2022 PLP 744 (MLD)

TARIQ SALEEM SHEIKH, J.

Through this application the Petitioner, Muhammad Azeem, seeks pre-arrest bail in case FIR No.193/2021 dated 02.08.2021 registered at Police Station Theh Sheikhum, Kasur, for offences under sections 337-F(i), 337-F(iii), 34, P.P.C.

2. As per crime report, the prosecution case is that on 29.07.2021 the Complainant and his father went to irrigate their field. At about 07:00 p.m. when they were on their way back they passed by the Petitioner and his brothers, their arch rivals. The Petitioner had a hound and on the bidding of his brothers he sicced it to attack the Complainant whereupon it lunged at him and bit his right leg several times.

3. The learned counsel for the Petitioner contended that the Complainant had distorted the facts and had given false colour to the incident. The Petitioner's dog bit the Complainant by accident and the allegation that he prompted it was false and malicious. He further contended that the Petitioner could at the most be accused of negligence in handling the animal which attracts section 289, P.P.C. and constitutes a bailable offence. The police had wrongly charged him under sections 337-F(i), 337-F(iii), 34, P.P.C.

4. The learned Deputy Prosecutor General, assisted by the learned counsel for the Complainant, vehemently opposed this application. He contended that the Petitioner and his co-accused intentionally set the dog on the Complainant and it was neither an accident nor negligence on their part. They had used the dog as a weapon of offence and wounded the Complainant and were liable to be prosecuted under sections 337-F(i), 337-F(iii), 34, P.P.C., rather than under section 289, P.P.C.

5. Arguments heard. Record perused.

6. Historically, animals have occupied an important place in the debates on criminology and in dispensation of criminal justice. According to Piers Beirne, there were times when they were even "prosecuted and punished". He writes: "In parts of medieval Europe from approximately 1280 until as late as 1750, animals that had harmed humans were sometimes prosecuted and punished for their misdeeds (Beirne, 1994). Ideological confirmation of this seemingly bizarre practice was extracted from biblical dictates. Thus: 'if an ox gore a man or a woman that they die, then the ox shall be surely stoned' (Exodus, xxi 28). Its institutional enforcement was sanctioned both by folklore and by legal (especially Catholic) opinion, which agreed on, the need to prosecute deserving animals in the medieval courtroom, and, in appropriate cases, to execute them for their crimes. Domestic [acted] animals were tried in the secular courts and, if necessary, were exposed to the same terrors of public execution as were humans. Wild animals and 'vermin' were tried in the ecclesiastical courts and, if found guilty, were subject to the course of a malediction."

7. Animals can become relevant in crimes in a number of situations. Firstly, when they are "partners" with the humans and are used for the commission of offence. For example, where a human drives, rides, leads or otherwise controls an animal to execute his plot or employs it in crimes like witchcraft. Secondly, where the animals are themselves the subject of crime like dogfighting or other forms of abuse. Thirdly, where they are human property and are stolen, poached, damaged, rustled or otherwise misappropriated, and fourthly, when they are used as weapons as an instrument of physical or psychological terror by one human against another. This case pertains to the last category.

8. It is by now well settled that a seemingly innocuous thing may become dangerous when "under the circumstances, in which it is used or threatened to be used, causes death or other serious physical injury or is readily capable of causing it." In State v. Barragan, 102 Wn. App. 754 (Wash. Ct. App. 2000), the accused was convicted of first degree assault for stabbing a fellow inmate with a pencil. The Court of Appeals of Washington dismissed his appeal even though there was a minor injury to the victim because there was evidence that he intended to commit great bodily harm. The officer who pulled out the embedded pencil testified that it was like pulling out a nail with pliers. The Court held that a pencil is per se not a deadly weapon but it can become so in certain circumstances and, relying upon an earlier case reported as State v. Shilling, 77 Wn. App 166, 171, 889 P.2d 948 (1995), added that "the circumstances of a weapon's use include the intent and ability of the user, the degree of force, the part of the body to which it was applied, and the actual injuries that were inflicted."

9. The Penal Codes in most jurisdictions do not contain specific provisions to cater for the situations in which a canine is used to attack or threaten a human or to commit a crime (robbery, for instance) but the courts do recognize it as a weapon of offence. In People v. Nealis, (1991) 232 Cal. App.3d Supp 1, the accused commanded her Doberman to attack two victims which he did and inflicted significant injuries. The Court held: "A dog trained to attack humans on command, or one without training that follows such a command, and which is of sufficient size and strength relative to its victim to inflict death or great bodily injury, may be considered a 'deadly weapon or instrument.'"

10. In People v. Henderson, (1999) 76 Cal. App. 4th 453, the accused used pitbulls to threaten the police. The expert testified that the pitbulls as a breed are capable of inflicting great bodily injury. The Court held that the dogs were deadly weapons, not necessarily because of their breed, but owing to the fact that the accused had used them as such. In State v. Hoeldt, 139 Wn.App. 225 (Wash, Cal. App. 2007), a dog owner was convicted of second degree assault on a police officer with a pitbull. The Court of Appeals of Washington dismissed his claim that his dog could not be considered a deadly weapon.

11. In the Pakistan Penal Code, 1860 ("P.P.C."), section 289 stipulates:

289. Negligent conduct with respect to animal.

Whoever knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to [three thousand rupees], or with both.

12. A bare reading of the above provision shows that it sanctions negligent conduct. Straight J. defined "criminal negligence" in Regina v. Idu Beg (1881) 3 All 776, 779-80, as follows: "Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care to guard against injury either to the public generally or to an individual in particular which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted."

13. The application and scope of section 289, P.P.C. is best illustrated by Gagumal Mulchand v. Emperor (AIR 1940 Sindh 172). The applicant in that case brought his horse to Dadu and tethered it to a tree in the street and went to a shop. After sometime a man came that way leading his camel and when they passed by the tree the applicant's horse kicked the man and injured him. The police challaned the applicant for negligently omitting to take such order with the horse as was sufficient to guard against the probable danger of grievous hurt to human beings. He argued that the animal was not of vicious character and there was no evidence to the contrary. Record showed that the horse's rope was at least five to six feet long and the street in which he was tied was only about 10 or 12 feet wide. As a result, it considerably obstructed the street and it was impossible for the people to pass without getting very close to its heels. The High Court ruled that the applicant was guilty of negligence and upheld his conviction under section 289, P.P.C.

14. In the instant case, there is a specific allegation against the Petitioner that he sicced his dog on the Complainant which nipped his right leg near the ankle. PWs Muhammad Yousaf and Babar Bashir have got their statements recorded under section 161, Cr.P.C. in support of the prosecution case and, according to them, the incident was not an accident. Medical evidence corroborates the ocular account and the doctor has declared the injuries sustained by the Petitioner as Ghyr Jaifah Damiyhah and Ghyr Jaifah Mutalahimah which attract section 337-F(i) and 337-F(iii), P.P.C. respectively. The offence under the last-mentioned provision is non-bailable.

15. On a tentative assessment of the available evidence and considering the fact that there is also previous rivalry between the accused and the Complainant, section 289, P.P.C., does not apply. 'Negligence' which is the foundational element for this provision is missing.

16. In view of the above, this application is dismissed. The observations of this Court on the facts are tentative and for the disposal of this bail matter only. The prosecution must prove its case beyond reasonable doubt at the trial. Its witnesses must stand the test of cross-examination and establish that they are truthful and reliable. The learned trial court shall decide the case in accordance with law on the basis of the evidence produced before it without being influenced with the said observations. SA/M-31/L Pre-arrest bail declined.