2021 PLP 1959 (YLR)

MUHAMMAD TARIQ NADEEM, J.

Through this petition filed under section 497, Cr.P.C., petitioner Muhammad Zahid entreats post-arrest bail in case FIR No. 601 dated 30.11.2020 for offences under sections 322/337-G/427, P.P.C. registered at Police Station Narang District Sheikhupura.

2. Tersely, the allegation levelled against the petitioner is that he, while driving rashly and negligently, bus bearing Registration No. RIR-1357, collided with Toyota van bearing registration No. REI-4926, resulted into death of nine precious lives, whereas, sixteen persons were injured. It may not be out of place to mention here that, after registration of FIR, six injured persons also passed away.

3. Heard. Record perused. 4 After hearing learned counsel for the parties and going through the record it has been noticed by this Court, that from bare reading of the crime report and the evidence collected so far by the investigating officer, it divulge that the case in hand is one of traffic accident wherein fifteen persons were kiss to dust, whereas, the remaining received traumas over their persons. According to the prosecution's own case relatives of the complainant were going back after attending marriage ceremony of complainant's daughter, who boarded in a Toyota van bearing registration No. REI-4926 which was being driven by Muhammad Razzaq. When they reached near Darbar Syed Mirran Sarkar, a bus bearing registration No.RIR-1357 which was being driven by Muhammad Zahid petitioner, rashly and negligently collided with Toyota van bearing registration No. REI-4926, due to his negligent act. Learned Deputy Prosecutor General has apprised the Court that, according to case-diary No. 10 dated 05.01.2021, another fact has come on surface that at the time of accident a Toyota Van bearing registration No. 1044-R, which was being driven by one Shahid, struck from back side of petitioner's van, which was already stopped at the place of occurrence. Thereafter, gas cylinder installed in the Toyota van burst and the vehicles got inflamed. The record reveals that co-accused namely Shahid is still proclaimed offender. It will be determined by learned trial court after recording and evaluating the evidence that in fact who is responsible for the accident. This fact makes the case of petitioner to be one of further inquiry.

5. The whole prosecution evidence is devoid of allegation against the petitioner that he was solely responsible for the accident by doing rash and negligent act. During the investigation, the petitioner produced his HTV driving licence on 02.01.2021. In the presence of driving licence, whether section 320, P.P.C. or section 322, P.P.C. will be applicable, this dichotomy will also be determined by the learned trial Court after sifting the evidentiary worth of the material produced before it. For the ready reference section 320, P.P.C. is reproduced as under:-- "Whoever commits qatl-i-khata by rash or negligent driving shall, having regard to the facts and circumstances of the case, in addition of diyat, be punished with imprisonment of either description for a term which may extend to ten years". Similarly section 321, P.P.C. is also relevant which is described below:-- "Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes for the cause of the death of another person is said to commit qatl-bis-sabab". The punishment of section 321, P.P.C. is described in section 322, P.P.C., according to which:-- "whoever commits qatl-bis-sabab shall be liable to diyat" Furthermore, it is observed that except section 322, P.P.C., rest of penal provisions are bailable in nature. So far as, section 322, P.P.C. is concerned, it is made punishable by the Legislature through Diyat only, the value of which is mentioned in section 323, P.P.C. Needless to mention here that, since section 322, P.P.C. is not made punishable with some imprisonment and in second Schedule of Code of Criminal Procedure, 1898, it has been shown as non-bailable, hence the foregoing penal provision is to be treated as non attracting the prohibitory clause of section 497, Cr.P.C. It is the salutary principle of law that if a provision can be interpreted in two different manners, then the one which favours an accused is to be adopted. Reliance in this context is placed upon the case laws titled as, "Muhammad Nadeem v. The State" (1998 MLD 1537), "Tariq Mehmood v. The State" (2005 YLR 1968), "Ghulam Ali v. The State" (2017 YLR Note 339), "Ameer Khan v. The State" (2018 YLR Note 283), "Muhammad Shafi v. The State and another" (2020 PCr.LJ 1530) and "Israr Hussain Shah v. The State and 2 others" (2020 PCr.LJ 1164).

6. The learned Deputy Prosecutor General has vociferously argued that the trial is going to be commenced in near future, for the reason, the petitioner is not entitled for concession of bail. It is settled proposition of law that mere commencement of trial is no ground for the refusal of bail. I fortify my view from the judgments of Hon'ble Supreme Court titled as "Nisar Ahmad v. The State and others" (2014 SCMR 27) and "Muhammad Shafi and others v. The State and others" (2016 SCMR 1593).

7. It is by now well settled that if offences do not fall within the remit of prohibitory clause of section 497, Cr.P.C, then basic rule is bail not jail, if some exceptional circumstances do exist. A reference in this respect may be made to the cases reported as "Muhammad Tanveer v. The State and another" (PLD 2017 Supreme Court 733) and "Tariq Bashir and 5 others v. The State" (PLD 1995 Supreme Court 34), "Arsalan Masih and others v. The State and others" (2019 SCMR 1152), "Dr. Abdul Rauf v. The State through D.A.G." (2020 SCMR 1258) and "Yousaf Khan v. The State" (2000 PCr.LJ 203).

8. Moreover, it is also settled principle of law that heinousness of offence is no ground for the refusal of bail to an accused who otherwise becomes entitled for concession of bail. Wisdom is derived from the case laws titled as "Hasnain Mustafa v. The State" (2019 SCMR 1914) and "Mst. Sughran Mai v. The State and another" (2020 MLD 1944).

9. The petitioner never remained involved in any case of rash and negligent driving in the recent or past, for the reason this Court has reached at the conclusion that a case of bail is made out in his favour. Reliance is placed upon the case reported as "Muhammad Iqbal alias Bala Bandri v. The State and others" (2017 SCMR 1939).

10. The nutshell of the above said discussion is that the petition in hand is allowed and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.10,00,000/- (rupees ten lacs) with two sureties each, in the like amount, to the satisfaction of learned trial court.

11. It is, however, clarified that observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition.

12. Before parting with this order, I would like to issue a direction in the name of learned trial court to conclude the trial expeditiously, preferably within a period of six months from the date of receipt of certified copy of this Order. SA/M-119/L Bail granted.