2009 P Cr (PLP)

KAZIM ALI MALIK, J.

Apprehending arrest in a case F.I.R. No.451, dated 9-10-2008 under sections 337-A(i), 337-A(ii), 337-L(ii)/34, P.P.C. registered with Police Station Shergarh, District Okara, Muhammad Iqbal, petitioner, made an application for anticipatory bail before the Court of Session, Okara, which was made over to a learned Additional Sessions Judge, Okara, who dismissed the same vide order, dated 6-1-2009. Hence this bail petition for the same relief.

2. The prosecution case set up in the F.I.R. in brief is that on 8-10-2008 at 11-00 a.m. Muhammad Iqbal (petitioner), Muhammad Irfan, Mahboob and their father Rehmat Ali (co-accused) respectively armed with dagger, iron rod, stick and axe entered the shop of Muhammad Yousaf, complainant. Rehmat, co-accused, and Muhammad Iqbal, petitioner, allegedly opened attack and struck Muhammad Yousaf, complainant with dagger and axe on different parts of his body. Motive for the occurrence statedly was business rivalry.

3. The following reasons weighed with learned Additional Sessions Judge while declining pre-arrest bail to the petitioner:-- (i) The medico-legal report shows that the complainant received 13 injuries. (ii) Prima facie there is no material on record to establish mala fide of the police or ulterior motive of the complainant. (iii) Person of the petitioner is required to effect recovery of Chhuri, the weapon of offence. (iv) The petitioner has been found guilty by the police. (v) The complainant and his witnesses have supported the charge by means of their statements before the Investigator.

3. On medical examination of Muhammad Yousaf, complainant, the medical-examiner found 13 injuries on his person and described them asunder:

(i) Lacerated wound 4 x 1-1.2 c.m. x bone deep, 5 c.m. above inner side of right ankle joint. Mudiha (ii) Lacerated wound 1 c.m. x 1/2 c.m. skin deep, 1 c.m. above injury No. 1. 337-L(ii) (iii) Contused swelling 10 c.m. x 10 cm. on front upper one third of right leg. 337-L(ii) (iv) An abrasion 1 c.m. x 1./4 c.m. on outer lower right thigh. Damiyah (v) A contusion 10 c.m. x 2 c.m. on outer left side of knee joint. 337-L(ii) (v) An abrasion 1 c.m. x 1/2 c.m. with swelling on back right forearm. Damiyah (vii) A contusion 10 c.m. x 4 c.m. on top of right shoulder. 337-L(ii) (viii) Contused swelling 7 c.m. x 6 c.m. on back middle left forearm. 337-L(ii) (ix) A contusion 6 x3 c.m. back middle left arm. 337-L(ii) (x) A contusion 10 c.m. 2 c.m on top back of left upper arm. 337-L(ii) (xi) Contused swelling 16 c.m. x 4 c.m. on back middle (sic) 337-L(ii) (xii) Contused swelling 8 c.m. x 2 c.m. below left scapula 337-L(ii) (xiii) Swelling of 6 c.m. x 4 c.m. on occipital (back of head) Shajjah Khafifah

4. Munir Ahmad, S.-I. drew up the F.I.R. in line with written complaint of Muhammad Yousaf. In his opinion offences under sections 337-A(i), 337-A(ii), 337-L(ii), 337-L(ii) read with section 34, P.P.C. were made out in the light of medico-legal report and the complainant's version.

5. I propose to determine as to what offence is made out in the light of medico-legal report of the injured/complainant. Provisions of sections 337-A(i) and 337-L(ii), P.P.C. are bailable and non-cognizable. Only section 337-A(ii), P.P.C. is cognizable and non-bailable. It is painful to note that the Investigating Officer applied wrong provisions of law. It is manifest from a bare perusal of the medico-legal report that only injury No.13 in the nature of swelling was found on occipital (back of the head), which comes within the ambit of Shajjah-i-Khafifah punishable under section 337-A(i), P.P.C. There was no other injury on the 'head or face of Muhammad Yousaf, complainant. The available record does not tell as to how and on what basis the Investigating Officer treated the injury on ankle joint as Shujjah-i-Mudihah punishable under section 337-A(ii), P.P.C. Section 337-(b)(ii) of P.P.C. lays down that whoever causes Shujjah (an injury on head or face only) by exposing bone of the victim without disclosing it is said to cause Shujjah-i-Mudihah punishable under section 337-A(ii), P.P.C. When confronted with the above discussed statutory provisions of law governing the subject, the learned Law Officer has frankly conceded that none of the injuries suffered by the complainant falls within the ambit of section 337-A(ii), P.P.C.

6. Besides contusions, abrasions and contused swellings on non-vital parts of the body, the complainant sustained two lacerated wounds on his ankle joint, out of which injury No.1 was bone deep. The contusions, abrasions and swellings come within the purview of section 337-L(ii), P.P.C. as observed by the medical examiner and the Investigating Officer. I have already concluded in the preceding lines that the injury on the back of head falls within the ambit of section 337-A(i), P.P.C. The lacerated bone deep wound (injury No.1) on the ankle joint cannot be termed as Shujjah-i-Mudihah, which as defined in the Code, is an injury on head or face exposing bone of the victim without dislocating it. The injury on the ankle joint is Jurrah-i-Mutalahimah punishable under section 337-F(iii), P.P.C. for a term which may extend to three years' imprisonment as Ta'zir. To sum up the above discussion the injuries on the person of complainant are punishable under section 337-A(i), 337-L(ii) and 337-F(iiii), P.P.C. out of which the former mentioned two provisions of law are non-cognizable and bailable.

7. After resolving the controversy with regard to the nature of injuries allegedly suffered by the complainant, the next question, which requires serious thought, as to whether there are reasonable grounds to hold the petitioner, prima facie, liable for the offence. It is the prosecution case that the petitioner gave dagger blows to the complainant on different parts of his body. This allegation is not receiving support from the record, particularly, the medico-legal report, discussed above. There was not a single sharp-edged weapon injury on the person of complainant. Needless to add that abrasions, contusions and contused swellings could not be the result of dagger blows. Similarly, the two lacerated wounds on ankle joint were also caused by blunt weapon. In view of the above said state of record, I feel no difficulty in concluding as result of tentative assessment of the material that the complainant's allegation against the petitioner that he gave him dagger blows, stands repudiated by the medical evidence.

8. This is a case of the injured complainant versus the medical examiner. At the cost of repetition it is noteworthy that the complainant allegedly received dagger blows at the hands of petitioner whereas the medical examiner opined that the examinee did not suffer even a single sharp-edged weapon injury. The most shocking aspect of the matter is that the above said state of affairs escaped notice of the learned Additional Sessions Judge, who declined pre-arrest bail to the petitioner with an observation that he failed to establish mala fide on the part of police or the complainant. This observation of the learned Additional Sessions Judge is offensive to the record discussed above. Here I may add that the question touching human liberty should not have been dealt with mechanically and in a casual way. In the circumstances, I am of the opinion that the allegation against the petitioner appears to be tainted with mala fide on the part of the investigator and the complainant. I, therefore, accept this petition and confirm interim pre-arrest bail of the petitioner against the bail bond already submitted by him. N.H.Q./M-182/L Pre-arrest bail allowe