2019 P Cr. L J 1039
Bone deep injury---Scope---Shajja-e-mudihah---Scope---Complainant lodged FIR under Ss. 337-A(ii), 337-L(2) & 34, P.P.C. whereas S. 342, P.P.C. was added during investigation---Validity---Alleged offences, except S. 337-A(ii), P.P.C., were bailable---Regarding S. 337-A(ii), P.P.C., according to Medico Legal Certificate of the injured, said injury was mentioned as bone deep and was referred to the Radiologist for expert opinion---Radiologist report, based upon X-ray , showed no fracture, hence, said injury was (naeem)finally declared as under 337-A(ii), P.P.C.---No injury had been defined as "bone deep" in the relevant law rather there could be injury where bone was exposed or not exposed and where bone was exposed or not exposed, it was called as "Shajjah-e-Khafifa", however, where bone was exposed but not dislocated said injury was known as "Shajjah-e-Mudihah"---"Shajjah-e-Khafifa" entailed punishment under S. 337-A(i), P.P.C. whereas" Shajjah-e-Mudihah" attracted S. (naeem)337-A(ii), P.P.C.---Admittedly, neither any fracture was observed in the injury in question nor bone was exposed---In present case, exposure of bone had not been observed in injury in question, such was to be taken as "Shajjah-e-Khafifah"---Doctor while mentioning the injury same as "bone deep and S. 337-A(ii), P.P.C." had clearly acted against the law and facts, and said act was sufficient to show mala fide on the part of prosecution---Injury, in question, prima facie fell within the definition of "Shajjah-e-Khafifah" which attracted S. 337-A(i), P.P.C. and the same was bailable---All the offences, in the present case, therefore, were bailable---Question of recovery of "sota" was no more important after the lapse of so much time---Pre-arrest bail could not be refused(naeem) in circumstances---Bail could not be refused in bailable offences merely for the reason of abscondance---Ad-interim pre-arrest bail already granted to the Petitioner was confirmed, in circumstances.
ORDER.--
-Tariq Mahmood petitioner seeks pre-arrest bail in case FIR No. 156 dated 01.06.2016 under sections 337-A(ii), 337-L(2), 342 and 34, P.P.C., registered at Police Station, Philora, District Sialkot.
2. After hearing learned counsel for the parties, learned law officer and going through the record with their able assistance, it has been straightaway observed that initially case was registered under sections 337-A(ii), 337-L(2) and 34, P.P.C. whereas subsequently section 342, P.P.C. was also added during investigation. Except section 337-A(ii), P.P.C., all other alleged offences are bailable. As far as section 337-A(ii), P.P.C. is concerned, it is important to mention here that according to medico-legal certificate of Muhammad Saleem injured, it was injury No.1, same was mentioned as bone deep and referred to radiologist for expert opinion, thereafter vide radiologist report based upon x-ray dated 28.05.2016 it was found that no fracture was seen. Hence, said injury was finally declared as 337-A(ii), P.P.C.. It is important to mention here that in the relevant law no injury has been defined as "bone deep" injury rather there may be injury where bone is not exposed or bone is exposed, and where bone is not exposed, it is called as "Shajjah-e-Khafifah" however, where bone is exposed but not dislocated said injury is known as "Shajjah-e-Mudihah". "Shajjah-e-Khafifah" entails punishment under section 337-A(i), P.P.C. whereas "Shajjah-e-Mudihah" attracts section 337-A(ii), P.P.C. Admittedly neither any fracture was (naeem)observed in aforementioned injury nor bone was exposed and in this regard it would not be out of place to mention here that Surgeon Medico-legal Punjab, Lahore has already vide letter No.3343/SML, dated 04.07.2013 has categorically mentioned as under:-
"Every bone deep injury where bone is not exposed, does not attract. Shajjah-i-mudihah and only bone exposed injury attracts Shajjah-i-mudihah."
And in his office letter No.3324-26/SML, dated 01.07.2013 reproduced in case of "Muhammad Qasim and another v. The State and others" (PLD 2014 Lahore 555), it has been categorically mentioned that while issuing Medico-Legal Certificate, term "bone deep" must not be used rather it should be mentioned whether bone is exposed or bone is not exposed and it has been further mentioned therein that medical officer shall only describe name of the injury for example "Shajjah", "Jurh" and "Jaifah" etc. and number of sections should not be written except 337-L(i) and section 337-L(2). Hence, in view of above when in this case, exposure of bone has not been observed in aforementioned injury according to Medico-Legal certificate, then, same is to be taken as "Shajjah-e-Khafifah" and Doctor while mentioning the same as "bone deep and section 337-A(ii)" has clearly acted against the law and facts, and said act is sufficient to show mala fide on the part of prosecution in this regard. Resultantly, said injury prima facie falls within the definition of "Shajjah-e-Khafifah" which attracts 337-A(i), P.P.C. and same is bailable. So all the offences in the case are bailable. As far as question of recovery of "sota" is concerned, it is important to mention here that blood disintegrates after about 03 weeks and after the lapse of so many period recovery of "sota" certainly would not serve any purpose to the case of prosecution and, hence, pre-arrest bail cannot be refused for the purpose of recovery in such like "state of affairs". Reliance is placed on the case of "Malik Muhammad Aslam v. The State and others" (2014 SCMR 1349). Bail cannot be refused in bailable offences merely for the reason of abscondance.
3. Resultantly, instant petition is allowed and ad-interim pre-arrest bail already granted to the petitioner Tariq Mahmood is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court. However, it is clarified that the observations made hereinabove are tentative in nature and strictly confined to the disposal of this bail petition.
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