1998 PLP 1528 (SCMR)

KHALIL-UR-REHMAN KHAN, J.

Haji Maa Din and Fida Hussain petitioners seek leave to appeal against the order, dated 9th March, 1998 of the learned Judge of the Peshawar High Court rejecting the bail petition filed by them in case F.I.R. No.1, dated 4-1-1998 registered at Police Station Choudhwan, D.I. Khan under sections 336/337-F(v)/34, P.P.C.

2. The prosecution case as per F.I.R. lodged by Muhammad Ayub complainant in injured condition is that he alongwith his brother Musa Khan was returning from their land on a Motoreycle and when they reached near the land of Abdul Rehman, the accused namely, Zaman son of Azim, Fida Hussain son of Zaman, Faizuddin and Maa Din sons of Ashiq, all armed with axes, except Fida Hussain who was armed with Danda, emerged at the scene and asked them to stop. The complainant stopped his motorcyle, Haji Maa Din gave him axe blow with which his two teeth were broken and fell down. Thereafter, Fida Hussain also gave him Danda blow hitting him on his right calf and so he fell down. Zaman and Faizuddid launched attack on Musa Khan causing him injuries on right arm and shoulder. The accused also gave him beating as a result of which he received injuries on different parts of body. The motive is the dispute about landed property and the occurrence was witnessed by Fazal Khan and Zaman son of Najib. It was alleged that during the, scuffle some amount and his wrist-watch were lost.

3. After arrest, all the four accused applied for bail firstly to the trial Court and then to the learned Sessions Judge, D.I. Khan unsuccessfully and so they approached the High Court, which granted bail to Zaman son of Azim, Faizuddin son of Ashiq but refused bail to the petitioners vide impugned order. The reason given is, "since from the axes/Danda blows two teeth of the complainant and his right knee--tibia and febulla had been injured/broken at the hands of accused-petitioners Haji Maa Din and Fida Hussain, therefore, their case at present is not arguable for the purposes of bail as, they are directly charged in the promptly lodged F.I.R. and the medical evidence supports the prosecution account, therefore, they are not entitled to the concession of bail". The other two accused, as were alleged to have caused simple injuries to Musa Khan, brother of complainant, were granted bail.

4. The allegations noted in the impugned order of the High Court are that the blow given by Maa Din resulted in breaking of two teeth, while Fida Hussain caused fracture of tibia and febulla bones of the right leg. The accusation in the F.I.R. is that Fida Hussain had given Danda blow on the right calf and not on the right leg.

5. Learned counser for the petitioners ha-% raised two ,basic questions:-- (1) Whether a person accused of an offence punishable with Qisas or in the alternative Arsh (Diyat) can be detained in prison awaiting decision of his case? and (2) Whether and when a person accused of an offence punishable with Qisas or in the alternative Arsh (Diyat) can be also punished with imprisonment?

6. In support of the first question it was argued that as imprisonment is not the ordinary sentence of the offence, punishment being Qisas or Arsh (Diyat), an accused cannot be detained in prison pending investigation or decision, as such a detention would amount to inflicting additional punishment of detention in jail in case he is ultimately .found not guilty and even if found guilty, he is either to receive the same hurt in Qisas or is to pay, the amount of Diyat or Arsh. Iii such a situation, it was argued that section 382-B, Cr.P.C. is also not attracted as in cases of offences punishable with imprisonment, the period spent in jail pending investigation or trial can be compensated by allowing benefit of reduction of the said period of detention under section 382-B, Cr.P.C. Learned counsel was, therefore, of the view that in such cases the accused cannot be detained in prison.

7. As regards authority to detain a person accused of an offence punishable with Hadd, Qisas or Diyat, reference may be made to the case cited by Abdul Kadir Audah with reference to Volume IV, page 117 in his book -- See its Urdu translation pages 206-207, which reads as under:-- It follows, therefore, that an accused can be detained in jail pending investigation or decision provided the dictates of Justice and public good so demand; hence refusal or grant of bail will be regulated by the Court in; accordance with the well-settled principles.

8. The second question need not be gone into in this case as this being a bail matter, it is sufficient to refer to section 337-N(2) of P.P.C. which provides, amongst others, the cases/circumstances in which punishment of imprisonment is to be awarded as Ta'zir. The factors to be seen for awarding Ta'zir punishment are the facts and circumstances of the case, the nature of the injury/hurt caused, the weapon used and the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience, or adversely affects harmony among different sections of the 1 people.

9. Coming to the merits of this case, it is to be noted that as regards Fida Hussain, petitioner' No.2, Medical evidence appears to be not in line with the allegations contained in the F.I.R. as Fida Hussain is alleged to have given Danda blow on right calf whereas the doctor found fracture of tibia and febulla bones. Again, according to F.I.R., Muhammad Musa, the brother of complainant, was alleged to have been caused injuries by Dandas whereas the doctor found one incised wound caused by sharp weapon and other scratches caused by blunt weapon. All these injuries were Simple and superficial. Thus, taking the prosecution case as a whole, in the light of the medical report, a case of further inquiry entitling Fida Hussain petitioner No.2 to be released on bail is made out. This aspect of the matter escaped the notice of the learned Judge of the High Court.

10. As regards Haji Maa Din, petitioner No. 1, the case is that injury was caused in scuffle. He is not alleged to be habitual or hardened, desperate or dangerous criminal or a previous convict. He has undertaken to face the trial and to be available to - receive the prescribed punishment in Qisas if the case is proved against him and if the same is waived to pay the requisite amount of Arsh which comes to be Rs.20,215.80 for the two teeth. It may be noted that Arsh for one tooth is 1 /20 of Diyat which is Rs.2,02,158 for the year 1997-98 as per Notification NO:SRO.505(I) of 1997 dated 3-7-1997 published in the Gazette of Pakistan, Part II on 7-7-1997 issued in pursuance of subsection (2) of section 323 of the P.P.C.

11. In view of above circumstances and the fact that the trial is yet to take some time to commence further detention of the petitioners Fida Hussain and Haji Maa Din would not serve any useful purpose, and it would be in fitness of things that they should be released on bail. This petition is, therefore, converted into appeal and allowed. Both the petitioners are allowed bail in the sum of Rs.1,00,000 each with two sureties each in the like amount to the satisfaction of Judicial Magistrate.

12. The petitioners were directed to be released on bail after converting this petition into an appeal vide our short order dated 24-4-1998 and these are the reasons therefore. N.H.Q./M-151/S Bail allowed.