' The petitioner seeks bail in a case registered against him vide F.I.R. No,109 dated 29-7-1998 for an offence under sections 337-D and 337-F(i) of the P.P.C. At Police Station Noorpur District Khushab.
2. As per the allegations made in the F.I.R. The petitioner had inflicted a Churri blow on the left flank of Muhammad Afzal who attempted to catch hold of the Churri and as a result, finger of his right hand was injured. The motive stated in the F.I.R. Is that Muhammad Afzal had stopped the petitioner from passing in front of his house on which he felt aggrieved and attacked him.
3. The petitioner was allowed bail by the learned Magistrate vide his order dated 13-8-1998 but on a petition filed by the complainant, the learned Sessions Judge cancelled his bail vide order dated 17-10-1998..
4. I have heard the learned counsel for the petitioner and the learned Assistant Advocate-General for the State. While cancelling the petitioner's bail, the learned Sessions Judge relied on the judgment in the case of "Raza Mustafa v. The State and others 1998 PCr.LJ 1525. The tenor of the order shows that the offence under section 337-D of the P.P.C. Was considered to be covered by the prohibitory clause of section 497 of the Cr.P.C. With due deference I find myself unable to subscribe to the said view. The sentence provided for offence under section 337-D of the P.P.C. Is as under:-- "337-D.--Punishment of Jaifah.--Whoever by doing any act with the intention of causing hurt to a person, or with the knowledge that he is likely to cause hurt to such person, causes Jaifah to such person, shall be liable to Arsh which shall be one-third of the diyat and may also be punished with imprisonment of either description for a term which may extent to ten years as Ta'zir."
Obviously, the primary sentence which is to be awarded to an accused on his conviction is payment of Arsh (equal to 1/3rd of the amount of diyat). The use of the word "may" qua the sentence of imprisonment up to 10 years clearly shows that the sentence of imprisonment is entirely discretionary with the Court. Therefore, on conviction for an offence under section 337-D of the P.P.C. The Court will award the sentence of payment of Arsh and keeping in view the circumstances of a case may or may not award any. Sentence of imprisonment. The Offences falling within the prohibitory clause of section 497 of the Cr.P.C. Are. Those which are punishable with death, imprisonment for life or imprisonment up to 10 years. Meaning thereby that on conviction sentence of imprisonment up to 10 years or life imprisonment or death has to be awarded by the Court. This is not the position qua the offence under section 337-D of the P.P.C.
Therefore, in my view, the offence under section 337-D of the P.P.C., though non-bailable does not fall within the prohibition of section 497 of the Cr.P.C.
5. There is considerable weight in the argument raised by the petitioner's learned counsel that consideration for grant and cancellation of bail are different and that after grant of bail strong grounds have to be made out to justify cancellation of bail. In the case of "Syed Amanullah Shah v.
The State and another PLD 1996 SC 241, it was held:-- "Once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr.P.C. Are not punitive."
In the present case, there was nothing to show that the petitioner had misused the concession of his liberty by suborning prosecution witnesses or committing any other offence. The Court below had proceeded to cancel the petitioner's bail on a wrong notion of the law.
6. Therefore, the petition is accepted and the petitioner is allowed bail, subject to his furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate, Khushab.