1992 P Cr (PLP)

Ajmal Kamal Mian for Petitioner. M. Nawaz Abbasi, A.A.‑G. for the State. Ch. Muhammad Iqbal for the Complainant. Date of hearing: 7th March, 1992. The petitioner, who is involved in a case under section 322, P.P.C. arising out of F.I.R. No.204, dated 4‑11‑1991, registered at Police Station Pind Dadan Khan, seeks to be admitted to bail.

2. According to the F.I.R. the petitioner is alleged to have electrified a water tank behind his shop and when Abdul Aziz deceased put his hand therein he was electrocuted.

3. Learned counsel for the petitioner vehemently contended that as the punishment provided for Qatl‑bis‑Sabab under section 322, P.P.C. is Diyat and not imprisonment, hence the case against the petitioner does not fall within the prohibitory clause. He urged that the deceased was even not known to the petitioner, the petitioner had .no motive to cause the death of the deceased. The deceased met 'his death accidentally due to sheer bad luck; hence the petitioner has not committed any offence in the eye of law. He further submitted that where the offence is cognizable and non‑bailable, but does not fall within the prohibitory clause of section 497, Cr.P.C., grant of bail is rule and refusal is exception.

4. The learned Law Officer, assisted by the learned counsel for the complainant and the Police Officer, submitted that actually the case against the petitioner falls within the ambit of section 301, P.P.C. and not under section 322, P.P.C., though the challan has been submitted under the latter section. He submits that bare reading of the F.I.R. would show that the petitioner by electrifying the water tank has done an act which was likely to cause death of any person, hence after the death of Abdul Aziz deceased, the offence would fall within section 301, P.P.C., and mere submission of challan under section 322, P.P.C per se, would not make the offence punishable under that section. According to the learned Law Officer, the punishment provided under section 301, P.P.C. is death or imprisonment which may extend to twenty‑five years, thus the offence falls within the prohibitory clause and the petitioner is not entitled to the grant of bail. ,

5. I have heard the learned counsel for the parties and have perused the record. The plain reading of the F.I.R. manifests that the petitioner electrified the water‑tank without any care and caution; hence he committed an unlawful act, contemplated by section 321, P.P.C., this unlawful act caused the death of /3 Abdul Aziz deceased. Thus, per se, the offence prima facie falls under section 321, P.P.C., which reads as under:‑‑ "321.‑‑‑ Qatl‑bis‑Sabab.‑‑‑ Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act, which becomes a cause for the death of another person, is said to commit Qatl‑bis‑Sabab." The punishment for an offence under sect, P.P.C. is provided under section 322, P.P.C., which is Diyat and the mode of payment of Diyat after the decision is mentioned in section 331, P.P.C. The offence for which the petitioner stands charged does not fall within the prohibitory clause. Even if the contention of the learned law officer is accepted on its face value, still the case would fall within the scope of further inquiry, as it would be determined after the recording of some evidence, whether the offence prima facie falls under section 321, P.P.C. or section 301, P.P.C. In Amir v. The State P L D 1972 SC 277 their Lordships of the Supreme Court observed that even for purposes of bail, law is not to be stretched in favour of the prosecution. As they prosecution itself has submitted the challan against the petitioner under section 322, P.P.C. this Court, in the absence of material or evidence to the contrary, cannot presume at this stage that the offence falls under section 301, P.P.C.

6. In view. of the above discussion, I find that case for the grant of bail is made out; hence I direct that the petitioner may be released on bail on his furnishing bail bond in the sum of Rs.50,000 (fifty thousand only) with one surety in the like amount to the satisfaction of the A.C. Pind Dadan Khan. N.H.Q./M‑278/L Bail allowed.