2014 PLP 482 (YLR)

MRS. IRSHAD QAISER, J.

Muhammad Ibrar son of Fazal-ur-Rehman seeks his post-arrest bail in case F.I.R. No.215 dated 9-7-2013 for offences chargeable under sections 336/34 of Pakistan Penal Code, 1860 registered in Police Station Ghari Habib Ullah, Mansehra.

2. The case of the prosecution, as set up in the F.I.R., is that the complainant Mst. Resham Jan wife of Yaqoob Khan, resident of Noran-cum-Kashtara, Tehsil Balakot District Mansehra on 5-7-2013 at 19:10 hours along with his son Junaid aged about 17/18 years in injured condition reported to the police in Police Station that she was cutting grass from the fields near her house, when at about 6:00 hours Karim son of Haleem and his wife Mst. Resham Jan came there, who asked her not to cut grass from there, as it is his property. They altercated with her and started quarrelling. They caught hold of her hair and started giving kicks and fists blows. On noise, her son Junaid also came there, who wanted to rescue her, however, Ibrar, Imran sons of Fazal-ur-Rehman came there and Ibrar gave fist blow to Junaid, as a result, he got injuries on upper tooth and lips and also gave kicks and fists blows on his body. Motive for the occurrence was stated to be dispute over property.

3. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered. 4 Without passing any finding on merits that may prejudice the case of the parties during the trial, suffice it to state the definition of 'Itlaf-e-Salahiyyat-i-udw' is given in section 335, which reads that:-- "

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." The injury alleged to have caused with fist blow on lips of injured Junaid, as per medical report, there was mild swelling on upper lip and depress upper incisor tooth with moving of fresh bleeding from upper tooth and the nature of the injury would be determined during the trial after placing both the reports i.e. Medico-legal report and report of Dental Surgeon in juxta-position with the ocular account. Moreover, in view of case reported as Zahoor alias Jara v. State (2005 YLR 1664), surely makes out a case of 'further inquiry' in favour of the petitioner, as envisaged in section 497 of Criminal Procedure Code, 1898. It has been held in the said case that:-- "Moreover, case under section 334 P.P.C. is made out if any organ or limb is amputated whereas fingers of hand or toes of foot are not organs and similarly, teeth are not organ, the whole jaw is an organ. So the petitioners' case at the most falls under section 337-U P.P.C."

5. Before parting with the judgment, it may be kept in mind that the foregoing observations are only tentative in nature for disposal of instant bail petition and these findings would have no bearing on the trial of the petitioner. In this regard reliance may be placed Shuaib Mehmood Butt's case (1996 SCMR 1854).

6. Accordingly, for the reasons mentioned hereinabove, this application for post-arrest bail is allowed and accused petitioner Muhammad Ibrar son of Fazal-ur-Rehman is admitted to bail subject to furnishing bail bonds in the sum of Rs.200,000 (Two Hundred Thousands) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, Mansehra. HBT/629/P Bail granted.