SHER AMEER vs THE STATE
This matter concerns a petition for post-arrest bail filed by the petitioner, Sher Ameer, who was charged under sections 336, 337-A(iv), and 337-F(i) of the Pakistan Penal Code 1860, following an incident where he allegedly struck the complainant with a danda, resulting in dental injuries. The core legal question was whether the prohibition against bail contained in section 497(1) of the Code of Criminal Procedure 1898 applied to the petitioner's case, given the nature of the alleged offences. The Court held that because the punishment for the alleged offences, specifically Itlaf-e-Udw or Itlaf-e-Salahiyat-e-Udw, mandates Qisas or Arsh, and the imposition of imprisonment is purely discretionary, the restrictive clause of section 497(1) of the Code of Criminal Procedure 1898 is not attracted. Consequently, the Court accepted the bail petition, noting the occurrence appeared to be the result of a sudden flare-up. The key principle laid down is that where the statutory punishment for an offence is primarily Qisas or Arsh, and imprisonment is discretionary, the statutory bar against bail under section 497(1) of the Code of Criminal Procedure 1898 does not apply.
- Does the prohibition against bail in section 497(1) of the Code of Criminal Procedure 1898 apply to offences where imprisonment is discretionary?
- Is the offence of causing Itlaf-e-Udw or Itlaf-e-Salahiyat-e-Udw subject to the restrictive provisions of section 497(1) of the Code of Criminal Procedure 1898?
- Section 336, Pakistan Penal Code 1860
- Section 337-A(iv), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-U, Pakistan Penal Code 1860
- Section 334, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
M.A. SHAHID SIDDIQUI, J.--Sher Ameer petitioner through this miscellaneous petition has sought bail in case F.I. R. No . 77 dated 18-10-2005 registered at Police Station, Dullewala, District Bhakkar for offences under sections 336, 337-A(iv) and 337-F(i), P.P.C.
2. As per F.I.R., Rehmat Ali complainant accompanied by his brother Ehsan Ullah was busy in making a fence with sarkandas for his sheep. Sher Ameer petitioner came there. He abused the complainant and asked him as to why he was raising the fence on his land. The complainant paid Sher Ameer petitioner in the same coin upon which the latter went away. Shortly thereafter Sher Ameer again arrived with a Danda in his hand, which he inflicted on the face of the complainant. As a result of which half of his tooth was broken and the adjacent tooth became shaky.
3. Learned counsel for the petitioner contended that the punishment for Iltaf-eSalahiyat-e-Udw primarily makes the offender liable to Arsh which is 1/20th of the Diyat under section 337-U, P.P.C.
Whereas under section 336, P.P.C. The sentence of imprisonment up to 10 years is discretionary, as such, the prohibition contained in section 497(1), Cr.P.C. Shall not prevent this Court from releasing the petitioner on bail.
4. I have considered the arguments and have perused the record. According to the Medico-legal Report, half tooth of Rehmat Ullah complainant was found to be missing. Under sections 334 and 336, P.P.C. If the offender is found to have caused Italf-e-Udw or Itlaf-e-Salahiyat-eUdw, it is mandatory for the Court to punish him with Qisas or Arsh as the case may be. The punishment with imprisonment is purely discretionary, therefore, the prohibition contained in subsection (1) of section 497, Cr.P.C. Shall not be attracted. The occurrence appears to be the result of a sudden flare up; I, therefore, accept this petition and enlarge the petitioner on bail subject to furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the Ilaqa/duty Magistrate.