' WAQAR AHMAD SETH, J.---Petitioner Uzair Javed seeks his release on bail in case F.I.R. No. 434 dated 28-11-2012 under sections 324/109, P.P.C. And section 13 of the Arms Ordinance registered at Police Station Nawanshehr Abbottabad, as he has been refused bail by the courts below.
2. As per contents of F.I.R., on 28-11-2012 complainant Gulzar Khan lodged a report against unknown culprit for effectively firing at Majid with pistol, as a result of which he sustained injuries on his neck and mid left shoulder. Later on accused petitioner was interrogated and who confessed his guilt.
3. Learned counsel for the petitioner argued that petitioner has not been charged in the F.I.R. And the alleged confession has been extracted by using third degree methods. It was argued that nothing incriminating has been recovered from the petitioner and there is no direct or circumstantial evidence to connect the petitioner with the crime. It was argued that petitioner is behind the bars since the date of his arrest and no useful purpose would be served if he is kept in jail for indefinite period waiting conclusion of trial.
4. Learned A.A.-G. Assisted by learned counsel for the complainant opposed the bail petition and contended that petitioner has committed heinous crime and voluntarily confessed his guilt, as such, does not deserve the concession of bail.
5. Arguments heard and record perused.
6. Although petitioner is not named in the F.I.R. But during investigation he voluntarily confessed his guilt but he is behind the bars since the date of his arrest. According to prosecution the petitioner never resorted to repetition and nothing incriminating has been recovered from the petitioner.
Moreover, there is no specific motive alleged behind the occurrence. 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 of neck and shoulder which according to the learned counsel for the petitioner falls under the kind of "jurh/jaifah", which in turn falls under section 337-B and C, P.P.C. Entailing punishment of payment liable to arsh, 1/3 of diyat and imprisonment which may extend to ten 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 B and C of the Act (ibid) is payment of "arsh, 1/3 of the diyat" which is mandatory and the imprisonment for a term which may extend to ten 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. The bare reading of the above stated section i.e. 324,337-B and C 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 offences 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 section (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 obstance clause 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 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 a not more required for further investigation is entitled to bail. According to the report of doctor, the complainant sustained superficial wounds on left cheek/neck with exit wound on left scapula with no damage to the vessels and with no fracture of any bone. The doctor has not opined the nature of injury which brings the case of petitioner within the ambit of further inquiry.
10. Petitioner is behind the bars since the date of his arrest and waiting conclusion of trial would serve no useful purpose. All these points make it a case of further inquiry and pending such inquiry, petitioner deserves to be released on bail.
11. Consequently, this bail petition is allowed and it is directed that petitioner be released on bail provided he furnishes bail bonds in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of learned Ilaqa/Duty Judicial Magistrate.