Waqas alias Khuda Vs The State etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Crl. Misc.No. 45861-B of 2022

Waqas alias Khuda VS The State, etc.

Sr. No. of order/ Date of order/ Order with signature of Judge, and that of parties or proceeding proceeding counsel, where necessary.

05.09.2022 Ch. Zulfiqar Ali Goraya, Advocate for the petitioner. Miss Maida Sobia, DPG for the State with Nasir, SI. Mr. Abdullah Khan Jatoi, Advocate with the complainant.

Through this petition filed under Section 497 Cr.P.C, the petitioner namely Waqas alias Khuda has supplicated post-capture bail in a case FIR No.1062/2022 dated 23.04.2022, for offences under Sections 354, 506, 336, 337- A(i) & 337-F(i) PPC, registered at P.S Shahdara, District Lahore.

2.Succinctly, the prosecution case as set forth in the FIR is that on 19.04.2022 at about 09:30 O’clock, petitioner made brick blow upon the mouth of the complainant as a result of which, she sustained injuries on her lips as well as cheek and her tooth was also broken. Some passerby rescued her (complainant / injured) from the petitioner. Occurrence was witnessed by PWs Muhammad Nawaz and Naeem Khalid. Accused Waqas alias Khuda fled away from the place of occurrence while extending threats of dire consequences as well as murder. Hence, this case.

3.I have heard the arguments advanced by learned counsel for the petitioner as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant at length and scanned the record minutely with their able assistance.

4.Occurrence in this case allegedly took place on 19.04.2022 at 09:30 O’clock whereas the matter was reported to the police on 23.04.2022 at 06:30 P.M. It is noteworthy that although time of occurrence has been described by the complainant as 09:30 O’clock but it has not been mentioned whether it was ante-meridiem or post-meridiem. There is a delay of almost 04-days in lodging the FIR and no exegesis qua such delay in registration of crime report has been given which manifests that the same was got lodged after due deliberation and consultation. I fortify my view from the dictum laid down in case laws titled as “Chaudhry NADEEM SULTAN vs. The STATE through P.G. Punjab and another” (2022 SCMR 663) and “ALI RAZA vs. The STATE and others” (2022 SCMR 1245).

5.I have pondered over the detail of occurrence provided by the complainant and noticed that according to the prosecution story, the petitioner inflicted brick blow on the mouth of Huma (complainant/injured) whereas according to her Medico Legal Certificate, injuries on her body were found superficial in nature. Moreover, Medical Officer has also described that injuries on the body of Huma (complainant / injured) have been caused by sharp edge weapon, therefore I am of the considered view that ocular account is not synchronized with the medical evidence. In this way, the case of petitioner squarely falls within the remit of further inquiry as stipulated under Sub-section 2 of Section 497 Cr.P.C. Reliance is placed upon the case laws titled as “Haji MAA DIN and another vs. The State and another” (1998 SCMR 1528), “PUR BUX vs. THE STATE” (2012 SCMR 1955), “RESHAM KHAN and another vs. The STATE through Prosecutor General Punjab, Lahore and another” (2021 SCMR 2011), “ALI RAZA vs. The STATE

and others” (2022 SCMR 1245) “MUHAMMAD AMEEN vs. The STATE and another” (2022 SCMR 1444).

6.It is noteworthy that all the offences except offence under Section 336 PPC, are bailable in nature. So far as the attraction of supra mentioned Section is concerned, I am of the view that same is not applicable due to the peculiar facts and circumstances of the instant case. First of all, I have noted that injury No.1 on the person of Huma (complainant / injured) was kept under observation by the concerned Medical Officer till the receipt of report from dentistry. Report of Dr. Aftab Ahmad Khan, Principal Dental Surgeon, Govt. Mian Munshi DHQ Teaching Hospital, Lahore, is available on record which is hereby reproduced as under:- “Upon clinical examination following findings were noted:

Incisal edge fractured.

Edematous swelling on upper and lower lips. Vertical fracture lines (craze lines) in the crown portion.

A small portion fractured on mesial side.

In my opinion the injured to affect teeth seems to be traumatic in nature.”

In the light of supra mentioned opinion rendered by Principal Dental Surgeon, Govt. Mian Munshi DHQ Teaching Hospital, Lahore, concerned Medical Officer, who issued the MLC of Huma (complainant / injured), declared the injury No.1 as “itlaf-i-salahiyyat-i-udw” (336 PPC). After going through the findings of Principal Dental Surgeon, it is evident that he has not given any opinion / report that function of tooth has been impaired permanently whereas initial Medical Officer who declared the injury No.1 as “itlaf-i-salahiyyat-i-udw” (336 PPC), traveling beyond the opinion of Principal Dental Surgeon, Govt. Mian Munshi DHQ Teaching Hospital, Lahore. It is noteworthy that mere incisal edge and mesial side fracture of tooth do not mean that function of tooth has permanently been impaired. As per

Crl. Misc.No. 45861-B of 2022 4

the medical jurisprudence on dental surgery, it can be cured by proper treatment.

So far as craze lines are concerned, these are tiny, superficial and vertical lines that develop over the enamel due to the wear and tear, they encounter. Craze lines are not fractures on the teeth. In contrast, tooth cracks and craze lines are two different things. Craze lines are a normal and common occurrence. They do not mean that teeth is a week or prone to crack. Moreover, fracture of small portion on the mesial side of tooth cannot be termed as “itlaf-i-salahiyyat-i- udw” (336 PPC).

To better appreciate the proposition whether the case of petitioner falls under the category of offence u/s 336-PPC or not, it is expedient to have a glance over the wordings of Sections 335 PPC & 336 PPC which are hereby reproduced for facilitation:-

335.Iitlaf-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.

336.Punishment for itlaf-i-salahiyyat-i-udw. Whoever, by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes itlaf-i-salahiyyat-i-udw, of any person, shall, in consultation with the authorized medical officer, be punished with qisas and if the qisas is not executable keeping in view the principles of equality in accordance with the injunctions of Islam, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as ta’zir.

It is noteworthy that it has been held in case law titled as “Zahoor Ahmad and another vs. The State” (2005 YLR 1664) as under: - “Moreover, case under section 334, PPC 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 an organ, the whole jaw is an organ. So, the petitioner’s case at the most falls under section 337-U, PPC.”

After visiting the judicial archive of pronouncements, further references can be made to the following case laws titled as “KHADIM vs. The State” (2001 P Cr. L J 1668), “ZULFIQAR ALI vs. The STATE and another” (2007 YLR 361), “ARSHAD ALI vs. The STATE and another” (2011 YLR 1933), “MUHAMMAD IBRAR vs. The STATE and others” (2014 YLR 482), “MUHAMMAD ATIQ vs. The STATE and another” (2017 YLR Note 320), “MEHRAN ALI vs. The STATE” (2018 P Cr. L J Note 122) and “FAQIR MUHAMMAD and 3 others vs. The STATE” (2021 YLR In the light of above mentioned circs, I am of the view that offence under Section 336 PPC is not applicable, however, final determination will be made by the learned trial Court after recording and evaluating the evidence.

7.Another important aspect of this case which takes the case of petitioner within the precincts of further inquiry is that parentage of Waqas alias Khuda (petitioner) was wrongly incorporated in the crime-report. Reliance is placed upon the following case law titled as “MURID HUSSAIN and 3 others vs. The STATE” (1996 P Cr. L J 1643).

8.It has been well settled by now that while deciding the bail application, benefit of doubt can be extended to the accused. Reference in this respect may be made of the following case law titled as “MUHAMMAD MANSHA vs. STATE” [PLJ 2019 SC (Cr.C) 138], “Mst. NAZIA ANWAR” [PLJ 2019 (Cr.C.) 355], “RESHAM KHAN and another vs. The STATE through Prosecutor General Punjab, Lahore and another” (2021 SCMR 2011), “ALI RAZA vs. The STATE and others” (2022 SCMR 1245) and “MUHAMMAD IJAZ vs. The STATE and others” (2022 SCMR 1271).

9.So far as the recovery of brickbat at the pointation of Waqas alias Khuda (petitioner) is concerned, I have observed that in the narration of FIR it has been mentioned that petitioner inflicted brick upon the face of complainant whereas recovery of brickbat has been shown on the disclosure and pointation of petitioner from an open place i.e. near Railways Lines, Barkat Town Stop, Lahore. More so, above mentioned recovered brickbat is not stained with blood, however, evidentiary worth of supra mentioned recovery of brickbat will be best adjudged by the learned trial Court after recording and evaluating the evidence.

10.Learned Deputy Prosecutor General has argued that the report u/s 173 Cr.P.C has also been submitted before the learned trial Court and the trial is to be commenced in near future for the reason petitioner is not entitled for concession of bail. I am not agreed with this argument advanced by the learned Deputy Prosecutor General because it has been well settled by now that if the case of petitioner falls within the definition of inquisitiveness then mere commencement of trial is no ground for refusal of bail. I fortify my view from the dictum laid down in case laws titled as “SYED KHALID HUSSAIN SHAH versus The STATE and another” (2014 SCMR 12), “NISAR AHMED versus The STATE and others” (2014 SCMR 27), “MUHAMMAD ISMAIL vs. MUHAMMAD RAFIQUE and another” (PLD 1989 SC 585) and “MUHAMMAD SHAFI and others vs. The STATE and others” (2016 SCMR 1593) and “KALEEM ULLAH vs. The STATE and others” (2017 SCMR 19).

11.Learned Deputy Prosecutor General assisted by learned counsel for the complainant has also argued that the petitioner has caused injuries on the face of a fragile creature at a public place which shows his aggressive mentality and he has committed a heinous offence, for the reason, he is not

entitled for the concession of bail. I am not in agreement with this contention because it has been well settled by now that mere heinousness of offence could not impede release of accused on bail if otherwise his guilt calls for further probe. Similarly, bail could not be withheld as a strategy for punishment. Reliance is placed upon the case laws titled as “MANZOOR vs. The STATE” (PLD 1972 SC 81), “HUSNAIN MUSTAFA vs. The STATE” (2019 SCMR 1914) and “MUHAMMAD SARFRAZ ANSARI vs. The STATE”

(PLD 2021 SC 738).

12.Moreover, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance is placed on case reported as “Haji Muhammad Nazir v. The State” (2008 SCMR 807).

13.The petitioner is continuously behind the bars since 26.04.2022. The investigation is complete and he is no more required for the purpose of further investigation. Petitioner’s further captivity would not serve any useful purpose to the prosecution.

14.Aftermath of op-cit discussion is that petitioner has succeeded in making out the case for the grant of bail after arrest. Resultantly, this petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned trial Court.

15.However, it is clarified that observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition.

(Muhammad Tariq Nadeem) Judge

Approved for reporting

JUDGE

Ejaz*