REHAN SHEHZAD Versus State

ORDER

CH. ABDUL AZIZ, J.--- Rehan Shehzad (petitioner) seeks bail after arrest in case FIR No.149 dated 26.06.2020 registered under sections 324, 34, 337-A(i), 337-L(2) and 337-A(iv), P.P.C. registered at Police Station Jand, District Attock.

2. Succinctly stated the case of prosecution as it gleans from the crime report is to the effect that Aneesa Khan (complainant) entered into matrimonial bond with Rehan Shehzad (petitioner) approximately 1-1/2 year before the registration of FIR; that Aneesa Khan, after her marriage was confronted with domestic violence; that on 12.06.2020 at about 11:00 a.m., the petitioner got infuriated on a petty issue and besides abusing complainant also gave beating to her.

3. Arguments heard. Record perused.

4. It can be culled from the facts mentioned in the crime report that Aneesa Khan (complainant/injured) statedly fell prey to domestic violence during which traumas were inflicted by her husband/petitioner through a grinding stick. The incident in question occurred on 12.06.2020 at about 11:00 a.m., whereas its information was imparted to police on the same day, which was entered in the Station Diary/Rozenamcha through Rapatt/Entry No.20. It is discernable from record that injured was medically examined on 12.06.2020 in DHQ Hospital, Jand, in pursuance to which a Medico Legal Certificate was also issued from which it evinces that doctor observed a fracture on the cheekbone below the right eye and three other traumas, which were in the nature of bruises. Subsequent thereto, Computed Tomography (C.T) Scan of the injured was also conducted on 15.06.2020 in DHQ Hospital, Rawalpindi in order to verify the report of Radiologist. As per C.T. Scan report No. 114935 dated 15.06.2020, doctor observed a depressed fracture on the anterior wall of right maxillary sinus of the injured/complainant. The petitioner challenged the MLC issued by THQ Hospital, Jand before the District Standing Medical Board (DSMB) and though the Board vide report dated 26.08.2020 opined that the Radiologist of THQ Hospital committed an error by not immediately referring the injured for C.T. Scan but withheld opinion about the C.T. Scan report dated 15.6.2020. Feeling dissatisfied from the finding of DSMB, the injured approached learned Judicial Magistrate, District Attock for referring the matter to the Provincial Medical Board but it met the fate of dismissal on 16.09.2020. Refusal of Magistrate to refer the matter to Provincial Medical Board prompted the injured to approach this Court through W.P.No.2041 of 2020 upon which following order was passed:-

"In view of the above discussion and the opinion of the District Standing Medical Board constituted by the Medical Superintendent, Ifsand Yar Bukhari Hospital, District Attock, the learned Judicial Magistrate Jand, District Attock, is directed to order and ensure the examination of the petitioner by a Radiologist for conducting a fresh C.T. Scan as recommended by the District Standing Medical Board, strictly in accordance with law and expeditiously preferably within seven days of receipt of copy of this order, as already a lot of time has passed since the occurrence."

In consonance with the aforementioned direction of this Court, fresh C.T Scan of injured was conducted in DHQ Hospital, Rawalpindi by Dr. Ejaz Hussain, who verified the presence of fracture on the anterior wall of right maxillary sinus.

5. It reasonably emerges from the preceding para that complainant/injured was having a fracture on her facial bone. So far as, the origin of the injury in question is concerned it can be traceable from the statement of complainant, who ascribed it to none other than the petitioner. The aforementioned injury is giving rise to an offence under section 337-A(iii), P.P.C. entailing punishment of imprisonment of either description for a terms, which may extend to 10 years, thus attracts the prohibitory clause of section 497, Cr.P.C. In such like offences, the concession of post arrest bail is to be withheld, if reasonable grounds for believing that the accused has been guilty of such an offence. In order to ascertain the presence of reasonable grounds, the court has to make tentative assessment from the following material:-

(i) nature of accusation embodied in FIR;

(ii) statements of the witnesses recorded under section 161, Cr.P.C.;

(iii) medical evidence and

(iv) other incriminating material collected during the course of investigation.

While having resort to tentative assessment through the material mentioned above, it is discernable that petitioner is reasonably connected with the commission of crime for the limited purposes of instant petition, disentitling him to the concession of post arrest bail.

6. The learned counsel also urged the grant of post arrest bail to the petitioner on the ground that the offence under section 337-A(iii), P.P.C. entails primary punishment of Arsh whereas imprisonment of either description up to 10 years is the secondary penalty. On this score, learned counsel further argued that since Arsh is the primary punishment provided for the offence, hence, the petitioner cannot be detained till the pronouncement of final verdict. In reference to the aforementioned arguments, it is observed that the petitioner is burdened with the accusation of having committed an offence under Chapter XVI of the Pakistan Penal Code, 1860, which is titled as "Of Offences Affecting the Human Body". It is found postulated in section 338-F of Chapter XVI, ibid that the provisions of this Chapter and in respect of matters ancillary or akin thereto the Court is guided by the Injunction of Islam as laid down in the Holy Quran and Sunnah. For reference sake, the foregoing provision is being reproduced hereunder:-

"338-F. Interpretation. In the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunction of Islam as laid down in the Holy Qur'an and Sunnah.

In addition, it is also observed that the Qisas and Diyat Ordinance was initially inserted in the Pakistan Penal Code through Criminal Law (Second Amendment) Ordinance, 1990 and it attained finality through Act II of 1997. It evinces from the preamble of the Qisas and Diyat Ordinance that it was primarily promulgated to bring in conformity with injunction of Islam and the Law relating to Human Body, the same for advantage sake is being reproduced hereunder:-

"Whereas it is expedient further to amend the Pakistan Penal Code, 1860 (Act XLV of 1860), and the Code of Criminal Procedure, 1898 (Act V of 1898), to bring them in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah;"

In accordance with the preamble of the Qisas and Diyat Ordinance as well as section 338-F ibid it is being mentioned that an accused burdened with the allegation of having caused hurt to some other living person can be detained in jail during the pendency of trial in larger interest of the society. While holding so, guidance is sought from the observation of Dr. Abdul Kadir Audah which he made in his Book the relevant extract of Urdu translation is as under:-

The afore-mentioned view of Dr. Abdul Kadir Audah was also endorsed by the Hon'ble Supreme Court of Pakistan in case reported as Haji Maa Din and another v. State and another (1998 SCMR 1528).

7. In view of above reasons, this petition merits no acceptance and the same is accordingly dismissed.

SA/R-1/L Bail declined.