2007 PLP 1067 (MLD)

MUHAMMAD JEHANGIR ARSHAD, J.

As similar questions of law are involved, hence, I propose to dispose of this Criminal Miscellaneous No. 2884-B of 2006 along with Criminal Miscellaneous No.3202-B of 2006.

2. In Criminal Miscellaneous No.3202-B of 2006 petitioner Ali who is accused of commission of offence under sections 337-A(ii), 456, 148, 149, P.P.C. Police Station Sher Sultan seeks post-arrest bail in the said case and through Criminal Miscellaneous No.2884-B of 2006 petitioners Muhammad Yaqub, Hazoor Bakhsh, Mukhtar Hussain, Dost Muhammad and Rab Nawaz seek pre-arrest bail in the said case.

3. Since the offence under section 456, P.P:C. is punishable with three years only, therefore, no discussion is required in this respect, however, the law point involved in both these petitions is as to whether in the presence of punishment of an offence by Arsh or Daman this Court can refuse bail in the presence of express provisions of section 337-N(2), P.P.C., which is reproduced below:-- "337-N: Cases in which qisas for hurt shall not be enforced:

(a)

(b)

(c)

(d)

(2) Notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is previous convict, habitual or hardened desperate or dangerous criminal (or the offence has been committed by him in the name or on the pretext of honour): Provided that the Ta'zir shall not be less than one third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour."

4. It has been strenuously argued by Mr. Falak Sher, Advocate learned counsel for petitioners in Criminal Miscellaneous No.2884-B of 2006 that in terms of above reproduced provision the choice before the learned trial Court is to award punishment of Arsh only in case of hurt and award of sentence of Ta'zir is only possible where it is proved that accused is previous convict, habitual or hardened desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour and that same can only be determined by the learned trial Court after recording of evidence, therefore, accused cannot be refused bail at the initial stage on the ground that offence involving hurt also entails punishment as Ta'zir. The learned counsel for the petitioners in this respect has placed reliance on the case "Aurangzeb v. The State and another" (1999 PCr.LJ 230). The learned counsel for the petitioner in Criminal Miscellaneous No.3202-B of 2006 also adopted the above mentioned arguments.

5. On the other hand, learned counsel for the complainant Syed Jawad Jaferi, Advocate in Criminal Miscellaneous No. 2884-B of 2006 has placed reliance on the case "Masood Ahmad alias Muhammad Masood and another v. The State" (2006 SCMR 933) to argue that for deciding pre-arrest bail applications, the element of mala fide was a condition precedent for grant of bail before arrest even in hurt cases.

6. I have considered the arguments of learned counsel for the parties and have also gone through the cited case-law.

7. In "Aurangzeb v. The State and another" (1999 PCr.LJ 230), Mian Muhammad Ajmal, J. from Hon'ble Peshawar High Court, after examining the provisions of sections 337-F(ii) and 337-N(2), P.P.C. has concluded as follows: "The bare reading of the above stated sections i.e. 324, 337-F(ii) and 337-N(2), P.P.C. of the Act would show that the provisions thereof do not supplement each other rather they are at variance from each other. The punishment provided under section 324 of the Act is imprisonment with the fine under "Tazir" and word "shall" has been used making it mandatory in nature, whereas the punishment provided for the offences of the hurt are the payment of arsh or daman as the case may be, which are mandatory and the award of imprisonment of various terms without any fine has been left to the discretion of the Court. The provisions of subsection (2) of section 337-N of the Act overrides section 324 and all other sections providing punishment for offences of hurt contained in the chapter. Subsection (2) of section 337-N begins with non obstante clause as "Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may", give it as overriding effect over all other sections providing punishment for hurt. Under this subsection the offender besides payment of Arsh may be awarded punishment of "Tazir" who is previous convict, habitual or hardened desperate or dangerous criminal," So far as the judgment relied upon by learned counsel for the complainant i.e. "Masood Ahmad alias Muhammad Masood and another v. The State (2006 SCMR 933) is concerned, the same of course relates to hurt case but with all respect to the said judgment of the apex Court, I feel the same is distinguishable on the ground that same does not discuss the effect of section 337-N(2), P.P.C. and so far, as the question of mala fide as discussed in the judgment of the apex Court is concerned, there can be no cavil to the proposition laid down in the said judgment.

8. Since, at present there is neither any allegation nor any evidence on the record to hold that petitioner(s) are either previous convict, habitual or hardened desperate or dangerous criminals or the offence has been committed by them in the name or on the pretext of honour, therefore, I have no option but to agree with the view taken by his lordship Mr. Justice Mian Muhammad Ajmal, in "Aurangzeb v. The State and another" (1999 PCr.LJ 230) that provisions of section 337N(2), P.P.C. are not only mandatory but have overriding effect over all other sections providing punishment for hurt and in terms of subsection (2) of said section, the offender besides payment of Arsh may be awarded punishment of Tazir only when it is proved that he is a previous convict, habitual or hardened desperate or dangerous criminal, and in the absence of any evidence against the present petitioners to this effect at this stage I am persuaded to accept both these bail applications. Resultantly, Ali Muhammad petitioner in Criminal Miscellaneous No.3202-B of 2006 is admitted to post-arrest bail on his furnishing bail bond in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned trial Court. Similarly, the ad interim pre-arrest bail earlier granted to Muhammad Yaqub, Hazoor Bakhsh, Mukhtar Hussain, Dost Muhammad and Rab Nawaz petitioners in Criminal Miscellaneous No. 2884-B of 2006 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.50,000 each with one surety each in like amount to the satisfaction of learned trial Court within ten days. H.B.T./M-104/L Bail granted.