1998 P Cr (PLP)

4. In the report the complainant has assigned not only the specific role of inflicting blows by each of the accused but also the part of the body, where each blow has landed.

5. The injured were referred to doctor for treatment and Medical Officer.

6. Application for bail was initially moved in the Court of Judicial Magistrate, Haripur, who vide order, dated 21‑3‑1997 allowed bail to both the accused namely Naseer Ahmed and Safeer Ahmed.

7. Complainant moved application under section 497(5), Cr.P.C. for the cancellation of bail in the Court of Sessions Judge, Haripur, who, vide order, dated 15‑5‑1997 partially accepted the application and cancelled the bail of Naseer Ahmed only.

8. Learned counsel for the petitioner submitted that there was no previous enmity, the occurrence took place all of a sudden, that too on very trivial matter, the complainant could not give details of injuries, there was delay in making the report and lastly that offence for which the petitioner stands charged does not fall within prohibition as embodied in section 497, Cr.P.C.

9. Learned counsel for the State and the complainant argued, that report is promptly lodged, there is no reason for false charge, and as the injuries attributed to the present petitioner have caused dislocation of bone of complainant, hence, the punishment provided under section 336, P.P.C./Qisas and Diyat Ordinance being upto ten years would disentitle the accused to concession of bail.

10. After hearing the arguments of both sides, and without making detailed observations in respect of merits of the case, viz. delay in F.I.R., absence of enmity, specification of each injury etc. I would confine to my this order only to such facts which shall not affect the case at trial. Section 336, P.P.C. provides punishment for "Italf‑i‑Salahiyyat‑i‑udw" which is defined in section 335, P.P.C., which is in the following words:‑‑ "

335. Itlaf‑e‑Salahiyyat‑i‑udw. whoever destroys or permanently impairs the functioning power of capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause Itlaf‑i?Salahiyyat‑i‑udw. " There are five persons in all, who have received injuries. Except the‑complainant all injuries to others, have been attributed to Safeer Ahmed, who is on bail and no cancellation is filed against him. The complainant has received one such injury which necessitated taking of X‑Ray whereafter doctor opined that there was dislocation of lumber scarf joint. The question whether the dislocation will fall under section 336, P.P.C. or section 337‑E(vi), P.P.C. or under the residuary section of law which is section 337‑L, is to be determined at trial. When no definite opinion can be formed as to the nature of offence the accused is charged with, or the section of law applicable, the proper course is to be inclined to a section which favours the accused. As in this case no doubt there is dislocation of joint but it is not sure, even tentatively that, even in case of conviction, the accused will be held guilty under which section of law. This uncertainty of possible section of law which should ultimately apply the case, makes the case of further inquiry, the benefit of which goes to the accused at bail stage. This application is accepted, accused petitioner is allowed bail, provided he furnishes bail bond in the sum of Rs.1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Judicial Magistrate, Haripur. N.H.Q./2195/P??????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.