientific study human body is composed of 78 different types of organs which are listed below:
Anus | Capillaries | Joints | Nerves | Skin | Tendons |
Arteries | Cerebellum | Liver | Nasal Cavity | Spleen | Tongue |
Appendix | Diaphragm | Lungs | Ovaries | Scrotum | Thyroid |
Adrenal | Ears | Larynx | Oesophagus/ Esophagus | Stomach | Trachea |
Brain | Eyes | Ligaments | Penis | Spinal Cord | Thymus Gland |
Bones | Fallopian Tubes | Lymph | Pancreas | Small Intestine | Ureters |
Bronchi | Genitals | Large Intestine | Pharynx | Salivary Glands | Urethra |
Bladder | Gallbladder | Lymphatic vessel | Placenta | Skeletal Muscles | Uterus |
Bone Marrow | Heart | Mouth | Prostate | Seminal vesicles | Vulva |
Bulbourethral glands | Hair follicle | Mesentery | Pineal Gland | Subcutane ous tissue | Veins |
Colon | Hypothalamus | Mammary Glands | Pituitary Gland | Teeth | Vagina |
Cervix | Interstitium | Nose | Parathyroid Glands | Tonsils | Vas deferens |
Clitoris | Kidneys | Nails | Rectum | Testes | Vestigial organ |
The above list is for the guidance of investigators, prosecutors and the subordinate Courts for dealing with hurt cases in order to correct application of penal provisions that would of course be subject to opinion of medical expert.
9. The question in hand, as contested by both the parties that offence charged with would attract punishment under Section 337-A (iii), PPC or under Section 337-U, PPC, has been thrashed. It is concluded that teeth being part of jaw, located in oral cavity as ectodermal appendages are specialized organs and if dismembered, amputated, severed, or their functioning, power and capacity is destroyed or permanently impaired or hurt to teeth caused permanent disfigurement offence under Section 334 or 336 shall respectively be attracted. Punishment in the form of imprisonment is mentioned in the above Sections but what would be the rate of arsh for hurt to different organs is shown calculated in Sections 337-Q to 337-W of PPC that include arsh for single organ, organs in pairs, organs in quadruplicate, fingers, teeth and hair. Through Section 337-R, P.P.C. explains organs in pairs which include hands, feet, eyes, lips and breast, however, as per human anatomy, hands and feet are limbs of the body. Similarly, fingers are also in such category; therefore, hurt in the form of itlaf of a limb would also be dealt in the category of itlaf-i-udw because Section 333, PPC talks about form of hurt either to udw or limb. How much arsh should be imposed for injury to teeth is explained in Section 337-U, PPC which is reproduced below:-
337-U. Arsh for teeth:
(1) The arsh for causing itlaf of a tooth, other than a milk tooth, shall be one-twentieth of the diyat.
Explanation: The impairment of the portion of a tooth outside the gum amounts to causing itlaf of a tooth.
(2) The arsh for causing itlaf of twenty or more teeth shall be equal to the value of diyat.
(3) Where the itlaf is of a milk tooth, the accused shall be liable to daman and may, also be punished with imprisonment of either description for a term which may extend to one year:
Provided that, where itlaf of a milk tooth impedes the growth of a new tooth, the accused shall be liable to arsh specified in sub-section (1).
It shows that for every single tooth, value of arsh is one-twentieth of the diyat and if twenty or more teeth are lost then the whole amount of diyat shall be payable as arsh.
10. The above discussion helps to conclude that learned trial Court has wrongly sentenced the petitioner u/S. 337-A (iii), PPC because tooth being not bone cannot be dealt under said section for its damage considering it a fracture of tooth rather it amounts to itlaf-i-udw u/S. 334, PPC read with Section 337-U, PPC because tooth is as an ectodermal specialized organ. Hurt to teeth out of the scope of Section 337-U, PPC can be seen in light of definition for itlaf-i-salahiyyat-i-udw for applicability of Section 336, PPC.
11. Consequently, while maintaining the conviction, sentence of the petitioner under Section 337-A (iii), PPC is altered to one u/S. 334, PPC read with Section 337-U, PPC. As per said section, sentence for itlaf of one tooth is arsh equivalent to one-twentieth of the diyat. Petitioner has caused itlaf of two teeth, therefore, he is liable for arsh
equivalent to two-twentieth of the diyat relating to year 2019; it in decimal is calculated as 10% of value of diyat which the petitioner has already deposited. This revision petition is dismissed with above alteration in sentence. Case property if any be destroyed and record of learned trial Court be sent back immediately.
12. Complainant can approach to the learned trial Court for release of amount of arsh and daman in favour of injured as determined by the learned appellate Court.
(K.Q.B.) Revision dismissed
[1]. “Stem cell fate determination during development and regeneration of ectodermal organs” (2012) Frontiers in Physiology, Lucía Jiménez-Rojo, Zoraide Granchi, Daniel Graf and Thimios A. Mitsiadis, https://doi.org/10.3389/fphys.2012.00107.
[2]. https://www.healthline.com/health/are-teeth-bones; the above research also finds support from some more research papers like “Factors That Make The and Teeth A Vital Organ” by B. B. Mccllum, D.D.S., Los Angeles, California, and “Scientific American” Vol 293. No. 2 (August 2005) pp. 34-41 (Author (s): Paul T. Sharpe and Conan S. Young.
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