1998 P Cr (PLP)

Date of hearing: 6th June, 1997. Bail is sought in F.I.R. No.57, dated 8‑1‑1997 of Police Station Banna Allai in a case registered on the complaint of Zabita Khan son of Murad under section 337‑iii/337‑F(v)/34, P.P.C.

2. The complainant while in injured condition made a report at 17‑45 hours on 8‑1‑1997 wherein he has charged present petitioner namely Rahdar and his two sons Muhammad Niqab and Muhammad Nisab for causing injuries on his person. The present petitioner was attributed a blow with axe while Muhammad Niqab, a blow with Lathi whereas Muhammad Nisab having beaten him by giving fist and leg blows. The two co‑accused Muhammad Nisab and Muhammad Niqab are on bail whereas the prayer for bail of the petitioner was rejected by the Senior Civil Judge/Judicial Magistrate on 7‑3‑1997 while the order of learned Sessions Judge refusing him bail is dated 27‑3‑1997.

3. Learned counsel for the petitioner submitted that in the report one Muhammad Ullah had been named as one of eye‑witnesses who when examined by the police has shown his total ignorance about the occurrence. It was next argued that in the report Muhammad Niqab has been attributed leg and fist blow which allegation has not been supported by P.W. Firdaus, a real brother of the complainant nor this version finds support from the medical evidence. It was next contended that according to the medical report the injuries on the person of the victim are caused with blunt weapon. Lastly it was submitted that section of. law of which the accused stands charged the punishment prescribed would be under section 337‑A(iii) which is "Arsh" i.e. 10% of the Diyat and in the second part of the punishment is described which may extend to 10 years as Tazir is discretionary with the Court.

4. Learned State Counsel argued that it is daylight occurrence. There is no question of mistaken identity. The injury is caused on the vital part of the body namely, head, causing fracture of occipital bone as appear from the X‑ray report and as such the petitioner is not entitled to bail.

5. I have heard the arguments of the learned counsel for the petitioner and the State as well the complainant who was present in Court and stated that he does not want to engage a counsel and would feel satisfied with the arguments of the learned counsel for the State.

6. The complainant has named Muhammad Ullah as one of the eye witnesses who has not supported him. Similarly, role of Muhammad Niqab is not supported by the real brother of the complainant namely, Firdaus while being examined by the police. The injury caused has been opined to be the result of blunt weapon. Irrespective of these facts, the medico‑legal and X‑ray reports' show that there was fracture of occipital bone and also of left fibula (left leg). The leg injury is attributed to Muhammad Niqab who is on bail while the one on head is said to had been caused by the petitioner. Section 337 of the P.P.C. deals with "Shajjah" and prescribe different categories. As there was fracture of occipital bone as such the injury caused appears to be covered by section 337(1) (iii) the punishment whereof has been provided under section 337‑A(iii), Shajjah‑i‑Hashimah" which is reproduced as under:‑‑ "337‑A. Punishment of Saiiah.‑‑‑ Whoever, by doing any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, causes‑‑‑ (i) . (ii) (iii) Shajjah‑i‑Hashima to any person, shall be liable to Arsh which shall be ten per cent of the Diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as Ta' zir. "

7. Bare reading of the section shows that person found guilty of an offence be liable to Arsh and may also be punished with imprisonment of either description which may extend to 10 years as Ta'zir. Relying on Zulfiqar v. State 1994 PCr.LJ 2285 a learned Judge of this Court has taken the view that the intention to cause a particular injury has to be determined at the trial. As in the instant case, the petitioner is not alleged to have repeated the blow which behaviour, prima facie shows that he has neither acted in unusual nor cruel manner. The case of the petitioner being covered under section 497(2), Cr.P.C. on tentative appraisal of record will make a case of further inquiry. This application is allowed subject to the petitioner's furnishing bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Senior Civil Judge/Judicial Magistrate, Batagram. The sureties should be men of means and local. N.H.Q./2196/P Bail allowed.