Abdul Razzaq, petitioner, seeks bail in a case registered vide F.I.R. No,74 dated 27-5-2003 at Police Station Nidoki, District Naowal, for offences under sections, 336, 382, 337-F, 148/149 P.P.C. The allegation' against the petitioner is that on 28-2-2003, the complainant went to Merikpur to obtain money from Akhtar Ali etc, where in the Bazar the petitioner, who was present there, asked Akhtar Ali that he was drunk and the petitioner got Alchtar Ali arrested at the hands of the police. The complainant further alleged that Abdul Razzaq, petitioner, also misbehaved and abused the complainant and in return the complainant also abused him, meanwhile the co-accused of the petitioner came there. Armed with Sotas; the petitioner asked them to catch the complainant, whereupon Muhammad Akram, Muhammad Yousaf, Abdul Latif and Abdur Rehman gave thrashing to the complainant, hitting on different parts of the body of the complainant, the petitioner who was armed with Iron Kundi gave blows with it to the complainant hitting on his left eye and blood oozed out, who fell down and from his pocket Rs,8,500, wrist watch worth Rs,25,000 and his licensed pistol were also snatched. The complainant was medically examined from Civil Hospital, Narowal, from where he was referred to Mayo Hospital Lahore and that his left eye was totally damaged.
2. The learned counsel for the petitioner contends that the petitioner is innocent; there is considerable unexplained delay of about three months in lodging the F.I.R; as alleged the occurrence took place on 28-2-2003, while the F.I.R was lodged on 27-5-2003; no incriminating article was recovered from the petitioner, the case of the petitioner is of further inquiry.
3. On the other hand, the bail has been opposed by the State on the ground that the offence for which the petitioner has been charged falls within the prohibitory clause of section 497, Cr.P.C.
4. I have considered the arguments of the learned counsel for the parties and perused the record. It is admitted position on the record that Akhtar Ali, who was accompanying the complainant Pervaz Akhtar, was found drunk and on the complaint of the petitioner he was arrested. There was an altercation between the complainant and the petitioner. Both the sides abused each other. Final report has been received from the Eye-Specialist, Mayo Hospital, Lahore, who has opined that the complainant is blind by left eye and right eye is normal. But, keeping in view the circumstances of the case, it is yet to be determined what in fact actually happened before the occurrence. Nothing has been recovered from the petitioner. There is unexplained delay of three months in A lodging the F.I.R. About 9/10 persons have been nominated in the F.I.R. Keeping in view the above stated facts, I am of the opinion that the case of the petitioner is of further inquiry within the meaning of section 497(2), Cr.P.C.
5. The learned counsel for the State had opposed the grant of bail saying that the offence carries punishment of ten years, as such the petitioner's case falls within the prohibitory clause of section 497, Cr.P.C., so the petitioner is not entitled to concession of bail. Section 334, P.P.0 reads as under:-- "334. Punishment for Itlaf-i-Udw.--Whoever by doing any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, causes Itlaf-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 term which may extend to ten years as Ta'zir."
6. Thus where the person is accused of Itlaf-i-Udw, he is liable to, (1) punishment of Qisas, (2) payment of Arsh and (3) sentence of imprisonment up to ten years as Ta'zir. In this case allegedly the complainant became blind because of damage of his left eye. Case of the petitioner prima facie would be punishable under section 337-R P.P.C., and the amount of Arsh would be 1/2 of the amount of Diyat, and additionally the sentence of imprisonment up to 10 years, if found appropriate by the trial Court, can be awarded. In the case reported as Bashir v. The State (1995 PCr.L1 412) this Court while grating bail to an accused of offence under section 334/336, P.P.0 observed:-- "Thus, principles of grant of bail in Shariah would be that persons charged with offences relating to enforcement of Hudood would not be entitled to bail. About Qisas, though opinions differ, yet the preponderance of opinion is that cases involving Qisas are not bailable provided acceptable and reliable evidence is available against the accused. This would also show that the further enquiry into guilt of the accused in cases where evidence qua his guilt is deficient or wanting in certain respects, is an acceptable ground for grant of bail in Shariah, as well. As far as offences punishable with imprisonment as Ta'zir are concerned, these are, generally bailable. Same is the position in cases where offence is obviated with payment of Diyat or Arsh or Dhaman."
7. Facts of the present case show that the primary punishment, prima facie, awardable to the petitioner would be payment of Arsh amounting to 1/2 of the Diyat prescribed by the Government.
Sentence of imprisonment, if any, likely to be awarded would be as Tazir, therefore, the petitioner is entitled to the concession of bail.
For the foregoing reasons, without going deep into the merits of the case, I grant bail to the petitioner subject to his furnishing bail bonds in the sum of Rs,50,000 (Rs, Fifty thousand) with one surety in the like amount to the satisfaction of the trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.