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Petitioner: ALI MUHAMMAD VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa, Tariq Shamim, M. A. Zafar Title: ALI MUHAMMAD vs THE STATE Case No.: Criminal Miscellaneous No,717-B of 2009 Date of Judgment:2009-02-20 Reported As: PLD 2009 Lahore 312 Result: Order accordingly
Judgment ORDER ASIF SAEED KHAN KHOSA, J.---An overwhelming number of cases coming up before this Court are run of the mill but there are others which are groundbreaking. The case of Ali Muhammad petitioner offers a rare opportunity to break new ground and, therefore, we have decided to grab the opportunity so as to explore new avenues for delay reduction and innovative management of the colossal overload of cases before the subordinate courts. 2. Through this petition Ali Muhammad petitioner has sought post-arrest bail in case F.I.R. No, 253 registered at Police Station Gogera, District Okara on 22-6-2008 in respect of offences under sections 337-A(i)/337-A(iii)/337-F(i)/34, P.P.C. It is alleged by the prosecution that at about 09-00 a.m. On 16-6-2008 the petitioner and his son namely Maqbool Ahmad had caused injuries to the petitioner's second wife namely Mst. Azran Bibi complainant with sotas in village Dholly Khichi. Earlier on applications submitted by the petitioner seeking the same relief had been dismissed by the learned Magistrate First Class, Okara and the learned Additional Sessions Judge, Okara on 26- 11-2008 and 6-12-2008 respectively. 3. We have heard the learned counsel for the petitioner, the learned counsel for the complainant, the learned Deputy Prosecutor-General appearing for the State, the learned Deputy Attorney- General for Pakistan and the learned Additional Advocate-General, Punjab and have gone through the relevant record with their assistance. 4. The learned counsel for the petitioner has argued that the petitioner is not a previous convict, habitual or hardened, desperate or dangerous criminal and the alleged offence had not been committed by him in the name or on the pretext of honour and, thus, by virtue of the provisions of subsection (2) of section 337-N, P.P.C. Even in case of his ultimate conviction the petitioner would
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not be awarded any sentence of imprisonment by the learned trial court as Ta'zir in addition to the punishment of payment of Arsh or Daman to the victim. According to the learned counsel for the petitioner in all such cases no sentence of imprisonment may be awarded to the offender and he may be burdened only with payment of monetary compensation to the victim by way of Arsh or Daman. He has maintained that the petitioner is ready to deposit the requisite amount of Arsh or Daman with the learned trial court in order to secure the relevant amount of money in case of his ultimate conviction and sentence, if any, and, therefore, without adverting to the merits of his case the petitioner may be released on bail on this score alone. As against that the learned counsel for the complainant has maintained that the petitioner is a desperate person who had beaten up his wife, i,e, the complainant with the help of his son and on account of such desperate nature of his character he is, in case of his conviction, likely to be handed down a sentence of imprisonment as Ta'zir besides the sentence of payment of Arsh and Daman and, thus, the offer made by the petitioner regarding deposit of the requisite amount of Arsh or Daman may not have any bearing upon his prayer for bail. The learned Deputy Prosecutor-General appearing for the State and the learned Additional Advocate-General, Punjab have taken the same position and have gone on to maintain that admission of an accused person to bail in this manner may encourage violence in the society. The learned Deputy Attorney-General for Pakistan has, however, supported the stand of the petitioner and has maintained that the case in hand is one of domestic violence only which ipso facto does not portray the petitioner as a "habitual or hardened, desperate or dangerous criminal" within the purview of the provisions of subsection (2) of section 337-N, P.P.C. Attracting a sentence of imprisonment as Ta'zir in addition to the punishment of payment of Arsh or Daman. He has submitted that the proposed manner of disposition of matters of bail in such cases is likely to obviate premature punishment of accused persons, reduce the load of under-trial prisoners in jails and encourage conciliation and compromise between the affected parties. 5. After hearing the learned counsel for the petitioner, the learned counsel for the complainant, the learned Deputy Prosecutor-General appearing for the State, the learned Deputy Attorney-General for Pakistan and the learned Additional Advocate-General, Punjab and after going through the relevant record with their assistance it has been appreciated by us that the pivotal statutory provisions needing interpretation in this case are those of subsection (2) of section 337-N, P.P.C. Which read as follows: "Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may, having regard to the kind of hurt caused by him in addition to payment of Arsh, award Ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour; Provided that the Ta'zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour." The words "or the offence has been committed by him in the name or on the pretext of honour" and the proviso reproduced above were not a part of the original subsection (2) of section 337-N, P.P.C. And the same had been introduced on 11-1-2005 through the Criminal Law (Amendment) Act, 2004 (Act I of 2005). There are conflicting opinions in the field regarding the true scope of the provisions of subsection (2) of section 337-N, PPC. The view expressed by Mian Muhammad Ajmal, J. Of the Peshawar High Court (as his lordship then was) in the cases of Ikramullah v. Samiullah alias Shanai (1998 M LD 1184) and Aurangzeb v. The State and another (1999 PCr.LJ 230) and the view taken by Khawaja Muhammad Sharif, J. Of this Court in the case of Muhammad Saeed v. The State (2006 YLR 1591) were identical and the same view was followed by Muhammad Jehangir Arshad, J. Of this Court in the case of Muhammad Yaqoob and 4 others v. The State (2007 M LD 1067) but Muhammad Khalid Alvi, J. Of this Court had disagreed with that view in the case of Bakhshu v. The
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State (Criminal Miscellaneous No, 1625-B of 2008 decided at the Multan Bench of this Court on 26- 9-2008). The views expressed by the Hon'ble Supreme Court of Pakistan on the subject in the case of Haji Maa Din and another v. The State (1998 SCM R 1528) were somewhat similar to the views expressed by Mian Muhammad Ajmal, J., Khawaja Muhammad Sharif, J. And Muhammad Jehangir Arshad, J. 6. It had been observed by Mian Muhammad Ajmal, J. In the case of Ikramullah v. Samiullah alias Shanai (1998 M LD 1184) as follows: "9. The bare reading of the above-stated sections i,e, 324, 337-F(ii) and 337-N(2) of the Act would show that the provisions thereof do not supplement each other rather they are at variance from each other. The punishment provided under section 324 of the Act is imprisonment with fine under Ta'zir and word 'shallhas been used making it mandatory in nature, whereas the punishments provided for the offences of the hurt are the payment of Arsh or daman as the case may be, which are mandatory and the award of imprisonment of various terms without any fine has been left to the discretion of the Court. The provisions of subsection (2) of Section 337-N of the Act overrides section 324 and all other sections providing punishment for offences of hurt contained in the chapter. Subsection (2) of section 337-N begins with non-obstante clause as "Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may", give it an overriding effect over all other sections providing punishment for hurt. Under this subsection the offender beside payment of Arsh may be awarded punishment of Ta'zir who is previous convict, habitual or hardened desperate or dangerous criminal. There is nothing on the record to suggest that the petitioner is either a previous convict, habitual or hardened, desperate or dangerous criminal, therefore, in view of the above legal position, the petitioner who is no more required for further investigation is entitled to bail." Later on in the case of Aurangzeb v. The State and another (1999 P.CrLJ 230) Mian Muhammad Ajmal, J. Had again remarked as follows: - "7. Subsection (2) of section 337-N of the Act provides that notwithstanding anything contained in this chapter, in all cases of hurt, the Court may having regard to the kind of hurt, in addition to payment of Arsh, award `Ta'zir to an offender who is a previous convict, habitual or hardened desperate or dangerous criminal. 8. The bare reading of the above stated sections i,e, 324, 337-F(ii) and 337-N(2) of the Act would show that the provisions thereof do not supplement each other rather they are at variance from each other. The punishment provided under section 324 of the Act is imprisonment with the fine under 'Tazirand word 'shallhas been used making it mandatory in nature, whereas the punishment provided for the offences of the hurt are the payment of Arsh or daman as the case may be, which are mandatory and the award of imprisonment of various terms without any fine has been left to the discretion of the Court. The provisions of subsection (2) of section 337-N of the Act overrides section 324 and all other sections providing punishment for offences of hurt contained in the chapter. Subsection (2) of section 337-N begins with non-obstante clause as 'Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may", give it as overriding effect over all other sections providing punishment for hurt. Under this subsection the offender beside payment of Arsh may be awarded punishment of Ta'zir who is previous convict, habitual or hardened desperate or dangerous criminal. There is nothing on the record to suggest that the petitioner is either a previous convict, habitual or hardened, desperate or dangerous criminal, therefore, in view of the above legal position, the petitioner who is no more required for further investigation is entitled to bail." Khawaja Muhammad Sharif, J. Had commented in the case of Muhammad Saeed v. The State (2006 YLR 1591) that:
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"Learned counsel for the petitioner submits that in the offence under section 337-A(iii), P.P.C. The sentence is Arsh which is 10% of Diyat. He further submits that Part II of section 337-N, P.P.C., the conviction and sentence for imprisonment can only be awarded when it is proved that he is desperate and hardened criminal; --------- 2. Learned Additional A.-G. Concedes the submissions/contention of learned counsel for the petitioner that conviction and sentence of imprisonment under section 337-N(ii), P.P.C. Cannot be awarded unless it is proved that accused was hardened and desperate criminal. 3. I have heard learned counsel for the parties. After having heard learned counsel for the parties I am of the opinion that in view of above statement of learned Addl. A.-G. Case of petitioner is of further inquiry. Petitioner shall be released on bail subject to his furnishing bail bonds Muhammad Jehangir Arshad, J. Had observed in the case of Muhammad Yaqoob and 4 others v. The State (2007 M LD 1067) that: "8. Since, at present there is neither any allegation nor any evidence on the record to hold that petitioner(s) are either previous convict, habitual or hardened desperate or dangerous criminals or the offence has been committed by them in the name or on the pretext of honour, therefore, I have no option but to agree with the view taken by his lordship Mr. Justice Mian Muhammad Ajmal, in "Aurangzeb v. The State and another" (1999 PCr.LJ 230) that provisions of section 337-N(2), P.P.C. Are not only mandatory but have overriding effect over all other sections providing punishment for hurt and in terms of subsection (2) of said section, the offender besides payment of Arsh may be awarded punishment of Ta'zir only when it is proved that he is a previous convict, habitual or hardened desperate or dangerous criminal, and in the absence of any evidence against the present petitioners to this effect I am persuaded to accept both these bail applications." As against that in the case of Bakhshu v. The State (Criminal Miscellaneous No, 1625-B of 2008 decided at the Multan Bench of this Court on 26-9-2008) Muhammad Khalid Alvi, J. Had articulated as follows: "8. Apart from Section 337-I the rest of the hurt cases mentioned in Chapter XVI relating to hurts provide punishment of either "Diyat", "Arsh" and "Daman" but as "Ta'zir" certain sentences of imprisonment are also provided in the respective kinds of hurts. The non-obstante clause of sub section (2) of section 337-N (notwithstanding anything contained in this chapter, in all cases of hurt,) brings out the cases of categories of criminals mentioned in this subsection out of the ordinary criminals and are to be dealt with in accordance with this provision. Meaning thereby that all other types of criminals have been left out by this non-obstante clause to be dealt according to the respective hurt case. By adding proviso through Criminal Law Amendment Act 2004 (I of 2005) to sub section (2) and repeating the categories in the proviso as well by providing minimum sentence from the already provided sentence for respective hurt, it makes the case further clear that this clause is specifically designed only for the categories mentioned in this clause and not for any other ordinary criminal. 9. If for the sake of argument contention of the learned counsel for the petitioner is accepted to be true interpretation, the result would be that no offender causing any type of hurt can be sentenced to imprisonment unless he falls within the category of subsection (2) of section 337-N, P.P.C. For example, if a man out of rage for the first time chops of hands and legs of a person he can only be sentenced under section 334, P.P.C. And if "Qisas" is not executable then he is only liable to pay "Arsh" and no punishment as provided in Section 334, P.P.C. Of 10 years can be imposed upon him because he is neither a previous convict nor habitual, hardened, desperate or dangerous criminal. This interpretation in my view cannot be accepted. 10. Looking from another angle it is to be observed that in second schedule of Cr.P.C. Particularly, in hurt cases in Column No, 5 some cases are bailable and some are non-bailable keeping in view the gravity of hurt and sentence provided. Had the intention of the legislature been that sentence is
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only Arsh and Daman in hurt cases then in the schedule it was not required to differently treat different types of hurts as bailable or non-bailable. It is thus obvious that along with Arsh sentence of imprisonment for various hurts to various lengths is provided but the discretion is left with the court to award punishment of imprisonment commensurate with the gravity of offence to various terms within the prescribed limit. 11. Having all respect to the judgments cited by the learned counsel for the petitioner it is to be observed that proviso to subsection (2) of Section 337-N, P.P.C. Was added through Criminal Law Amendment Act, 2004 (I of 2005) dated 10-1-2005. Judgment reported as 1999 PCr.LJ 230 was delivered before the introduction of the Proviso while judgment reported as 2007 M LD 1067 has merely followed the earlier judgment without considering the effect of Proviso, which was not brought into the notice of his lordship." 7. The research conducted by us shows that the Hon'ble Supreme Court of Pakistan had also commented upon the provisions of subsection (2) of section 337-N, P.P.C. In the case of Haji Maa Din and another v. The State (1998 SCM R 1528). In that case the Hon'ble Supreme Court had framed a question as to "Whether and when a person accused of an offence punishable with Qisas or in the alternative Arsh (Diyat) can also be punished with imprisonment?" It was held by the Hon'ble Supreme Court in that connection as follows:-- "8. The second question need not be gone into in this case as this being a bail matter, it is sufficient to refer to section 337-N(2) of P.P.C. Which provides, amongst others, the cases/circumstances in which punishment of imprisonment is to be awarded as Ta'zir. The factors to be seen for awarding Ta'zir punishment are 9...................... 10. As regards Haji Maa Din, petitioner No, 1, the case is that injury was caused in scuffle. He is not alleged to be habitual or hardened, desperate or dangerous criminal or a previous convict. He has undertaken to face the trial and to be available to receive the prescribed punishment in Qisas if the case is proved against him and if the same is waived to pay the requisite amount of Arsh--------- 11. In view of the above circumstances it would be in fitness of things that they should be released on bail. This petition is, therefore, converted into appeal and allowed. Both the petitioners are allowed bail ---------- It appears that this pronouncement by the Hon'ble Supreme Court already available in the field has so far remained unnoticed by the High Courts and unfortunately Muhammad Khalid Alvi, J. Was not made aware of the views of the Hon'ble Supreme Court on the subject. 8. We have respectfully and carefully examined the divergent views reproduced above and have minutely considered the provisions of subsection (2) of section 337-N, P.P.C. Mian Muhammad Ajmal, J., Khawaja Muhammad Sharif, J. And Muhammad Jehangir Arshad, J. Were of the view that the provisions of subsection (2) of section 337-N, P.P.C. Are not only mandatory in nature but they also have an overriding effect over all the other provisions providing for punishment for hurt and that in all cases of hurt the offender, besides the punishment of payment of Arsh or Daman, may be awarded the punishment of imprisonment as Ta'zir only when it is proved that he is a previous convict, habitual or hardened, desperate or dangerous criminal. Muhammad Khalid Alvi, J. Was, however, of the view that after the subsequent introduction of the proviso to subsection (2) of section 337-N, P.P.C. Serious cases of hurt involving cruelty or brutality, etc. Could still be visited with a punishment of imprisonment as Ta'zir in addition to the punishment of payment of Arsh or Daman and that some offences pertaining to causing of hurt were still non-bailable, and, thus, an accused person involved therein could be arrested, which meant that bail could be refused in such cases. 9. After a careful consideration of the matter we have found that the non-obstante clause contained in subsection (2) of section 337-N, P.P.C. Has indeed given the provisions of the said
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subsection an overriding effect and sway over all the other provisions dealing with hurt contained in Chapter XVI of the Pakistan Penal Code, 1860. We have also found that the provisions of subsection (2) of section 337-N, P.P.C., as they stand today, contemplate that in all cases of hurt the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment provided for the relevant offence can be awarded to an offender only where the offender "is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour". It is also quite clear to us that the subsequent addition of the proviso to subsection (2) of section 337-N, P.P.C. Had done nothing more than stipulating that if the offender "is a previous convict, habitual, hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour" then the sentence of imprisonment to be awarded to him as Ta'zir shall not be less than one-third of the maximum period of imprisonment provided for the hurt caused. According to our understanding the said proviso only fixes the minimum sentence of imprisonment to be awarded to an offender who "is a previous convict, habitual, hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour". Respectfully observing, we have found nothing in the said proviso which may detract from the overriding effect of the main subsection or create any exception for cases of cruelty or brutality, etc., as found by Muhammad Khalid Alvi, J. The cases of cruelty or brutality, etc. Already stood catered for in subsection (2) of section 337-N, P.P.C. And the proviso only fixes the minimum sentence of imprisonment in such cases. 10. We may also add with great deference that the consideration weighing with Muhammad Khalid Alvi, J. Regarding some offences pertaining to causing of hurt being non-bailable has been found by us to be extraneous to the issue because even in a case involving a bailable offence an accused person can be arrested during the investigation but he is entitled to be admitted to bail as of right. Bailable nature of an offence does not mean that the accused person involved in such offence cannot be arrested in connection with investigation of such a case. As a matter of fact the provisions of section 496, Cr.P.C. Reading as "When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer-incharge of a police station, or appears or is brought before a Court, and is prepared at any time while in custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: " (Italics have been supplied for emphasis) expressly contemplate arrest or detention of accused persons even in cases involving bailable offences and then go on to provide for their release on bail in such cases as of right. It goes without saying that arrest of an accused person involved in a case of hurt may be necessitated by the requirements of a proper investigation but such arrest cannot be equated with punishment so as to conclude or infer that upon his ultimate conviction such accused person can also be visited with a sentence of imprisonment at the end of the day. These observations made by us find ample support from the contents of paragraph No, 7 of the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Haji Maa Din (supra) according to which arrest or detention of an accused person during an investigation has no relevance to the issue whether the accused person could or could not be imprisoned after recording of his conviction. Offences carrying punishments of Hadd, Qisas or Diyat do not contemplate imprisonment of the convict and a question was framed by the Hon'ble Supreme Court in that case as to "Whether a person accused of an offence punishable with Qisas or in the alternative Arsh (Diyat) can be detained in prison awaiting decision of his case?". It was held by the Hon'ble Supreme Court after a discussion on the issue that "It follows, therefore, that an accused person can be detained in jail pending investigation or decision provided the dictates of justice and public good so demand; hence refusal or grant of bail will be regulated by the Court in accordance with the well-settled principles."
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The question of arrest during an investigation, thus, could not be bracketed with the question of imprisonment after conviction and by tagging the two together, we observe so with great regard, Muhammad Khalid Alvi, J. Had given weight to a consideration which was not relevant. 11. In view of what has been discussed above we have entertained no manner of doubt that in all cases of hurt provided for in Chapter XVI of the Pakistan Penal Code, 1860 the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment as Ta'zir provided for the relevant offence can be awarded to an offender only where the offender "is a previous C convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour" and in the case of such an offender the sentence of imprisonment as Ta'zir is not to be less than one-third of the maximum imprisonment provided for the hurt caused. This, to us, is the only interpretation of the provisions of subsection (2) of section 337-N, P.P.C. As they stand today and if the legislature intends otherwise then it may…
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