PLJ 2022 Cr.C. 1385
[Lahore High Court, Rawalpindi Bench]
Present:
Muhammad Amjad Rafiq, J.
WAQAS
AHMED--Petitioner
versus
STATE
etc.--Respondents
Crl.
Rev. No. 100 of 2022, heard on 1.6.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss.
337-A(iii)/337-U/334/337-A(i)/ 337-F(i)/34--Section 337-N--Itlaf-i-udw u/S. 334
PPC--Arsh--In this case, teeth were broken-- Teeth are organ and not the bones;
therefore, broken teeth do not amount to fracture of a bone--Qisas is not
executable then punishment of arsh should be applicable--The law of land at
present day in hurt cases speaks that for offences liable to arsh, punishment
whereof under the relevant sections should be imposed in the light of Section 337-N
PPC--Teeth being not bone, cannot be dealt under said section for its damage
considering it a fracture of tooth rather it amounts to itlaf-i-udw u/S. 334
PPC read with Section 337-U PPC because tooth is an ectodermal specialized
organ--While maintaining the conviction, sentence of the petitioner under Section
337-A (iii) PPC is altered to one u/S. 334 PPC read with Section 337-U PPC--As
per said section, sentence for itlaf of one tooth is arsh equivalent to
one-twentieth of the diyat. Petitioner has caused itlaf of two teeth, therefore, he is liable for arsh equivalent to
two-twentieth of the diyat--Revision dismissed.
[Pp. 1390,
1391, 1392 & 1393] G, H, I, J, K
PLD 2009 Lahore 312; 2019 SCMR 516; 2000
SCMR 338; 2005 SCMR 849; 1992 SCMR 2037; PLD 1991 FSC186 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 412/423/435--Right of appeal--Even after confession, an
accused can challenge the judgment as to the extent and legality of his
sentence--Similarly when right of appeal is not available, same can be assailed
through revision on the similar principles. [P.
1387] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 337-A(iii)/337-A(i)/337-F(i)/337-U/34--Teeth--Whether
tooth is an organ or bone--Tooth is an ectodermal specialized organ which is
part of ectodermal appendages, as observed and declared through scientific
studies from time to time--Anatomy of human being goes by saying that in total
206 bones of human body, tooth is not cited as such. [Pp. 1387 & 1388] B, C & D
2018
PCrLJ (Note) 122; 2005 YLR 1664 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 337-A(iii)/337-A(i)/337-F(i)/337-U/34--Teeth--Teeth and bones
look similar and share some commonalities, including being the hardest
substance in your body; but teeth are not actually bone--Teeth are not living
tissue, they are comprised of four
different types of tissue: i) Dentin ii) Enamel iii) Cementum iv) Pulp.
[Pp.
1389 & 1390] E & F
Mr. Muhammad Danyal, Advocate for Petitioner.
Malik Muhammad Latif, APG for State.
Mr. Muhammad Younas in person for Complainant.
Date of hearing: 1.6.2022.
Judgment
Petitioner Waqas Ahmed has assailed
his conviction and sentence passed by learned Magistrate Section-30, Rawalpindi
on 07.04.2022, and upheld by learned Additional Sessions Judge through judgment
dated 23.04.2022 with the modification of amount of arsh according to value of
diyat prevalent in year 2019. Charge was of causing injuries to Kashif Shahzad
with a spade whose two teeth were broken besides other simple injuries. Trial
was held in FIR No. 307/2019 under Sections 337-A(i), 337-A(iii), 337-F(i) and
34, PPC Police Station Rawat, Rawalpindi and final sentence he assailed before
this Court is given below;
Under Section 337-A(i), PPC:
To pay ‘Daman’ Rs. 50,000/-for causing injury to Kashif Shehzad.
Under Section 337-A(iii), PPC:
To
pay “Arsh” to injured Kashif Shehzad which would be 10 percent of Diyat fixed
as Rs. Rs. 2,05,593.6/-according to value of Diyat for
the financial year 2019
Under Section 337-F(i), PPC:
To pay “Daman” Rs. 5,000/-to injured Kashif Shehzad.
2. It has been informed that the
petitioner after payment of arsh and daman has been
released from the jail; learned Additional Prosecutor General stated that by
payment of arsh and daman, petitioner has conceded his sentence which stood
executed, and raised objection about maintainability of this revision petition.
Learned counsel for the petitioner states that despite the execution or
completion of imprisonment/sentence, appellate Court is required to hear the
appeal on merit as per Section 423 of Cr.P.C. and power under such section is
also available to the Court in revisional jurisdiction as ordains by Section
435 of Cr.P.C.; further states that petitioner has deposited the amount of
arsh/daman under protest and now has questioned the legality of his sentence
u/S. 337-A (iii) only. It is true that even after confession an accused can
challenge the judgment as to the extent and legality of his sentence as per
Section 412 of Cr.P.C., Similarly when right of appeal is not available, same can be assailed through revision on the
similar principles. This principle has rightly been urged which could not be
controverted by learned Additional Prosecutor General.
3. The main thrust of learned counsel
for the petitioner was that Section 337-A(iii), PPC talks about fracture of
bone whereas in this case teeth were broken and teeth can be termed as bones.
On the other hand, learned Additional Prosecutor General states that tooth is
an organ, therefore, petitioner is liable for offence of “itlaf-i-udw” under
Section 334, PPC for which punishment is provided under Section 337-U of PPC,
he relied on case reported as “Mehran Ali versus The State” (2018
P.Cr.L.J. Note 122). Further states that if tooth is not considered as organ
even then offence charged with falls u/S. 337-U, PPC and relied on case
reported as “Zahoor Ahmad and another versus The State (2005 YLR 1664).
At the end prayed that sentence of the petitioner at the most can be altered.
4. Arguments of proponent and opponent were heard at length,
record perused.
5. From the above contentions, it is essential to see as to whether
tooth is an organ (udw) or a bone and what penal section would be attracted if
the teeth are broken/damaged. Literature on the
subject shows that tooth is an ectodermal specialized organ which is part of
ectodermal appendages, as observed and declared through scientific studies from
time to time; reference from case study of Ajna Rivera from university of
pacific titled as Ectodermal Appendages is as under:
“We roughly
classify these appendages into two main groups: the oral appendages, including
teeth and salivary glands, and the skin appendages, including feathers, scales,
hair, mammary glands, sweat glands, and oil glands.”
Ajna was inspired from an article which explained it further;
“The
development of ectoderm-derived appendages results in a large variety of highly
specialized organs such as hair follicles, mammary glands, salivary glands, and
teeth. Despite varying in number, shape, and function, all these ectodermal
organs develop through continuous and reciprocal epithelial–mesenchymal interactions,
sharing common morphological and molecular features especially during their
embryonic development.”[1]
The above
reference/article and like others compose the tooth as an organ; the second
thought that tooth is a bone does require due attention; anatomy of human being
goes by saying that in total 206 bones of human body, tooth is not cited as
such. Tooth being in the group of face anatomy could only be tracked from
facial bones which are reflected through following diagram;
14 Facial Bones
Teeth have not been marked as bones in
above diagram. Another response as made available in the form of a scientific
opinion, medically reviewed by Christine Frank, DDS — Written by Jaime
Herndon, MS, MPH, MFA and was updated on June 12,
2018, throws light on the subject; some excerpts are as follows:-
“Teeth and bones look
similar and share some commonalities, including being the hardest substances in
your body; but teeth aren’t actually
bone. This misconception might arise from the fact that both contain calcium.
More than 99 percent of your body’s calcium can be found in your bones and
teeth. Approximately 1 percent is found in your blood. Despite this, the makeup
of teeth and bones are quite different.
Bones are living tissue. They’re made
up of the protein collagen and the mineral calcium phosphate. This enables
bones to be strong but flexible. Collagen is like a
scaffolding that provides the bone’s framework. The calcium fills in the
rest. The inside of the bone has a honeycomb-like structure. It’s called
trabecular bone. Trabecular bone is covered by cortical bone. Because bones are
living tissue, they’re constantly being remodeled and regenerated throughout
your life. The material never stays the same. Old tissue is broken down, and
new tissue is created. When bone breaks, bone cells rush to the broken area to
begin regeneration of tissue. Bones also contain marrow, which produces blood
cells. Teeth do not have marrow.”
It is further in the research
article that teeth are not living tissue; they are comprised of four different
types of tissue: i) Dentin ii) Enamel iii) Cementum iv) Pulp.
The pulp is the innermost part of a tooth, it contains
blood vessels, nerves, and connective tissue. The pulp is surrounded by dentin,
which is covered by the enamel. Enamel is the hardest substance in the body, it
has no nerves. Though some remineralization of enamel is possible, it can’t
regenerate or repair itself if there is significant damage. The cementum covers
the root, under the gum line, and helps the tooth stay in place. Teeth also
contain other minerals, but do not have any collagen.[2]
No adverse opinion in the form of scientific study was brought on record to
counter or nullify the above observation and declaration about status of teeth.
6. As discussed above, teeth are
organ and not the bones; therefore, broken teeth do not amount to fracture of a
bone as
used in the definition of Shajjah-i-hashimah”; thus, offence under Section 337-A(iii), PPC is not
attracted in the circumstances. Whereas teeth being specialized organ as
ectodermal appendages located in the oral cavity and also part of jaw can
safely be stretched as falling within the definition of ‘udw’ and it is
mentioned in Section 337, PPC that ‘Shajjah’ means any hurt on face and
head which does not amount to “itlaf-i-udw” or “itlaf-i-salahiyyat-i-udw”;
therefore, injury to an ‘udw’ in face and head will not be dealt as ‘Shajjah’
injury.
7. The above study reflects that
teeth, hair, glands and skin are specialized organs therefore, if hurt affects
such organs it would either be dealt under the definition of ‘itlaf-i-udw’
or ‘itlaf-i-salahiyyat-i-udw’. This reason is logical and stands in
conformity with the intention of legislature, when it is observed that arsh for
teeth and hair is provided under Sections 337-U & 337-V, PPC respectively.
Arsh though being punishable as per Section 53 of PPC but maintains its
character as compensation, defined in Section 299 (b), PPC and such
compensation has been specified for hurt falling within the mischief of following
Sections of Pakistan Penal Code, 1860:-
• 334
• 336
• 337-A
(ii), A (iii), A (iv), A (v) and A (vi);
• 337-D
Out of such sections, following entail
punishment of arsh as alternative, otherwise they are punishable with qisas.
• 334
• 336
• 337-A (ii)
It is only if, after consultation with
authorized medical officer, qisas is not executable then punishment of arsh
would be applicable. The proof required for hurt punishable with qisas is
mentioned under Section 304 (2), PPC which reads as under:-
304. Proof of qatl-i-amd liable to qisas, etc.:
(1) Proof of
qatl-i-amd shall be in any of the following forms, namely:
(a) the accused makes before a Court competent to try the
offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the
Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984).
(2) The provisions of
sub-section (1) shall, mutatis mutandis, apply to a hurt liable to
qisas.
(Bold & underline
supplied for emphasize)
If this is the situation then as per
judgments of Honourable Supreme Court reported as “Addus Salam versus The
State” (2000 SCMR 338); “Muhammad Saleem and others versus The State”
(2005 SCMR 849); “Manzoor versus The State and others” (1992 SCMR 2037);
“Sanaullah versus The State” (PLD 1991 Federal Shariat Court 186) and
some others that Tazkiyah-Al-Shuhood is essential for cases punishable with
qisas but such question has not specifically been determined so far by
Honourable Supreme Court in any case of hurt liable to qisas. If it be considered
the correct legal position and proof in the form u/S. 304 (2), PPC is not
available, then offender cannot be punished with qisas and when he is not
punished with qisas, question of executability does not arise, consequently
punishment of arsh cannot be imposed; in that eventuality what punishment would
be awarded to the offender, the statute is silent about this lacuna. Although
in case if punishment as qisas cannot be awarded under Section 302(a), PPC,
legislature has provided safeguard in the form of Section 302(b), PPC but here
in the case of hurt, it is silent. The law of land at present day in hurt cases
speaks that for offences liable to arsh, punishment whereof under the relevant
Sections should be imposed in the light of Section 337-N, PPC. Reliance is on
cases reported as “Ali Muhammad versus The State” (PLD 2009 Lahore 312)
and “Abdul Wahab and others versus The State and others” (2019 SCMR
516). Learned trial Court while following above command has punished the
offender with arsh only and no corporal punishment was awarded.
8. Hurt to one organ usually affects other organs or organ
system in the human body; therefore, it is essential to see how many organs
exist in that human body. As per scientific study human body is composed of 78
different types of organs which are listed below:
Anus |
Capillaries |
Joints |
Nerves |
Skin |
Tendons |
Arteries |
Cerebellum |
Liver |
Nasal Cavity |
Spleen |
Tongue |
Appendix |
Diaphragm |
Lungs |
Ovaries |
Scrotum |
Thyroid |
Adrenal |
Ears |
Larynx |
Oesophagus/
Esophagus |
Stomach |
Trachea |
Brain |
Eyes |
Ligaments |
Penis |
Spinal Cord |
Thymus Gland |
Bones |
Fallopian Tubes |
Lymph |
Pancreas |
Small Intestine |
Ureters |
Bronchi |
Genitals |
Large Intestine |
Pharynx |
Salivary Glands |
Urethra |
Bladder |
Gallbladder |
Lymphatic vessel |
Placenta |
Skeletal Muscles |
Uterus |
Bone Marrow |
Heart |
Mouth |
Prostate |
Seminal vesicles |
Vulva |
Bulbourethral glands |
Hair follicle |
Mesentery |
Pineal Gland |
Subcutane ous tissue |
Veins |
Colon |
Hypothalamus |
Mammary Glands |
Pituitary Gland |
Teeth |
Vagina |
Cervix |
Interstitium |
Nose |
Parathyroid Glands |
Tonsils |
Vas deferens |
Clitoris |
Kidneys |
Nails |
Rectum |
Testes |
Vestigial organ |
The above list is for the guidance of investigators,
prosecutors and the subordinate Courts for dealing with hurt cases in order to
correct application of penal provisions that would of course be subject to
opinion of medical expert.
9. The question in hand, as
contested by both the parties that offence charged with would attract
punishment under Section 337-A (iii), PPC or under Section 337-U, PPC, has been
thrashed. It is concluded that teeth being part of jaw, located in oral cavity
as ectodermal appendages are specialized organs and if dismembered, amputated,
severed, or their functioning, power and capacity is destroyed or permanently
impaired or hurt to teeth caused permanent disfigurement offence under Section
334 or 336 shall respectively be attracted. Punishment in the form of
imprisonment is mentioned in the above Sections but what would be the rate of
arsh for hurt to different organs is shown calculated in Sections 337-Q to
337-W of PPC that include arsh for single organ, organs in pairs, organs in
quadruplicate, fingers, teeth and hair. Through Section 337-R, P.P.C. explains
organs in pairs which include hands, feet, eyes, lips and breast, however, as
per human anatomy, hands and feet are limbs of the body. Similarly, fingers are
also in such category; therefore, hurt in the form of itlaf of a limb would
also be dealt in the category of itlaf-i-udw because Section 333, PPC talks
about form of hurt either to udw or limb. How much arsh should be imposed for
injury to teeth is explained in Section 337-U, PPC which is reproduced below:-
337-U. Arsh for teeth:
(1) The
arsh for causing itlaf of a tooth, other than a milk tooth, shall be
one-twentieth of the diyat.
Explanation:
The impairment of the portion of a tooth outside the gum amounts to causing
itlaf of a tooth.
(2) The
arsh for causing itlaf of twenty or more teeth shall be equal to the value of
diyat.
(3) Where
the itlaf is of a milk tooth, the accused shall be liable to daman
and may, also be punished with imprisonment of either description for a term
which may extend to one year:
Provided that, where itlaf of a milk tooth
impedes the growth of a new tooth, the accused shall be liable to arsh
specified in sub-section (1).
It shows that for every single tooth, value of arsh is
one-twentieth of the diyat and if twenty or more teeth are lost then the whole
amount of diyat shall be payable as arsh.
10. The above discussion helps to conclude that learned trial
Court has wrongly sentenced the petitioner u/S. 337-A (iii), PPC because tooth
being not bone cannot be dealt under said section for its damage considering it
a fracture of tooth rather it amounts to itlaf-i-udw u/S. 334, PPC read with
Section 337-U, PPC because tooth is as an ectodermal specialized organ. Hurt to
teeth out of the scope of Section 337-U, PPC can be seen in light of definition
for itlaf-i-salahiyyat-i-udw for applicability of Section 336, PPC.
11. Consequently, while maintaining the conviction, sentence of
the petitioner under Section 337-A (iii), PPC is altered to one u/S. 334, PPC
read with Section 337-U, PPC. As per said section, sentence for itlaf of one
tooth is arsh equivalent to one-twentieth of the diyat. Petitioner has caused
itlaf of two teeth, therefore, he is liable for arsh
equivalent to
two-twentieth of the diyat relating to year 2019; it in decimal is calculated
as 10% of value of diyat which the petitioner has already deposited. This
revision petition is dismissed
with above alteration in sentence. Case property if any be destroyed and record
of learned trial Court be sent back immediately.
12. Complainant can approach to the learned trial Court for
release of amount of arsh and daman in favour of
injured as determined by the learned appellate Court.
(K.Q.B.) Revision dismissed
[1]. “Stem cell fate determination during
development and regeneration of ectodermal organs” (2012) Frontiers in
Physiology, Lucía Jiménez-Rojo, Zoraide Granchi, Daniel Graf and Thimios A.
Mitsiadis, https://doi.org/10.3389/fphys.2012.00107.
[2]. https://www.healthline.com/health/are-teeth-bones;
the above research also finds support from some more research papers like
“Factors That Make The and Teeth A Vital Organ” by B.
B. Mccllum, D.D.S., Los Angeles, California, and “Scientific American” Vol 293.
No. 2 (August 2005) pp. 34-41 (Author (s): Paul T. Sharpe and Conan S. Young.