Shahid Raziq vs State

2012 P Cr. L J 1560 [Peshawar]

Before Waqar Ahmad Seth, J

SHAHID RAZIQ alias SHAHID---Applicant

Versus

THE STATE through Advocate-General and another---Respondents

Criminal Miscellaneous No.561-P of 2012, decided on 18th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Chapter XVI (Ss.299 to 338-H) & Ss. 324/34/337- F(ii)/337-N(2)---Attempt to commit qatl-e-amd, common intention, ghayr-jaifah-badiah, cases in which qisas for hurt shall not be enforced---Bail, grant of---Overriding effect of S.337-N(2), P.P.C. over all other sections providing punishment for hurt---Scope---Allegation against the accused was that he fired at the complainant as a result of which the latter got injured on his left thigh---Alleged motive for the occurrence was a family dispute---Contentions of the accused were that the injury was self-inflicted and this fact could easily be gathered from the medico- legal report; that no recovery of blood or crime empty had been made from the spot; that the injury was simple and on non-vital part of the body, and that the accused at the time of the occurrence was in the company of his friends and in this respect affidavits were available on record---Validity---Although accused had been assigned a specific role but had it been his intention to kill the complainant then there would have been a repetition of fire, which was not done---Injury sustained by the complainant was on his thigh, which fell under S.337-F(ii), P.P.C., entailing punishment of payment of 'Daman' and imprisonment which might extend to three years as 'Tazir'---Reading of Ss.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 S.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 S.337-N(2), P.P.C, overrode S.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 this 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 a previous convict, habitual or hardened, desperate or dangerous criminal--- Nothing on record suggested that accused in the present case was either a previous convict, habitual or hardened, desperate or dangerous criminal, therefore, the accused was entitled to bail---Accused was no longer required for further investigation---Bail petition of the accused was allowed and he was granted bail.

2008 SCMR 678 and 2011 YLR 2736 ref.

Mahmood Alam Khan for Applicant.

Akbar Zaman Khattak for Respondent No.2

Muhammad Imran for the State.

Date of hearing: 18th May, 2012.

JUDGMENT

WAQAR AHMAD SETH, J.---Petitioner has applied for bail in case F.I.R. No.205 dated 25-3- 2012 under section 324/34, P.P.C. at Police Station, Faqirabad, Peshawar.

2.As per contents of F.I.R., the complainant/respondent No.2 on 25-3-2012 at 22.45 hours reported the matter to the local police at casualty L.R.H. Peshawar, that while he was present on

the spot when accused/petitioner along with Tariq Raziq came and the petitioner pulled out his pistol and fired at him as a result of which he got injury on his left thigh. Motive for the occurrence was stated to be a family dispute, hence F.I.R. was registered.

3.Learned counsel for the petitioner contended that accused/ petitioner has been falsely implicated in the instant case as the alleged injury is self-inflicted and this fact could easily be gathered from the Medico-Legal Report coupled with the fact that no recovery of blood or crime empty has been made from the spot and there are charring marks; that even otherwise the injury is shown simple and on the non-vital part of the body; that the accused/petitioner on the relevant time was in the baithak of his friend and in this respect Affidavits are on record.

4.As against this, learned counsel for the complainant assisted by the State contended that accused/petitioner is directly charged in a promptly lodged F.I.R. and there is no misidentification and no mala fide have been shown to falsely implicate the accused/petitioner; that the site plan coupled with Medico-Legal Report prima facie support the prosecution version; that the fact there was no injury on the sensitive/vital part of the body of the injured, would not bring the case out of purview of the prohibitory clause of section 497(1), Cr.P.C. to claim the bail as a rule, in this respect, relied on 2008 SCMR 678 and 2011 YLR 2736.

5.Arguments heard and record perused.

6.No doubt, the accused/petitioner has been assigned specific role but had it been the intention to kill the complainant then there would have been a repetition of fire, which is lacking in the instant case. Moreover, as per medical report the complainant sustained the injury on the left thigh/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.

7.According to section 324 of the Criminal Law (Amendment) Act, 1997, if hurt is not caused in an attempt to commit Qatl-e-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.

8.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.

9.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.

10.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 offence 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.

11.In view of the above, this petition is allowed and the petitioner Shahid Khan is granted bail on furnishing bail bonds in the sum of Rs.3,00,000 with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate.

Above are the reasons of my short order of even date.

M.W.A./212/P Bail allowed.