2025 PLP 1987 (MLD)

Muhammad Amjad Rafiq, J.

Petitioner seeks post arrest bail in case FIR No.228 dated 10.04.2022 registered under Sections 324, 337-A(v), 34, P.P.C at Police Station City Bhakkar District Bhakkar.

2. Complainant's son Abdullah a young lad, aged 17/18 years, was hit by a Rikshaw when after a walk he was standing on the road outside Dilkusha garden, looking for his father walking behind. Rikshaw was being driven by Muhammad Waqas, petitioner and act of hitting was claimed as deliberate, due to which there appeared injuries on the Rt. Knee joint of Abdullah. The Petitioner did not finish by hitting Rikshaw rather dragged Abdullah to few paces and smashed his head against a nearby wall. Motive was an alteration which took place on yesterday's evening between Abdullah along with his paternal cousin Shahzad and Waqas petitioner. It was alleged that another accused namely Farukh son of Abdul Qayyum was also with the petitioner.

3. Learned counsel for the petitioner contends that occurrence was of 09.04.2022 at 8.40 p.m., injured reached to the hospital within 5 minutes at 8.45 p.m. and was examined at 9.00 p.m. by the doctor with history of Road Traffic Accident (RTA) as mentioned in MLR. Further he was also not accompanied by any one and he himself signed the consent form apportioned in such MLC despite the fact doctor has shown him as unconscious on his general physical examination/symptoms, and his Glasgow Coma Scale (GSR) was 7/15. Learned counsel for the petitioner further states that doctor while noting injury No. 2 has observed as under; "As Pt (patient) is unconscious, but no obvious injury is present. Suspicion of head injury". Thus, it was a clear case of hit and run and not an intentional act on the part of petitioner so as to stretch his criminal liability up to the level to decline bail to him who is behind the bars since 24.10.2024.

4. Learned Deputy Prosecutor General opposed the bail on the ground that the Glasgow Coma Scale 7/15 shows a worsen mental trauma due to head injury which is attributed to the petitioner. According to him the Glasgow Coma Scale (GCS) is a tool used to assess a patient's level of consciousness by evaluating his eye, verbal, and motor responses, with scores ranging from 3 to 15, where 3 indicates a comatose state and 15 represents normal consciousness, and in this respect also relied on case approved for reporting by this Court as "Muhammad Ramzan v. State and others" (2025 LHC 915) (Crl. Misc.-Post-arrest Bail 10010-B-24). Further states that doctor has later declared the injury as attracting Shajjah-i-ammah which falls within the mischief of Section 337A (v) Pakistan Penal Code 1860, (P.P.C), punishable up to 14 years as per second schedule of Cr.P.C. and attracts prohibitory clause of section 497, Cr.P.C., thus, dis-entitles the petitioner to seek bail on the touchstone of further inquiry.

5. Learned counsel for the complainant also opposed the bail on the ground that due to head injury, injured has lost his senses and has become handicapped, but conceded that no further medical investigation or clinical opinion of any doctor is available in this regard.

6. Learned counsel for the petitioner as a last submission stated that text of Section 337F(v), P.P.C prescribes primary punishment as arsh and optional punishment of 10 years' imprisonment and not fourteen years as asserted by learned DPG. He was of the view that when penal section stands in contradiction with entries in schedule-II of Cr.P.C., then text of section shall prevail.

7. Arguments heard. Record perused.

8. In order to set this anomaly at naught, learned Deputy Prosecutor General was directed to get a copy of original text of amendment in P.P.C showing insertion of offences relating to different kinds of hurt. He later placed on record copy of "Criminal Law (Second Amendment) Ordinance, 1991" gazetted on 4th January, 1991 relating to various amendments in P.P.C. According said Ordinance, punishment of Section 337A (v) was prescribed as arsh which shall be 1/3 of diyat and 10 year's imprisonment as ta'zir. But later "Criminal Law (Amendment) Act, 1997" was passed which was gazetted on April 11, 1997 with permanent features of amendment in P.P.C, earlier introduced through "Criminal Law (Second Amendment) Ordinance, 1991". It kept Section 337A(v), P.P.C as it is but while amending the schedule-II of Cr.P.C., mentioned the imprisonment for offence under this Section as 14 years, which was not understandable. Court cannot presume any mistake in law if committed by the legislature yet this anomaly requires intervention by this Court. Learned DPG in unison with learned counsel for the petitioner stated that text of Section in P.P.C shall prevail over the schedule-II of Cr.P.C.

9. I have given anxious consideration to above stance and gone into examination of schedule-II, which carries eight (8) Columns with headings as follows; 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 compoundable or not Punishment under the Pakistan Penal Code. By what Court triable. The above schedule also carries a title "SCHEDULE-II TABULAR STATEMENT OF OFFENCES" which is supplemented with an "EXPLANATORY NOTE' as under; The entries in the second and sevent columns of this schedule, headed respectively "Offence" and "Punishment under the Pakistan Penal Code", are not intended as definitions of the offences and punishments described in the several corresponding sections of the Pakistan and Code, or even as abstracts of those sections, but merely as reference to the subject of the section, the number of which is given in the first column This explanatory Note makes it clear the offences and punishment cited in the schedule are just reference of respective Sections of P.P.C and not sections itself or abstract of them, which means for the purpose of definition of offence and its punishment, the concerned Section of P.P.C shall be read and its punishment, the concerned Section of P.P.C shall be read and followed as per command of such Sections. thus, despite the fact Schedule-II of Cr.P.C finds mentioned the punishment of Section 337-(v) P.P.C as 14 years' imprisonment, it shall not be followed rather text of Section 337A(v) P.P.C, which entails punishment of 10 year's imprisonment would be preferred. It is however expected that legislature shall review such entry in Schedule-II of Cr.P.C or amend the Section 337A(v) P.P.C with corresponding punishment the schedule.

10. Coming back to the case in hand, section 337A(v) P.P.C entails primary punishment as arsh, therefore, petitioner may be may not be awarded optional punishment of imprisonment by the trial court depending upon the requirement of law as enshrined in Section 337N(2) P.P.C. This ratio has been settled by this Court in case reported as "Ali Muhammad v. The State" PLD 2009 Lah. 312 and also upheld by the Supreme Court of Pakistan in a case reported as "Abdul Wahab and others v. The State and others 2019 SCMR 516).

11. As no injury was observed by the doctor/IMLE on the head of Abdullah at first vicit, as such an internal injury tracked through sophisiticated medical equipment like CT scan hardly supports the theory of smashing the head of Abdullah against a wall at this stage of the proceedings; therefore, whether it is a case of causing intentional injury or a case of hit and run could only be determined after recording to evidence. Thus, the above facts clearly make out the case of petitioner that of further inquiry. Reliance is placed on the cases reported as "Saeed Ullah and 2 others v. The State and another" (2023 SCMR 1397), "Jamalunddin and another v. The State (2023 SCMR 1243), "Ali Raza v. The State and others" (2022 SCMR 1245), "Rafeed Niaz v. The State and another" (2021 SCMR 1467) and "Najeeb Ullah v. The State and another" (2020 SCMR 1241). Petitioner is behind the bars since 24.10.2024, investigation of the case is complete and keeping the petitioner behind the bars will serve no useful purpose to the prosecution and the complainant.

12. In view of what has been discussed above, the petition in hand is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the trial Court. JK/M-146/L Petition allowed.