1995 P Cr (PLP)

The petitioner seeks bail in case F.I.R. No.221, dated 14-7-1994, under section 334/330, P.P.C., registered at Police Station Hazro, District Attock.

2. Briefly the prosecution case is that the complainant was carrying a load of grass on a donkey and felt difficulty in passing through the street of the village where the petitioner/accused had parked his tractor, and asked the petitioner to move the tractor aside on which an altercation followed and, allegedly, the petitioner gave a stone blow to the face of the complainant, causing loss of his three teeth.

3. Bail is sought on the ground that the offence committed by the petitioner even if fully proved, would be that of payment of Arsh primarily, and the sentence of Tazir is additionally liveable and in such a case the accused is entitled to the grant of bail.

4. Learned counsel for the State has opposed the grant of bail saying that the offence carries a sentence of ten years, as such the petitioner's case comes under prohibitory clause of section 497, Cr.P.C. which disentitles him to the concession of bail.

5. Section 334, P.P.C. reads as under: "Punishment for Itlaf-i-udw.

Whoever by doing any act with the intention of thereby causing hurt to any person or with the knowledge that he is likely thereby to cause hurt to any person causes Itlaf-i-udw of any person, shall in consultation with the authorised Medical Officer, be punished with Oisas, 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 Tazir:" Thus, where a person is accused of causing Itlaf-i-Vdw, he is liable to: (i) Punishment of Qisas; (ii) Payment of Arsh; and (iii) Sentence of imprisonment upto ten years as Ta'zir. In the case in hand, the teeth allegedly uprooted in the occurrence were not recovered and in the absence of any corroborative evidence, the case of the petitioner, prima facie, would be punishable under section 337-U, P.P.C. with payment of Arsh amounting to 3/20 of the amount of Diyat; and additionally any sentence of imprisonment upto ten years, found appropriate by the learned trial Court.

6. The law of bail in Shariah in criminal cases has been stated by various jurists. Fatwa-e-Alamgiri, Vol. V. p.50 in "Kitab-ul-Kifala' quoting Imam Azam says that the offences punishable with Qisas; and Hadd in case of Oazf and theft are bail-able. However, the learned authors say, quoting "Kifaya", that case, which are punishable with sentence of Hudood such as offence of drinking or of Zina or of theft are not bailable. Shams-ul-Aima, Imam Sarkhsi has been quoted as saying that offence of "Qatl-i-Khata" or causing injury by "Khata"; and such other offence, which do not entail Qisas and all such offences, which are punishable as Tazir would be bail-able. It has also been stated that a person in case entailing Oisas would not be imprisoned unless two truthful witnesses come forward to give evidence.

7. Thus, principles of grant of bail in Shariah would be that persons charged with offences relating to enforcement of Hudood would not be entitled to bail. About Qisas, though opinions differ, yet the preponderance of opinion is that cases involving Qisas are not bail-able provided acceptable and reliable evidence is available against the accused. This would also show that the further' A enquiry into guilt of the accused in cases where evidence qua his guilt is' deficient or wanting in certain respects, is an acceptable ground for grant of bail in Shariah, as well. As far as offences punishable with imprisonment as Tazir are concerned, these are, generally bail-able. Same is the position in case where offence is obviated with payment of Diyat or Arsh or Dhaman.

8. The facts of the present case show that the primary punishment, prima facie, awardable to the petitioner would be payment of Arsh amounting to B 3/20 of the amount of Diyat prescribed by the Government. Sentence of imprisonment, if any, likely to be awarded would be as Tazir and accordingly the petitioner is entitled to the concession of bail.

9. Under the circumstances," the petitioner is allowed bail in the sum of Rs.30,000 (Rupees thirty thousand only) with two sureties each in the like amount, to the satisfaction of A.C./Duty Magistrate, Attock. N.H.Q./M-1883/L Bail allowed.