This application for bail by one Pasham Khan is an off-shoot of a case under section 307/34, P.P.C.
Which was registered against him and his co---accused Muhammad Rafiq and Bashir Ahmed at the behest of Faqir Ahmed at Police Station Madyan (Swat) vide F.I.R. No. 193 dated 18-9-1994.
2. The F.I.R. Discloses that on the eventful day at about 11-45 a.m. While a dispute between the complainant and the accused over certain property was being resolved by a Riga the parties lost temper and during the ensuing altercation the accused opened fire from pistols at the complainant who sustained injuries on his hip and right hand as a result of firing made by the petitioner.
3. At the outset the learned counsel for the petitioner severely criticised the police for registering the case under section 307/34, P.P.C. Instead of the common Islamic Law relating to Jurh (hurt). His contention was that having been declared repugnant to the Injunctions of Islam by the Shariat Appellate Bench of the Supreme Court of Pakistan section 307, P.P.C. Had become non--existent, therefore, 'notwithstanding the non-extension of Qisas and Diyat Ordinance to the Malakand Division the case ought to have been registered under the Islamic Injunctions pertaining to hurt in view of the guidelines given in another judgment of the Shariat Appellate Bench of the Supreme Court, reported as Federation of Pakistan and another v. N. W. F. P. Government and others (PLD 1990 Supreme Court 1172), wherein it was held that in a state of vacuum the common Islamic Law shall be deemed to be the law on the subject. It was next contended that the offence allegedly committed by the petitioner was not hit by the prohibitory limb of section 497, Cr.P.C. As the complainant had not sustained hurt on any vital part of his body.
4. On the other hand, the learned counsel appearing for the State vehemently resisted the application on the grounds that Qisas and Diyat Ordinance had not so far been extended to the Malakand Division and the intention of the petitioner to launch murderous assault on the complainant was obvious from the kind of weapon used by him for the purpose, therefore, the offence committed by him squarely fell within the ambit of section 307, PY.C. Which already stood extended to the Malakand Division.
5. The contentions raised by the learned counsel for the petitioner have substance. The Pakistan Penal Code was extended to Dir vide West Pakistan Regulation II of 1961 Dir (Extension of Laws)
Regulation, 1961 and to Chitral and Swat vide Regulation I of 1971 Tribal Areas (Application of Laws)
Regulation, 1970 which have not been repealed so far. It is a matter of common knowledge that the Shariat Appellate Bench of the Supreme Court in Federation of Pakistan v. Gul Hassan Khan (PLD 1989 SC 633) had declared the offences against human body incorporated in sections 299 to 338 of the Pakistan Penal Code as repugnant to Injunctions of Islam and the decision was to take effect on 23rd March, 1990. However, when the requisite law was not framed and enforced a review petition was filed and the Shariat Appellate Bench of the Supreme Court of Pakistan in its judgment reported as Federation of Pakistan and another v. N. W. F. P. Government and others (PLD 1990 SC 1172) not only observed that the said decision of the Supreme Court shall take effect on 12th day of "Rabi-ul-Awwal 1411 A.H ", but also held that even if the required law is not enacted or enforced by the target date the provisions of the Pakistan Penal Code declared as repugnant to the Injunctions of Islam shall cease to have effect and the vacuum shall be filled in by the common Islamic Law.
The Qisas and Diyat Ordinance was duly promulgated whereby section 307, P.P.C. Was substituted by section 324, P.P.C. However, as it has not been extended to the Malakand Division so for the vacuum caused by the deletion of section 307, P.P.C. Shall be filled by the common Islamic Law. The case giving rise to this petition shall, therefore, be deemed to have been registered under the common Islamic Law relating to hurt. It will be pertinent to point out that before the promulgation of Qisas and Diyat Ordinance the common Islamic Law on the subject was not properly codified but now the problem has been solved and the Courts are in a position to administer Islamic Law with utmost facility. It appears that the problem still subsists m Malakand Division and for this very reason perhaps the cases are being registered under those sections of the Pakistan Penal Code which stand deleted having been declared repugnant to the Injunctions of Islam by the Shariat Appellate Bench of the Supreme Court of Pakistan. No words are strong enough to deprecate this illegal and unsavoury practice. Be that as it may, as long as the Qisas and Diyat Ordinance is not extended to the Malakand Division the Police arid the Courts functioning under the Provincially Administered Tribal Areas (Nifaz-e Nizam-e-Shariah Regulation, 1994) should seek guidance from the Qisas and Diyat Ordinance enforced in rest of the country. In this context the following excerpt from the last mentioned instructive judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan may be reproduced advantageously:-- "In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic Law/the Injunctions of Islam as contained in the Quran and Sunnah relating to the, offence of Qatl and Jurh
(hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as afore-stated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi-ul-Awwal and the same lapses or otherwise becomes unenforceable due to any reason, creating a similar vacuum, in the statute law on the subject. In the afore-visualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic Law/Injunctions of Islam as contained in Quran and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable:"
6. Coming to the plea of bail it will be enough to say that a case for bail is made out inasmuch as the occurrence took place at the spur of moment, the complainant did not sustain hurt on any vital part of his body and the kind of hurt suffered by him being `Ghayr-jaifah' namely `Badiah' and `Munaqilah' the prosecution case taken to its extreme is not likely to entail such punishment of imprisonment which would attract the prohibitory clause of section 497, Cr.P.C. Resultantly, this application is accepted and 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 the Magistrate/Illaqa Qazi (Criminal).