1999 P Cr (PLP)

Maazullah Barkandi for Petitioner. Muhammad Azam Khan, A.‑G., N.‑W.F.P. for the State. Date of hearing: 3rd April, 1998. . Aurangzeb accused‑petitioner facing prosecution in case F.I.R. No.49, dated 5‑4‑1997 registered in Police Station, Chitral under section 324/34, P.P.C. read with section 19 Arms Act, has applied for his release on bail to this Court. After the arrest of the accused‑petitioner, his bail application was rejected by the learned S.D.M. vide his order dated 22‑4‑1997 and also by the learned Sessions Judge, Chitral on 13‑5‑1997 while co‑accused were allowed bail by the same order. Thereafter, he applied for bail to Aala Illaqa Qazi/Senior Civil Judge, Chitral on fresh ground which was allowed to him on 17‑7‑1997. The complainant dissatisfied with the order dated 17‑7‑1997, applied to the Court of Zilla Qazi/Sessions Judge, Chitral for cancellation of the bail granted to the accused‑petitioner, which was accepted and the bail was recalled on 24‑9‑1997. Hence the present bail application.

2. According to the F.I.R. lodged by Muhammad Nabi Khan complainant in an injured condition, on the day of occurrence at 1530 hours he was constructing boundary walls in his lands, in the meantime Aurangzeb and his sons Niyab, Rashid lqbal, Shafiq and Ihadur Rehman came and started dismantling the boundary wall. The complainant restrained them from doing so, whereupon petitioner asked his son Ibadur Rehman to bring the gun who brought the same and handed over to his father. The petitioner fired at the complainant, as a result of which he was hit on his both the legs. Rashid lqbal, Shafiq and lbadur Rehman started pelting stones on him. The occurrence was witnessed by Habib Ullah Khan, Lai Shah, Sharif and Nisar. They also brought about separation between the parties. Motive for the occurrence was stated to be the dispute over the boundary wall.

3. I have heard the learned counsel for the parties and have perused the record of the case with their assistance.

4. As per medical report the complainant sustained the injuries on the lateral side of left leg and mid side of right leg, 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.

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

6. The punishment provided for the kind of hurt 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 ' Tazir' has been defined in clause (1) of section 299 of the Act (ibid) which means punishment other than Qisas, Diyat, Arsh or Daman.

7. 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 Tazir to an offender who is a previous convict, habitual or hardened desperate or dangerous criminal.

8. 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 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 beside payment of Arsh may be awarded punishment of Tazir 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 not more required for further investigation is entitled to bail. Accordingly, this application is accepted, and the accused petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs. one lac with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate. Sureties must be local and men of means. N.H.Q./130/P Bail allowed.