1. There are two applications, one for bail filed by Karam Ellahi petitioner and the other filed by Mohammad Niaz complainant for the cancellation of bail granted to Allah Bakhsh and Ghulam Haider. Since both these applications arise from the same F.I.R. And the facts/law involved in both of them are alike, therefore, 1 propose to dispose of both by this common order.
2. 2.Karam Ellahi along with his co-accused Allah Bakhsh and Ghulam Haider applied for bail in case FIR, No.633 dated 31-8-1991 Police Station, Haripur under sections 34/34 of Criminal Law (Amendment) Ordinance, 1991 in the Court of Magistrate Lt Class, Haripur who vide his order dated 15-9-1991 allowed bail to Allah Bakhsh and Ghulam Haider but refused the same concession to Karam Ellahi. Thereafter the complainant moved the Court of Additional Sessions Judge, Haripur for the cancellation of bail granted to Allah Bakhsh and Ghulam Haider, while Karam Ellahi applied before the same Court for his release on bail. The learned Additional Sessions Judge vide his separate orders dated 28-9-1991 rejected both the applications. Hence Karam Ellahi has approached this Court for his release on bail vide Cr.M.No.180/91 whereas Mohammad Niaz complainant has filed Cr.M.No.182/91 for the cancellation of bail granted to Allah Bakhsh and Ghulam Haider.
3. 3.The brief facts of the case are that on 31-8-1991 Mohammad Niaz complainant was cutting grass in his fields when Karam Ellahi, Ghulam Haider apd Allah Bakhsh came there and told him that the land belonged to them. Ghulam Haider asked Karam Ellahi to kill the complainant who (Karam Ellahi) took -out a `Chhuri' from his trousers fold, Allah Bakhsh caught hold of the complainant while Karam Ellahi gave him blow with `Chhuri' on his chest with which he got injured, with the second blow he was injured on his left arm. On his noise Shaukat and Khan Bahadur came there and rescued him. The motive for the offence was the dispute over the property.
4. 4.The learned counsel for the petitioner in Cr.M.No.180/91 contended that .The petitioner is an old man of 70/71 years of age and has been falsely charged by the complainant for having injured him.
5. It is improper and against. The traditional norms that the young man (Ghulam Haider) would command the elderly person (Karam Ellahi) and ask him to kill the victim. He further contended that the injuries sustained by the complainant are simple in nature and fall under the second part of section 324 wherein it is provided that if hurt is caused the offender shall be liable to punishment provided for the hurt caused. The nature and type of hurt caused fall under section 337E(2)(b) for which the offender shall be liable to `daman' and may also be punished with imprisonment of either description for a term which may extend to three years as `Tazir'. The learned counsel argued that the offence does not fall under the prohibitory clause, therefore, the petitioner is entitled to be released on bail. He referred to section 307, P.P.C. And compared it with section .324 of the Criminal Law (Amendment) Ordinance, 1991 and argued that there is no such difference between the old and the new sections as far as Part I is concerned but there is a significant change in the Part II. In the old section 307, P.P.C. The punishment for the hurt caused was imprisonment for life but in the new section 324 of the Criminal Law (Amendment) Ordinance, 1991 the punishment for the hurt caused would depend upon the nature and kind of hurt for which different punishments have been provided. It is contended that the injury according to the doctor's report would be `Badiah' and would fall under clause (b) subsection (2) of section 337-E, the punishment for which is given in section 337-F(ii) as 'Daman' and imprisonment for 3 years as `Tazir'. According to him the punishment is only 'Daman' and it is in the discretion of, the Court to impose the imprisonment for a term which may extend upto 3 years as `Tazir'. So in any case the offence according to him does not fall under the prohibitory clause, as such the accused-petitioner is entitled to bail.
6. 5.The learned counsel for the complainant opposed the contentions of the learned counsel and argued that section 324 provides both the punishments as are given in Part I and Part II. Part I provides 10 years and in case of hurt additional punishment has to be awarded keeping in view the kind of hurt caused. He argued that the offence does fall within the ambit of prohibitory clause and the accused in the present case is not entitled to be released on bail., 6.While arguing the application for cancellation of bail against Allah Bakhsh and Ghulam Haider, he submitted that they both are responsible for vicarious liability as they facilitated the commission of offence by catching hold of the Complainant and providing opportunity to the assailants to inflict dagger blows on him. Therefore, the bail allowed to the two respondents is also liable to be re- called.
7. 7.The learned Assistant Advocate-General opposed the bail application but with regard to bail cancellation he submitted that the discretion exercised by the lower Court seems to be proper, therefore, the same does not warrant interference.
8. 8.I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
9. 9.It would be appropriate to reproduce old section, 307, P.P.C. And new section 324 of the Criminal Law (Amendment) Ordinance 1991 for comparative study hereunder:--
307. Attempt to murder:- 324. Attempt to commit Qatl-i-amd-- Whoever does any act with such intention or knowledge and under such circumstances that, if he that act sauced death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and , if hurt is caused to any person by such act, theWhoever does any act with such intention or knowledge, and under such circumstances, that if he by that act caused Qatl he would be guilty of Qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by offender, shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.such act, the offender shall be laible to the punishment provided for the hurt caused.
10. It would be seen that in Part I of the new section for the word `murder"Qatl-i-amd' has been used and for `death"Oatl' has been substituted; the rest of the phrase is the same. In Part II of old section the offender was liable to life imprisonment for the hurt caused, whereas in the new section the offender shall be liable to punishment for the hurt caused, depending on the kind of hurt, the details of which have been given in other sections of the Ordinance. .
11. 10.In this case the medico-legal report of Mohammad Niaz complainant would show that he received incised wound 1-1/2" x 1/4" x muscle deep on the lateral side of the left upper arm, incised wound 1" x 1/4" x muscle deep on the chest, 2-1/2" medial to left nipple, and an abrasion 1/4" x 1/4" on the palm of the left hand. This kind of injuries would fall within the definition of `Bali `ah', the punishment provided thereof is 'Daman' and imprisonment which may extend to three years as `Tazir'.
12. 11.In my view the offence would fall, under second part of section 324 of the Criminal Law (Amendment) Ordinance, 1991 which in turn would fall under section 337-E, subsection (2) (b) and punishment for which is provided under section 337-F clause (ii). The offence does not fall under the prohibitory clause, therefore, the application for bail is allowed, the petitioner is admitted to bail in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.
13. 12.As far as application for cancellation of bail against the 'two respondents in concerned they have been attributed the proverbial role and it would be seen at the trial whether they are vicariously liable for the offence or not. Hence this application is rejected.