' MUHAMMAD JUNAID GHAFFAR, J.---Through instant bail application, the applicant seeks bail in Crime No,89/2013 registered at Police Station Johi District Dadu under sections 324, 114, 147, 148, 149, P.P.C. The earlier bail application filed by the applicant/accused before the trial Court was dismissed vide order dated 28-11-2013, hence the instant bail application.
2. I have heard learned counsel for the applicant and learned A.P.G. None has appeared on behalf of the complainant in the instant matter despite service of notice. My observations are as follows:--
(i) The application of the applicant/ accused has been dismissed by the trial Court merely on the ground that crime in the instant matter was punishable under section 336, P.P.C. And provides punishment for 10 years hence falls within the prohibitory clause of Section 497, Cr.P.C. However, on perusal of Section 336, P.P.C., it appears that it relates to itlaf-i-salahiyyat-i-udw and provides that whoever, by doing any act with the intention of causing hurt to any person, or with the .Knowledge that he is likely to cause hurt to any person, cause itlaf-i-salahiyyat-i-udw of any person, shall, in consultation with the authorized medical officer, be punished with qisas and if the qisas is not executable keeping in view the principles of equality in accordance with the injunctions of Islam, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a terms which may extend to ten years as tazir. On perusal of this section, it transpires that the punishment under section 336, P.P.C. Is by way of payment of Arsh or Daman and additionally the Court may award Tazir to the offender: Awarding Tazir would be governed by the provisions of subsection (2) of section 337-N, P. P. C . Which provides that notwithstanding anything contained in this Chapter in a case of hurt, the Court may, having regard to the kind of hurt caused by an offender in addition to payment of Arsh, award Tazir to an offender who is a 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. Therefore, the primary punishment provided for under section 336, P.P.C. Is by payment of Arsh and Tazir can only be awarded if the offence falls within the provisions of subsection (2) of Section 337-N, P.P.C., as stated above. Insofar as the instant matter is concerned, both these conditions, at least at this stage of the case have not been satisfied and rather would only be brought at the time of evidence that whether or not the applicant/ accused could be awarded a sentence as Taazir in terms of section 336 read with 337(2), P.P.C., which falls within the prohibitory clause of Section 497, Cr.P.C, In this respect a larger Bench of the honourable Lahore High Court in the case of All Muhammad v. The State reported in PLD 2009 Lahore 312 has already decided the issue in hand and the relevant part thereof (pg:332 Para 11) is hereby reproduced as under:-- "In view of what has been discussed above we have entertained no manner of doubt that in all cases of hurt provided for in Chapter XVI of the Pakistan Penal Code, 1860 the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment as Ta'zir provided for the relevant offence can be awarded to an offender only where the offender "is a 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" and in the case of such an offender the sentence of imprisonment as Ta'zir is not to be less than one-third of the maximum imprisonment provided for the hurt caused. This, to us, is the only interpretation of the provisions of subsection (2) of section 337-N, P.P.C. As they stand today and if the legislature intends otherwise then it may suitably and appropriately amend the relevant provisions."
' Needless to state that at the time of considering the bail application, the lesser of the two punishments which could be awarded to an offender is to be considered hence in the instant matter, the alleged crime does not fall within the prohibitory clause as observed by the trial Court.
(ii) In this matter there is also a counter case amongst the same parties and the applicant and his companions being complainant have registered another FIR bearing No,90/2013 in respect of the same incident wherein they have alleged that the complainant party in the instant matter had used weapons and have also injured the present applicant and his companions. The learned trial Court while granting interim pre-arrest bail to the accused in Crime No,90/2013 had considered the issue of Counter version and had observed that there is old enmity between the parties and both had registered FIRs against each other and therefore, it is yet to be determined that which party is the aggressor and who had acted in self defence. However, while refusing the bail in the instant matter, the learned trial Court did not appreciate this aspect of the case in so far as the present applicant is concerned. The case of the applicant was required to be decided in the light of the guidelines settled by the Honorable Supreme Court in the case of Shoaib Mehmood Butt v.
Iftikharul-Haq and 3 others reported in 1996 SCMR 1845.
(iii) In the FIR the complainant has stated that incident had occurred at 1300 hours (1-00 P.M) whereas in the provisional medico-legal certificate dated 16-8-2013, it has been stated that injured Khan Muhammad was brought to the Hospital and the matter was reported through police letter No,1450/2013 dated 15-8-2013 and in this report the time of incident is reported at 12-15 p.m. And the arrival of the injured is stated as 1-10 p.m. This provisional medico-legal certificate has been relied upon by the complainant in the instant matter as the alleged injury was caused to Khan Muhammad by the present applicant/accused as disclosed in the FIR. However, it does not appeal that as to how the injured was brought to the Hospital along with a police letter within a period of 10 minutes as the incident reported in the FIR is of 1300 hours. (1-00 p.m.) and the injured was brought to the Hospital at 1-10 p.m. In view of such position, there is contradiction in the ocular evidence as compared with the medical evidence so heavily relied upon by the complainant.
(iv) Though the FIR has been lodged under section 324,. P.P.C. But the learned trial Court while granting bail to other co-accused in the instant matter has observed that same is not applicable as it is yet to be determined that whether or not this Section was applicable and would only be determined at the time of trial. Without prejudice, even if Section 324, P.P.C. Is applicable to the case of applicant then again it is the matter which is to be determined at the trial and further the punishment provided therein does not fall within the prohibitory clause.
(v) As per the contention of learned A.P.G. The police only recovered eight empties but till date no weapon has been recovered. It is also not clear that as to whether such empties which were recovered were in fact of the weapon allegedly used by the present applicant.
3. It would not be out of place to mention that grant of Bail is a rule; whereas refusal is an exception and bail cannot be withheld as a punishment. In view of hereinabove, I was convinced that in the instant case there were sufficient grounds for further enquiry and the case of the applicant/accused was covered under section 497(2), Cr.P.C. Consequently the applicant/accused had made out a case for admission to bail and by means of a short order, I had granted bail to the applicant/ accused on furnishing surety of Rs,200,000 (Two lac) with P.R. Bond in the like amount to the satisfaction of the trial Court. These are the reasons in support of said short order.
4. The above bail order has been passed by me in a shorter format prescribed by the Honorable Supreme Court vide its order dated 20-3-2014, passed in Criminal Petition No,203-L of 2014, whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned counsel for the applicant as well as learned A.P.G.