PLJ 2023 Cr.C. 1074
[Lahore High Court, Lahore]
Present: Anwaarul Haq Pannun, J.
SAJJAD AHMAD--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 25688-B of 2023, decided on 12.6.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 332--“Explanation”-- This “Explanation” was introduced in Section 332, PPC vide Criminal Law (Second Amendment) Act XXV of 2011 dated 28.11.2011--Hurt includes, causing pain, harm, disease, infirmity or injury to any person or impairing rendering disable or dismember any organ of body or a part thereof--Section 332, PPC is hub and heart of portion of Chapter XVI dealing with injuries to human body--Thus, use of word ‘hurt’ in any legal provision shall have same meaning as provided u/S. 332, PPC--The word “Hurt” runs like an umbilical cord and finds mentioned in almost all provisions commencing from Section 332 to 337Z, PPC, which deal with offences of hurt to human body in Chapter XVI--It hardly needs any explanation as to how face of a person, his facial outlook and his body symmetry gets deformed/de-shaped when he loses one or more of his teeth, thus shaking his confidence level and exposing him to public ridicule. [P. 1083] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 333 to 336, 337-U--Itlaf-i-udw--Itlaf-i-salahiyyat-i-udw-- In order to move ahead, in view of relevancy of provisions of Section 333 to 336 and 337-U, PPC, in their chronological order, same are reproduced hereunder:
333. Itlaf-i-udw. Whoever dismembers amputates, severs any limb or organ of body of another person is said to cause itlaf-i-udw.
334. Punishment for itlaf-i-udw. Whoever by doing any act, with intention of thereby causing hurt to any person, or with knowledge that he is likely thereby to cause hurt to any person, causes itlaf-i-udw of any person, shall, in consultation with authorized medical officer be punished with qisas, and if qisas is not executable keeping in view principles of equality in accordance with Injunctions of Islam, 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 ta’zir”.
335 Itlaf-i-salahiyyat-i-udw. Whoever destroys or permanently impairs functioning, power or capacity of an organ of body of another person, or causes permanent disfigurement is said to cause itlaf-i-salahiyyat-i-udw.
[Pp. 1083 & 1084] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 333, 335 & 336--Itlaf-i-salahiyyat-i-udw--Necessary ingredients of itlaf-i-salahiyyat-i-udw, within purview of Section 336, PPC, respectively--It will be important to observe that except above highlighted difference between Section 333 and 335, PPC, remaining part of provisions of Section 334 and 336 are similar in their nature and there is no difference therein so far as quantum of punishment is concerned--Under both provisions i.e. 334 and 336, PPC, offences, in consultation with authorized medical officer shall be punishable with qisas and if qisas is not executable, keeping in view principles of equality in accordance with injunctions of Islam, offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to 10 years as Ta’zir. [P. 1085] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 337-U--Arsh for teeth--Upon casting a glance over above quoted provision of Section 337-U, PPC it has become evident that it prima facie deals with (i) itlaf of a tooth other than a milk tooth [permanent tooth including impairment of portion of a tooth outside gum] which is punishable with arsh equal to one twentieth of diyat (ii) itlaf of a milk tooth shall be liable to daman and accused may also be punished with imprisonment of either description for a term which may extend to one year (iii) itlaf of twenty or more teeth shall be punishable with arsh equal to value of diyat (iv) itlaf of a milk tooth resulting into impeding growth of a new tooth shall be punishable with arsh equal to one twentieth of diyat--The use of word itlaf-i-udw has since been made in both provisions of Section 333 and 334, PPC, therefore, it can be held with great quantum of certainty that itlaf of a tooth, being an ectodermal specialized organ, is punishable u/S. 334, PPC, court however, shall have to take into consideration explanatory and controlling position of provision of Section 337-U, PPC while awarding punishment to a convict--The relevant and requisite traits have been embodied by legislature in shape of provision of Section 337-U, PPC to quantify punishment in light of discussion made hereinabove to be awarded to a convict. [P. 1086] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 334, 337-A(i), 337-L(2) & 34--Bail before arrest, dismissal of--Itlaf-i-udw--Itlaf-i-salahiyyat-i-udw-- The matter can be viewed yet from another angle. According to Section 4(b) of Code of Criminal Procedure Code, 1898 “Bailable Offence”, means an offence shown as bailable in second schedule, or which is made bailable by any other law for time being in force; and “non-bailable offence” means any other “offence”--As per Section 4(o) of Code of Criminal Procedure Code, 1898 “offence” means any act or omission made punishable by any law for time being in force--It also includes any act in respect of which a complaint may be made under Section 20 of Cattle Trespass Act, 1871--Section 28 of Code of Criminal Procedure Code, 1898, provides that subject to other provisions of Code, any offence under Pakistan Penal Code may be tried:
(a) by High Court:
(b) by Courts of Sessions; or
(c) by any other Court by which such offence is shown in eighth column of second schedule to be triable.
Undeniably, offence u/S. 334, PPC is mentioned as a non-bailable offence in Schedule II of Code of Criminal Procedure, 1898 whereas Section 337-U, PPC does not find mention therein as an offence, therefore, argument of learned counsel that while treating Section 337-U, PPC as a penal provision and bailable, petitioner may be allowed bail has been found to be without any legal basis and is liable to be repelled on this score--The case laws relied upon by learned counsel for petitioner to contend that jaw is an organ and not teeth, in light of above discussion, since does not advance case of petitioner, therefore, same are held to be irrelevant--The petitioner having been nominated in FIR with specific role of inflicting a sota blow on lips of complainant causing itlaf/breaking of his teeth, duly corroborated with Medico Legal Certificate and statements of PWs u/S. 161, Cr.P.C., recovery of weapon of offence is yet to be effected from him, having been found involved with commission of alleged offence during investigation and on account of his failure in showing any malafide either on part of complainant or police for his false implication by way of registration of criminal case against him, has not been able to make out a case for confirmation of his ad-interim pre-arrest bail.
[Pp. 1086, 1087 & 1088] E, F & G
Mian Asif Mumtaz, Advocate for Petitioner.
M/s. Shehzad Sarwar and Muhammad Aqeel, Advocates for Complainant.
Mr. Sohail Majeed Khan Advocate/amicus curiae assisted by Barrister Hassan Anwaar Pannun.
M/s. Tariq Siddique, Additional Prosecutor General and Rashida Parveen Assistant District Public Prosecutor for State.
Date of hearing: 12.6.2023.
Order
Through this petition under Section 498 of Cr.P.C., Sajjad Ahmad, the petitioner, after refusal to him the relief of grant of pre-arrest bail by the Court of the learned Addl. Sessions Judge, Bhakkar seeks pre-arrest bail in case/FIR No. 203 dated 27.02.2023, offence under Sections 334/337-A(i)/337-L(2)/34, PPC, registered at Police Station Saddar Bhakkar, District Bhakkar.
2. The prosecution’s case as per FIR is that on 14.02.2023, at about 9/10 a.m. the petitioner Sajjad Ahmad along with his co-accused Sabir and Ajmal while armed with “danda” and “Kassies” respectively came at the fields of the complainant, extended threats, in the meanwhile Ajmal co-accused gave a Kassi blow from its wrong/blunt side on his right cheek, the petitioner Sajjad Ahmad gave a danda blow hitting on his lips, resulting into breaking/itlaf of his teeth and the blood started oozing, the complainant fell down, the co-accused Sabir also inflicted kassi blow from its reverse side, hitting on middle finger of his right hand, thereafter the accused persons also caused multiple injuries to him, upon his hue and cry, the witnesses attracted to the spot, upon seeing them, the petitioner along his co-accused ran away towards their houses.
3. Learned counsel for the petitioner at the outset contends that the injury allegedly caused by the petitioner to the injured Faiz Rasool has been declared by the Medical Officer as “Itlaf-i-tooth”, since the jaw is an organ and not the single tooth, therefore, the provision of Section 337-U, PPC is attracted, providing “Arsh” as a punishment instead of rigorous imprisonment, thus the offence under Section 334, PPC is not made out, the provision has wrongly and with mala fide been applied to the facts and circumstances of the case, while relying upon case reported as “Zahoor Ahmad and another vs. The State” (2005 YLR 1664), “Zulfiqar Ali vs. The State and another” (2007 YLR 361), he prayed that the ad-interim pre-arrest bail already granted to the petitioner may be confirmed and instant bail petition may be accepted.
4. On the other hand, while opposing the above noted submissions, learned Addl. Prosecutor General for the state assisted by learned counsel for the complainant and learned Amicus curia have argued that in view of definition of “HURT” by way of Section 332, PPC stating that “whoever causes pain, harm, disease, infirmity or injury to any person or impairs, disables [disfigures, defaces] or dismembers any organ or the body or part thereof of any person without causing his death, is said to cause hurt”, the provision of Section 337-U, PPC quantifies the punishment only, thus in view of the injury caused by the petitioner, the provision of Section 334, PPC has rightly been invoked, providing the punishment of arsh besides imprisonment of either description for a term which may extend to ten years as ta’zir; the petitioner has been found guilty during investigation, recovery of weapon of offence is yet to be effected, in absence of any mala fide either on part of the police or the complainant, he is not entitled to the extra ordinary concession of pre-arrest bail, which is only meant for innocent person, therefore, the petition may be dismissed.
5. Arguments heard and record perused.
6. Before delving deep into the controversy, which in view of above noted divergent arguments made by both sides stands highlighted already, it appears to be necessary that the dictionary meaning of an “organ” may be found out. According to Stedman’s Medical Dictionary (27th Edition), Organ means:
“Any part of the body exercising a specific function, as of respiration, secretion, or digestion.”
Butterworth’s Medical Dictionary (Second Edition) deals with the definition of an organ in an elaborate manner and also states different kinds of organs in the body. Relevant portion is reproduced as follows:
“Organ. Any differentiated part devoted to a specific function.”
“Cement Organ. The embryonic tissue which deposits cement on the surface of a tooth.”
“Enamel Organ. A complex epithelial structure lying on the dental papilla, from which the enamel of a tooth is developed.”
Literature on the subject of tooth and Butterworth’s Medical Dictionary establishes that tooth is an ectodermal specialized organ. The ectoderm is one of the primary layers of cells that exist in an embryo. The ectoderm cells differentiate into cells that form a number of external structures such as skin, sweat glands, skin sensor receptors, and hair follicles. In addition, the ectoderm forms the external surfaces of the eyes (cornea and lens), teeth (enamel), mouth, and rectum, as well as the pineal and pituitary glands. Medical literature, so far, available on human anatomy educates that human body is a symmetrically interwoven composite whole of seventy eight (78) different organs and teeth are considered as one of the organ of the human body. It is also worth mentioning here that after considering a good quantum of available medical literature in the case of “Waqas Ahmed versus State, etc. (PLJ 2022 Cr.C 1385), my learned brother Muhammad Amjad Rafiq, J has already concluded 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 tilted 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.”
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:
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 Hemdon, 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 hone 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. 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.
7. According to Terse Forensic Medicine Jurisprudence and Toxicology (5th edition), teeth have broadly been divided in two sets i.e. (i) Temporary teeth and (ii) Permanent teeth.
Temporary/Deciduous/Milk Teeth:
They are 20 in number. Generally, they begin to appear at about the age of 6 months and the process is completed by about the age of 2.5 years. The average child should have 8 teeth at the age of 1 year, 15 teeth at the age of 1.5 year and 20 teeth at the age of 2-2.5 years. Milk teeth start shedding from 6th-7th year of the age, after the eruption of 1st permanent molar behind the 2nd temporary molar tooth. The period of mixed dentition persists till about 12 to 13 years of age.
Permanent teeth:
They are 32 in number and usually appear first in the lower and then in the upper jaw.
For further elaboration, a table is given hereunder to highlight the main differences between temporary teeth and the permanent teeth:
TEMPORARY TEETH | PERMANENT TEETH |
Small, narrow, light, and delicate except temporary molars which are longer than permanent premolars replacing them. | Big board heavy and strong except permanent premolars replacing temporary molars |
Crowns: china-White in colour. | Crowns: Ivory-White in colour. |
Junction of the crown with the fang often marked by a ridge. | Junction of the crown with the fang not so marked. |
Neck more constricted. | Neck less constricted. |
Edges serrated. | Edges not serrated. |
Anterior teeth vertical. | Anterior teeth usually inclined somewhat forward. |
Molars are usually larger. Their crowns are flat and their roots smaller and also more divergent. | Bicuspids which replace the temporary molars are usually smaller. Their crowns have cusps which sharply differentiate them. The roots are bigger and less divergent. |
Until a generation are two ago most people including the dentists were guilty of disregarding the value of deciduous teeth of children. The primary teeth were considered as simply a temporary phase in the more important process of acquiring a permanent dentition. Rarely did these teeth received adequate attention. The customary treatment was extraction of any deciduous tooth, if so diseased it by dis-functioning or pain to the child. One of the most common consequences of this philosophy of treatment or lack of it was a loss of space with the potential for crowding and malocclusion in the permanent dentition. This aspect of the matter has since been taken while enacting the provision of Section 337-U by the legislature, the detailed relevant discussion shall be made at the later stage of the judgment.
8. The hurt has been defined under Section 332, PPC, which reads as under:
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.”
[Explanation.--Disfigure means disfigurement to face or disfigurement or dismemberment of any organ or any part of the organ of the human body which impairs or injuries or corrodes or deforms the symmetry or appearance of a person.]”
(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.
This “Explanation” was introduced in Section 332, PPC vide Criminal Law (Second Amendment) Act XXV of 2011 dated 28.11.2011. From above, it emerges that hurt includes as stated above, causing pain, harm, disease, infirmity or injury to any person or impairing rendering disable or dismember any organ of the body or a part thereof. Section 332, PPC is the hub and heart of the portion of Chapter XVI dealing with injuries to human body. Thus, the use of the word ‘hurt’ in any legal provision shall have the same meaning as provided under Section 332 PPC. The word “Hurt” runs like an umbilical cord and finds mentioned in almost all the provisions commencing from Section 332 to 337Z, PPC, which deal with offences of hurt to human body in Chapter XVI. It hardly needs any explanation as to how the face of a person, his facial outlook and his body symmetry gets deformed/de-shaped when he loses one or more of his teeth, thus shaking his confidence level and exposing him to the public ridicule.
9. In order to move ahead, in view of relevancy of the provisions of Section 333 to 336 and 337-U, PPC, in their chronological order, the same are reproduced hereunder:
333. Itlaf-i-udw. Whoever dismembers amputates, severs any limb or organ of the body of another person is said to cause itlaf-i-udw.
334. Punishment for itlaf-i-udw. Whoever by doing any act, with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, causes itlaf-i-udw of any person, shall, in consultation with the authorized medical officer be punished with qisas, and if the qisas is not executable keeping in view the principles of equality in accordance with the 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 ta’zir”.
335 Itlaf-i-salahiyyat-i-udw. Whoever destroys or permanently impairs the functioning, power or capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause itlaf-i-salahiyyat-i-udw.
In commentary, scope is given that the offence covers (i) Permanent impairing of the power of any member or joint. (ii) Privation of sight of either eye, hearing of either ear, or of any member or joint. (iii) Cutting of any lip (iv) Uprooting of the hair of the head, eye, brows, eye laches or any other part of the body (v) Deprivation of complete sight (vi) Privation of complete hearing (vii) Loss of sexual power (viii) Cutting of nose-part or whole (ix) Loss of tooth other than milk tooth (x) Loss of milk tooth if amounts to permanent loss of tooth (xi) Loss of one finger or thumb whether of hand or foot. These fall within the ambit of grievous hurt.
336 Punishment for itlaf-i-salahiyyat-i-udw. Whoever, 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-i-udw of any person, shall, in consultation with the authorized medical officer, be punished with qisas and if the qisas is not executable, keeping in view the principles of equality in accordance with the 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 taʼzir.
Upon making a comparative study of the provisions of Section 333 and 335, PPC, defining the itlaf-i-udw and itlaf-i-salahiyyat-i-udw, it has become evident that dismemberment [according to Merriam Webster Dictionary, the word dismember is defined as to cut off or disjoin the limbs, members, or parts of as well as to break up or tear into pieces; Collins Dictionary as to cut or pull it into pieces as well as to break it up into smaller parts; Oxford Learners Dictionary as to cut or tear the dead body or a person or an animal into pieces as well as to divide a country, an organization, etc. into smaller parts however according to Cambridge Dictionary as to cut, tear or pull off the body], amputation [according to Merriam Webster Dictionary amputate is defined as to remove by or as if by cutting as well as to cut off; Collins Dictionary as to cut all or part of it off as well as to prune, lop off, or remove; Oxford Learners Dictionary as to cut off; Cambridge Dictionary as the cutting off of a part of the body] and severance [according to Merriam Webster Dictionary the word sever is defined as to put or keep apart as well as to remove (something, such as a part) by or as if by cutting; Cambridge Dictionary as to break or separate, especially by cutting; Collin Dictionary as to sever something means to cut completely through it or to cut it completely off] of a limb and an organ of a person by another person, is necessary to constitute the offence of itlaf-i-udw within the mischief of Section 334, PPC whereas destruction or permanent impairment of the functions, power or capacity of an organ of the body [the term permanently impair functioning, power or capacity of an organ of body definition according to Merriam Webster as to diminish in function, ability or quality as well as to weaken or make worse; Collins Dictionary as to reduce or weaken in strength, quality, etc. and to make or cause to become worse; diminish in ability, value, excellence, etc.; weaken or damage as well as to grow or become worse; lessen] of another person or causing a permanent disfigurement [according to Collins Dictionary disfigurement is something that spoils a person’s appearance], are the necessary ingredients of itlaf-i-salahiyyat-i-udw, within the purview of Section 336, PPC, respectively. It will be important to observe that except the above highlighted difference between Section 333 and 335, PPC, the remaining part of the provisions of Section 334 and 336 are similar in their nature and there is no difference therein so far as the quantum of punishment is concerned. Under both the provisions i.e. 334 and 336, PPC, the offences, in consultation with the authorized medical officer shall be punishable with qisas and if qisas is not executable, keeping in view the principles of equality in accordance with 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 10 years as Ta’zir:
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).
10. Upon casting a glance over the above quoted provision of Section 337-U PPC it has become evident that it prima facie deals with (i) itlaf of a tooth other than a milk tooth [permanent tooth including the impairment of portion of a tooth outside the gum] which is punishable with arsh equal to one twentieth of diyat (ii) itlaf of a milk tooth shall be liable to daman and the accused may also be punished with imprisonment of either description for a term which may extend to one year (iii) itlaf of twenty or more teeth shall be punishable with arsh equal to the value of diyat (iv) itlaf of a milk tooth resulting into impeding the growth of a new tooth shall be punishable with arsh equal to one twentieth of the diyat. The use of word itlaf-i-udw has since been made in both the provisions of Section 333 and 334, PPC, therefore, it can be held with great quantum of certainty that itlaf of a tooth, being an ectodermal specialized organ, is punishable under Section 334, PPC, the court however, shall have to take into consideration the explanatory and controlling position of the provision of Section 337-U, PPC while awarding punishment to a convict. The relevant and requisite traits have been embodied by the legislature in the shape of the provision of Section 337-U, PPC to quantify the punishment in the light of discussion made hereinabove to be awarded to a convict.
11. The argument of learned counsel for the petitioner that according to facts and circumstances of the case “as the injury attributed to the petitioner as per Medico Legal Certificate is “Itlaf of a tooth”, the offence under Section 337-U, PPC, at the most is made out and the provision of Section 334, PPC has wrongly been invoked as the teeth are not an organ and the same is only applicable if an organ or limb was dismembered, amputated or severed”, in the light of above discussion is held to be misconceived, hence repelled.
12. The matter can be viewed yet from another angle. According to Section 4(b) of the Code of Criminal Procedure Code, 1898 “Bailable Offence”, means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other “offence”. As per Section 4(o) of the Code of Criminal Procedure Code, 1898 “offence” means any act or omission made punishable by any law for the time being in force. It also includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871. Section 28 of the Code of Criminal Procedure Code, 1898, provides that subject to other provisions of the Code, any offence under the Pakistan Penal Code may be tried:
(a) by the High Court:
(b) by the Courts of Sessions; or
(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable.
Having the force of law behind it, this schedule besides above also depicts in its column No. 1, “the section”, No. 2, “the offences”, No. 3 “Whether the police may arrest without warrant or not”, No. 4 “whether a warrant or a summons shall be issued”, No. 5 “Whether a particular offence is bailable or not”, No. 6 “whether compoundable or not”, No. 7 “Punishment under the Pakistan Penal Code”, For further clarification, the synopsis of the Schedule-II is reproduced hereunder:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 |
Section | Offence | Whether the police may arrest without warrant or not | Whether a warrant or a summons shall ordinarily issue in the first instance | Whether bailable or not | Whether compound-able or not | Punishment under the Pakistan Penal Code | By what Court triable |
Undeniably, the offence under Section 334, PPC is mentioned as a non-bailable offence in Schedule II of the Code of Criminal Procedure, 1898 whereas Section 337-U, PPC does not find mention therein as an offence, therefore, the argument of learned counsel that while treating Section 337-U, PPC as a penal provision and bailable, the petitioner may be allowed bail has been found to be without any legal basis and is liable to be repelled on this score. The case laws relied upon by the learned counsel for the petitioner to contend that jaw is an organ and not the teeth, in the light of above discussion, since does not advance the case of the petitioner, therefore, the same are held to be irrelevant.
13. The petitioner having been nominated in the FIR with the specific role of inflicting a sota blow on the lips of the complainant causing itlaf/breaking of his teeth, duly corroborated with the Medico Legal Certificate and the statements of PWs under Section 161, Cr.P.C., recovery of weapon of offence is yet to be effected from him, having been found involved with the commission of alleged offence during investigation and on account of his failure in showing any malafide either on the part of the complainant or the police for his false implication by way of registration of criminal case against him, has not been able to make out a case for confirmation of his ad-interim pre-arrest bail.
14. For what has been discussed above, the petition is dismissed and ad-interim pre-arrest bail already granted to the petitioner, vide order dated 14.04.2023 is recalled. Previous surety of the petitioner is discharged from the liability of his bail bonds.
(A.A.K.) Petition dismissed
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