2014 PLP 1491 (YLR)

WAQAR AHMED SETH, J.

Noshad, petitioner involved in case F.I.R. No. 143 dated 5-12-2010 registered under sections 324/109/148/149, P.P.C., of Police Station Dobair, Pattan, seeks his release on bail, as his prayer for grant of bail has been turned down by the Courts below.

2. As per contents of F.I.R., the complainant charged the accused petitioner along-with other co-accused for attempting on his life with firing and thereby committed Qatl-e-Amd as a result of which the complainant sustained injuries on his right side of hip, hence the case was registered against him under the relevant sections of law.

3. Arguments heard and record perused.

4. A perusal of record would show that the injuries are on non-vital parts of the body. Although accused had been assigned a specific role but the injuries sustained by the complainant were on his right side of hip which fall under section 337-F(ii), P.P.C., entailing punishment of payment of 'Daman' and imprisonment which might extend to three years as 'Tazir'

Reading of sections 324, 337-F(ii) and 337-N(2), P.P.C. showed that the said sections did not supplement each other and rather were at variance from each other

Punishment provided under section 324 P.P.C. was imprisonment with fine under 'Tazir' and the word "shall" had been used therein, making it mandatory in nature, whereas the punishment provided for the offence of hurt was the payment of arsh or daman as the case might be, which was mandatory and the award of imprisonment of various terms without any fine had been left to the discretion of the court

Provisions of section 337-N(2), P.P.C. override section 324, P.P.C. and all other sections providing punishment for offences of hurt contained in the chapter--Section 337-N(2), P.P.C. began with the non obstante clause i.e. "notwithstanding" anything contained in his chapter in all cases of hurt, the court may, which clause gave it overriding effect over all other sections providing punishment for hurt, and under said section the offender besides payment of arsh might be awarded punishment of 'Tazir' if he was previous convict, habitual or hardened, desperate or dangerous criminal. That there is a delay of five hours in lodging the F.I.R. and no explanation thereof has been submitted by the complainant. The other co-accused have already been acquitted. The investigation in the case is complete and petitioner is no more required for the purpose of investigation. No doubt, petitioner remained absconder for a much longer period but where a case called for further inquiry into the guilt of an accused, bail was to be allowed to him as a matter of right and not by way of grace or concession. In the case of Ikram-ul-Haq v. Raja Naveed Sabir and others, reported in 2012 SCMR-1273, it has been held:-- "(b) Criminal Procedure Code (V of 1898) S.497(2)

Bail

Case of further inquiry

Abscondment of the accused

Effect

Where a case called for further inquiry into the guilt of an accused, bail was to be allowed to him as a matter of right and not by way of grace or concession--Bail was sometimes refused to an accused person on account of his abscondment but such refused of bail proceeded primarily upon the question of propriety, and whenever a question of propriety was confronted with a question of a right, the latter must prevail."

5. Nothing on record suggested that accused was a previous convict, habitual or hardened or dangerous criminal, therefore, the accused petitioner is held to be entitled to the concession of bail. The petitioner is behind the bars since the date of his arrest. In these circumstances, prima facie, the petitioner has made out a case for further inquiry.

6. Accordingly, the instant bail application is allowed and the petitioner is directed to be released on bail on furnishing of surety bonds in the sum of Rs. Thee Lac with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate concerned. HBT/632/P Bail granted.