The definition contained in section 299(b) of PPC clearly draws a distinction between two punishments viz., ‘arsh’ and ‘daman’.

Distinct punishment of ‘daman’ has been provided under section 53 of PPC and that has been defined as compensation determined by court to be paid by the offender to the victim for causing a hurt not liable to ‘arsh’. The definition contained in section 299(b) of PPC clearly draws a distinction between two punishments viz., ‘arsh’ and ‘daman’. Undeniably, the provisions of section 337-F(vi) of PPC provide the punishment in shape of payment of daman besides imprisonment of either description for a term which may extend to seven years as ta’zir. The use of word “shall” before the punishment ‘daman’ reflects that a person convicted under section 337-F(vi) of PPC would be punished by awarding the principal punishment of daman and discretion has been left with the court to also award the punishment of imprisonment that may extend to seven years as ta’zir. Non-obstante of clause as contained in subsection 2 to section 337-N of PPC contemplates that courts in all hurt cases may pass sentence for imprisonment as ta’zir while awarding principal sentence of arsh provided that offender was found to be previous convict, habitual, hardened, desperate or dangerous criminal or had committed offence in the name or on the pretext of honour. Undeniably, as per the provisions of section 337-F(vi) of PPC, no punishment of arsh has been provided and principal sentence as contemplated under section 337-F(vi) of PPC is ‘daman’, therefore, provisions of section 337-N(2) of PPC would not be applicable and learned trial court was competent to award sentence of imprisonment which may extend to seven years as ta’zir. As per the provisions of section 337-N (2) of PPC in all cases of hurt under Chapter XVI of PPC, courts besides awarding the punishment of arsh can only 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 the honour, however, in cases of hurt where punishment of arsh has not been provided, it would be discretion of court to have awarded punishment of imprisonment as prescribed by the section of law falling in Chapter XVI of PPC. There is no cavil with the proposition that Chapter XVI of PPC relating to hurts provides punishments of diyat, arsh or daman in addition to punishment of ta’zir by providing certain sentences of imprisonment qua different kinds of hurts. The non-obstante clause of subsection 2 to section 337-N of PPC would not be applicable qua kinds of hurt where no punishment of arsh has been provided and the offenders who are tried for an offence not entailing the sentence of arsh can be dealt with in accordance with the relevant provisions of substantive law. Had it been the intention of legislature to have included the cases relating to hurt entailing punishment of daman in non-obstante clause as contained in subsection 2 to section 337-N of PPC, it could have conveniently been added after the word ‘arsh’ as hinted in subsection 2 to section 337-N of PPC. Admittedly, it has not been done so and merely word ‘arsh’ has been mentioned in the said section of law by excluding the offences under which punishment of daman has been provided from the rigours of section 337-N(2) of PPC. No illegality, thus, has been committed by learned trial court while awarding the sentence of imprisonment under section 337-F(vi) of PPC.

It is by now a settled principle of law that when an accused is held guilty by a court of competent jurisdiction on the basis of evidence so led at trial, initial presumption of innocence simply stands vanished.

Crl. Appeal No.181 of 2022
Talib Hussain and another Versus The State and another
05-07-2022