1998 PLP 1184 (MLD)

Hereunder are the reasons for my short order dated 29-8-1997.

2. Ikramullah accused-petitioner facing prosecution in case F.I.R. No. 311 dated 23-4-1997, under section 324, P.P.C., was refused bail by the Courts below, therefore, he has come up to this Court for the same relief.

3. According to the F.I.R. lodged by Samiullah complainant, he was residing in Khanpur Bazar for the last 3/4 years. He was going to his uncle's house in Tehkal Bala. When he reached the place of occurrence, Ikramullah armed with deadly weapon fired at him, with which he was hit on the right knee. Motive is stated to be a quarrel between the parties, which had taken place in the month of Ramazan.

4. I have heard learned counsel for the parties and perused the record of the case.

5. As per medical report the complainant sustained the injury on the right leg with exit on the lateral side, which according to the learned counsel for the petitioner falls under the kind of 'Badi'ah', which in turn falls under section 337-F (ii), P.P.C., entailing punishment of payment of Daman and imprisonment which may extend to three years as Tazir.

6. According to section 324 of, the Criminal Law (Amendment) Act, 1997, if hurt is not caused in an attempt to commit Qati-i-Amd, the offender shall be punished with imprisonment which may extend to ten years and shall also be liable to fine and if burt is caused, he shall in addition to the imprisonment and fine as aforesaid, be liable to the punishment provided for the hurt caused.

7. The punishment provided under section 337-F (ii) of the Act ibid is payment of ' Daman' which is mandatory and the imprisonment for a term which may extend to three years as tazir, is discretionary and may be awarded according to the facts and circumstances of each case. Word 'Ta zir' has been defined in clause (1) of section 299 of the Act which means punishment other than Qisas, Diyat, Arsh or Daman.

8. Subsection (2) of section 337-N of the Act provides that notwithstanding anything contained in this chapter, in all cases of hurt, the Court may having regard to the kind of hurt, in addition to payment of Arsh, award 'Ta'zir' to an offender who is a previous convict, habitual or hardened desperate or dangerous criminal.

9. The bare reading of the above-stated sections i.e. 324, 337-F(ii) and 337-N(2) 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 fine under 'Ta'zir' and word 'shall' has been used making it mandatory in nature, whereas the punishments 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-abstante clause as "Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may" give it an overriding effect over all other sections providing punishment for hurt. Under this subsection the offender beside payment of Arsh may be awarded punishment of 'Ta'zir' who is previous convict, habitual or hardened desperate or dangerous criminal, There is nothing on the record to suggest that the petitioner is either a previous convict, habitual or hardened, desperate or dangerous criminal, therefore, in view of the above legal position, the petitioner who is no more required for further investigation is entitled to bail. Accordingly, this application is accepted. Ikramullah accused-petitioner is admitted to bail in the sum of Rs. 50,000 with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate. H.B.T./28/P Bail granted.