' This is an application for grant of bail to Ghulam Fareed in a case under section 325/34 P.P.C.
Registered at Police Station Musafirkhana vide F.I.R No,61/88.
3. The prosecution case is that the petitioner and three others, in furtherance of their common intention, launched attack on Mst. Bheranwan, Muhammad Nawaz and Allah Rakha on 11-4-1988 in the area of village Hakra and caused them as many as 11 injuries including two grievous injuries, with their Sotas/Dangs.
As for the petitioner it has been alleged that he was armed with Sota and had caused injuries to.
Muhammad Nawaz. One of the injuries of Muhammad Nawaz was found grievous.
3. Learned counsel for the petitioner relied on Allah Rakha and 3 others v. State 1986 SCMR 842 to contend that the offence of causing grievous injury with all types of blunt weapons including Dangs/Sotas is punishable under section 325, P.P.C. And not under section 326, P.P.C. As held by this Court in a case Gulloo v. State 1986 P Cr. L J 700(2), that section 325, P.P.C. Does not fall within the prohibitory clause of section 497, Cr.P.C. As such grant of bail is a rule and refusal an exception.
4. Since the point raised by learned counsel for the petitioner is of great importance so I have thrashed it with the assistance of the learned counsel for the petitioner. In case Gulloo v. State it was held by me that Dang/Sota are instruments which, used as weapon of offence are likely to cause death, so the act of causing grievous injuries with them is an offence under section 325, P.P.C. Having carefully examined the relevant provisions of law and the case-law as well I do not see any justification to change my view point. The relevant provisions of law may be quoted conveniently:- Section 323. Punishment for voluntarily causing hurt.-- Whoever, except in the case provided for by section 334 voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 324. Voluntarily causing hurt by dangerous weapons or means.-- Whoever, except in the case provided for by section 334 voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 325. Punishment for voluntarily causing grievous 'hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend tb seven years, and shall also be liable to fine.
Section 326. Voluntarily causing grievous hurt by dangerous weapons or means.-- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
' Sections 323 and 325, P.P.C. Are almost verbatim. The language of section 324 and 326 is, almost identical. The word "or" used before as well as after the words 'any instrument which, used as weapon of offence, is likely to cause death' has to be read in disjunctive sense.
' An examination of the aforesaid provisions of law reveals that sections 323 and 325, P.P.C. Do not mention means by which hurt/grievous injury is caused. It is nowhere stated in the sections that whoever causes hurt/grievous injury with blunt weapon shall be punished with imprisonment mentioned therein. The sections simply say that whoever causes hurt/grievous injury shall be punished with imprisonment given therein. Whereas in sections 324 and 326, P.P.C. The emphasis is on the means by which hurt/grievous injury is caused. The sections specify weapons used for causing injury to the victim. It is thus very much clear that act of causing grievous injury by means or by weapons other than those mentioned in section 326, P.P.C. Would fall within the purview of section 325, P.P.C. For the application of section 326, P.P.C. It is the kind of weapon used for causing grievous injury which really counts. For the purpose of point under discussion, the words 'any instrument which, used as a weapon of offence, is likely to cause death' are of great significance.
The plain reading thereof shows that it is not necessary that the manner of the use of the instrument must be such as is likely to cause death. What is necessary to constitute offence under section 326, P.P.C. Is that the weapon whereby grievous injury is caused must be a dangerous weapon answering the description of instruments given in section 326, P.P.C. To bring the instrument within the category of the instruments mentioned at No,4 in section 326, P.P.C. i,e, 'any instrument which, used as a weapon of offence, is likely to cause death' it must be one of which one can predict that the probable result of its use will, by virtue of its very nature, be death. So the real question for consideration and determination is whether Dang/Sota/Lathi/Hathora are instruments which used as weapons of offence are likely to cause death. Dang/Sota/Lathi/Hathora being man-made articles, are instruments within the dictionary meaning of the word (instrument).
It has repeatedly been declared by the superior Courts of Pakistan that Dang/Sota are deadly/dangerous weapons.
' It is a matter of common experience that in a country like Pakistan, many murders, if not most are committed with Dang/Sota/Lathi/Hathora and in a number of cases the accused causing death with these weapons have been hanged till death. Furthermore having regard to the great frequency with which these weapons are used in a melee and often alight on head though not specially aimed at, and the still higher percentage of cases in which blow on the head with these instruments results in death of victim from fracture of skull, it can safely be said that Dang/Sota/Lathi/Hathora when are used as a weapon of offence, the death is likely to ensue. It can hardly be suggested that these instruments when used as weapons of offence are not likely to cause death. I am fully convinced that it is inherent in the nature of Dang/Sota/Lathi/Hathora that when used as weapons of offence, they are likely to cause death and as such it would be contrary to section 326, P.P.C. To say that these are not dangerous weapons or they do not answer the description of the instruments mentioned in section 326, P.P.C. For all these reasons the answer of the question posed above, must be in the positive.
5. With regard to the judgment of the Supreme Court 1986 SCMR 842 relied upon by the learned counsel for the petitioner, I find that the facts of that case are altogether different. In that case the injury in question was not caused by Dang/Sota/Lathi. The injury allegedly was inflicted by a hatchet, so the High Court convicted the accused under section 326, P.P.C. Under the impression that sharp side of the hatchet was used in causing the injury. The Supreme Court found that the injury in question was not caused by the sharp side of hatchet and the doctor had opined that the injury was caused by blunt weapon. So, observing that injury caused by blunt weapon was an offence under section 325, P.P.C. The Supreme Court converted the conviction of the accused/appellant from sections 326 to 325 P.P.C. It may be noted that the words used in section 326, P.P.C. i,e, `any instrument which, used as a weapon of offence, is likely to cause death' have neither been examined and discussed nor have been interpreted in that judgment. The judgment of the High Court in case Gulloo v. State wherein it has been held by me that the act of causing injury with Dang/Sota is an offence under section 326, P.P.C. Has neither been discussed, nor disapproved nor overruled by the Supreme Court in case Allah Rakha and 3 others v. State 1986 SCMR 842 or in any other case. Let me make it clear, lest I am misunderstood that in my earlier judgment in case (Gulloo v. State) I have nowhere observed that grievous injury caused by all types of blunt weapons is punishable under section 326, P.P.C. There may be cases in which persons causing grievous injuries with blunt weapons which used as a weapon of offence are not likely to cause death, e.g. Cane and small sticks etc., may be convicted under section 325, P.P.C. In case Gulloo v. State I have expressed my view with regard to the cases in which Dangs/Sotas are used as weapons of offence for causing injuries to the victim. I have clearly stated in that judgment that since Dangs and Sotas used as weapons of offence are likely to cause death, therefore, causing of grievous injury with them is punishable under section 326, P.P.C. And not under section 325, P.P.C. The petitioner has allegedly caused grievous injury with Sota to Muhammad Nawaz P.W.
In their statements recorded under section 161, Cr.P.C. The eyewitnesses mentioned in the F.I.R. Have supported the allegations against him, as such there are reasonable grounds for believing that the petitioner has committed an offence punishable under section 326, P.P.C. Falling within the prohibitory clause of section 497, Cr.P.C. For what has been said above, the petition is dismissed.
6. Before parting with the judgment I would like to observe that by laying down that an act of causing grievous injury with Dang/Sota/Lathi/Hathora is punishable under section 326, P.P.C. I have not changed the law relating to section 325, P.P.C. Or section 326, P.P.C. Nor have I any authority to do so. It is only an attempt towards correct interpretation as well as correct application of the provisions of sections 323 to 326, P.P.C. I sincerely feel that in the past, the police has wrongly been registering crimes of causing grievous injuries with Dang/Sota/Lathi/Hathora, under section 325, P.P.C. I expect that in future the persons breaking the bones or making the victim crippled by causing grievous injury/injuries with these weapons will be booked under section 326, P.P.C. And the cases of simple injuries caused by these weapons will be registered under section 324, P.P.C. The Inspector-General of Police, Punjab, Lahore will do the needful. .