2023 PLP 1 (YLRN)

MUHAMMAD AMJAD RAFIQ, J.

Through this petition, petitioner namely Gulfam has sought post arrest bail in case FIR No.183 dated 01.03.2022 registered under sections 337-F(iii), 337-A(i), 334, P.P.C. at Police Station Saddar Duniapur, District Lodhran.

2. Heard. Record perused.

3. The petitioner was under the allegation that he attacked upon the complainant and bit his right ear with his teeth and later inflicted a hammer blow which hit on the face of complainant. Injury on face was declared falling within the mischief of section 337-A(i), P.P.C. which is bailable whereas injury on right ear without any declaration was later termed as Itlaf-i-Udw by the doctor punishable under section 334, P.P.C. This observation of doctor runs counter to the description of injury which is as under:-- "Upper 2/3rd part of right helix along with cartilagenious (sic) part of right ear is avulsed and missing, Antitrageous cartilage is exposed, ear lobule and trageous is intact, hearing intact. 6 x 2 cm in size lacerated wound and bleeding margins." This description of injury does not correspond to the definition given in section 333 of P.P.C. which reads as under:- "Itlaf-i-udw. Whoever dismembers, amputates, severs any limb or organ of the body of another person is aid to cause itlaf-i-udw." (Bold and underline supplied) From the above definition it transpires that neither the ear was dismembered, amputated or severed nor any limb of the body. Helix along with cartilaginous part of right ear are the tissues as per information contained in DORLAND'S POCKET MEDICAL DICTIONARY, 29th edition. As per medical literature, tissue is defined as under:-- "A tissue is a group of cells, in close proximity, organized to perform one or more specific functions. There are four basic tissue types defined by their morphology and function: epithelial tissue, connective tissue, muscle tissue, and nervous tissue. Epithelial tissue creates protective boundaries and is involved in the diffusion of ions and molecules. Connective tissue underlies and supports other tissue types. Muscle tissue contracts to initiate movement in the body. Nervous tissue transmits and integrates information through the central and peripheral nervous systems." Above definition and explanation of tissue hardly helps to label it as complete organ or limb of the human body; though such tissues cannot be represented through a detailed literature in this order but to throw light where actually helix and cartilaginous (tissues) positioned at ear, following diagrams are helpful.

4. Obviously, tissue is not an organ nor it can be termed as limb. Therefore, considering helix and cartilaginous as limbs would amount to inflate the criminal liability of the petitioner. Even the doctor has not pointed out which of the limb was affected by above injury, therefore, this observation of doctor at this stage of the proceedings is not appreciated which would finally be thrashed by the learned trial Court after summoning and examining the doctor. Therefore, applicability of section 334, P.P.C. is under dense clouds in the circumstances. If missing of any tissue affects the functioning, power and capacity of any organ permanently then at the most offence under section 336, P.P.C. "Itlaf-i-Salahiyat-i-Udw" could be attracted but at present even such observation of doctor is also not available on the record. The remaining offence under section 337-F(iii), P.P.C. is punishable upto three years which does not fall within the prohibitory clause of section 497 of Cr.P.C. On the face of it, the petitioner has made out a case for bail after arrest on the touchstone of further inquiry as contemplated under Section 497 (2) of Cr.P.C. He is behind the bars since 07.03.2022 without any progress in the trial, as such, he cannot be kept behind the bars for an indefinite period. The Hon'ble Supreme Court of Pakistan in the case "Jahanzeb and others v. State through A.G. Khyber Pakhtun-khwa Peshawar and another" (2021 SCMR 63), with reference to Section 497, Cr.P.C., has held as under:-- "Perusal of the aforesaid provision reveals the intent of the legislature disclosing pre-condition to establish the word "guilt" against whom accusation is levelled has to be established on the basis of reasonable ground, however, if there exists any possibility to have a second view of the material available on the record then the case advanced against whom allegation is levelled is entitled for the relief in the spirit of section 497(2), Cr.P.C."

5. 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.1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. JK/G-21/L Bail grante