Petitioner Bakhshu seeks bail after arrest in Case FIR No, 57/2007 dated 17.7.2007 under Sections 324, 337-AIL 337-AIII, 337-F3, 337-F5, 337-Fl, 148, 149 PPC registered at Police Station Harrand District Jampur.
2. Precisely the specific allegation against the petitioner is that he caused hatchet injuries on the head of Nabi Bakhsh PW and the complainant, out of which one injury resulted in fracture of skull by using sharp side of hatchet.
3. It is contended by learned counsel for the petitioner with reference' to sub-section (2) of Section 337-N PPC that all substantive punishments provided in all the hurt cases is either "Arsh" or "Daman" and the punishments of sentence of various terms provided with the hurt cases under this Chapter are left at the discretion of the Court, therefore, the substantive sentence being only "Arsh" in the case under Section 337-Aiii PPC case of the petitioner falls outside the boundaries of prohibitory clause of Section 497 Cr.P.C. It is also submitted that sub Section (2) of Section 337-N PPC has an overriding effect on account of the fact that it contains non-obstante clause.
According to the learned counsel sentence of imprisonment can only be awarded under the hurt cases to the categories of criminals mentioned in sub-section (2) i,e, previous convict, habitual or hardened, desperate or dangerous criminal or offence committed on pretext of honour and none else. Those who do not qualify the test of above categories cannot be punished for imprisonment.
In this behalf he relies on 1999 P.Crl.LJ 230 and 2007 M LD 1067.
4. On the other hand, learned Additional Prosecutor General has supported the arguments advanced by the learned counsel for the petitioner.
5. Mian Abbas Ahmad, Learned Additional Advocate General has been kind enough to dilate upon the issue. He submits that subsection (2) of Section 337-N PPC is not to be read in isolation of its proviso. According to him sub-section (2) has been enacted to specially deal with the categories of criminals mentioned in the said sub-section and it has no application for the other ordinary offenders. According to him in the main sub-section (2) the sentence has not been provided for the categories mentioned in this sub-section and by adding the proviso the amount of sentence has also been provided i,e, not less than one-third of the "already provided" sentences for the respective hurts.
6. I have considered the arguments of the learned counsel for the parties.
7. In order to resolve the controversy it would be advantageous to reproduce Section 337-N(2) and Section 337-Aiii PPC:-- Section 337-N(2) PPC: "Notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is previous convict, habitual or hardened desperate or dangerous criminal [or the offence has been committed by him in the name or on the pretext of honour] [Provided that the ta'zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the nape or on the pretext of honour.] Section 337-A(iii).
Punishment of Shajjah. 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-hashimah 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."
8. Apart from Section 337-I the rest of the hurt cases mentioned in Chapter XVI relating to hurts provide punishment of either "Diyat", "Arsh" and "Daman" but as "Ta'zir" certain sentences of imprisonment are also provided in the respective kinds of hurts. The non-obstante clause of sub- section (2) of Section 337-N (notwithstanding anything contained in this chapter, in all cases of hurt,) brings out the cases of categories of criminals mentioned in this sub-section but of the Ordinary criminals and are to be dealt in accordance with this provision. Meaning thereby that all other types of criminals have been left out by this nonobstante clause to be dealt according ,to the respective hurt case. By adding proviso through Criminal Law Amendment Act, 2004 (I of 2005) to sub-section (2) and repeating the categories in the proviso as well by providing minimum sentence from the already provided sentence for respective hurt it makes the case further clear that this clause is specifically designed only for the outegories mentioned in this clause and not for any other ordinary criminal.
9. If for the sake of argument contention of the learned counsel for the petitioner is accepted to be true interpretation, the result would be that no offender causing any type of hurt can be sentenced to imprisonment unless he falls within the category of sub-section (2) of Section 337-N PPC. For example, if a man out of rage for the first time chops of hands and legs of a person he can only be sentenced under Section 334 PPC and if "Qisas" is not executable then he is only liable to pay "Arsh" and no punishment as provided in Section 334 PPC of 10 years can be imposed upon him because he is neither a previous convict nor habitual, hardened, desperate or dangerous criminal. This interpretation in my view cannot be accepted.
10. Looking from another angle it is to be observed that in second schedule of the Cr.P.C. particularly, in hurt cases in Column No, 5 some cases are bailable and some are non-bailable keeping in view the gravity of hurt and sentence provided. Had the intention of the legislature been that sentence is only Arsh and Daman in hurt cases then in the schedule it was not required to differently treat different types of hurts as bailable or non-bailable. It is thus obvious that along with Arsh sentence of imprisonment for various hurts to various lengths is provided but the discretion is left with the Court to award punishmen t of imprisonment commensurate with the gravity of offence to various terms within the prescribed limit.
11. Having all respect to the judgments cited by the learned counsel for the petitioner it is to be observed that proviso to sub-section (2) of Section 337-N PPC was added through Criminal Law Amendment Act, 2004 (I of 2005) dated 10.1.2005. Judgment reported as 1999 P.Crl.LJ 230 was delivered before the introduction of the Proviso while judgment reported as 2007 M LD 1067 has merely followed the earlier judgment without considering the effect of Proviso, which was not brought into the notice of his lordship.
12. For the purposes of grant of bail learned Addl. P.G has opposed this application.
13. Coming to the merits of the case according to the allegations contained in the FIR petitioner had caused hatchet injuries on the head of Nabi Bakhsh PW and the complainant, out of these two injuries one injury resulted in fracture of skull caused with hatchet using its sharp side. In this view of the matter, offence falls within the prohibitory clause of Section 497 Cr.P.C., therefore, I don't find any merit 'in this application which is accordingly dismissed.
14. Before parting with the judgment I would like to place on record my thanks to the learned counsel, learned APG and the learned amicus curiae Mian Abbas Ahmad, Addl. A.G. for rendering valuable services.