2005 PLP 1968 (YLR)

A criminal case vide F.I.R. No.289 of 2004 dated 10-12-2004 under sections 322/279, P.P.C. was registered with Police Station, Seetal Mari District, Multan at instance of Nazir Ahmad Shahid, complainant.

2. It is alleged in the said F.I.R. that on 10-12-2004 at about 11-30 a.m. the petitioner was present on the gate of Textile Engineering College, Khanewal Raod, Multan, where Adnan Anjum a student of the said college and his mother Mst. Zubaida Parveen were waiting for the transport when a bus bearing No.862/FDU of Cheema Brothers driven by Tariq Mehmood son of Abdul Ghafoor, whose name was disclosed later on, was coming towards the college gate. The said Adnan Anjum in order to stop the bus raised his hand but the bus driver instead of stopping it over ride Adnan Anjum, who died at the spot. The petitioner was arrested and sent behind the bar and since then he is in the judicial lock-up. Bail petition for after arrest moved to the Illaqa Magistrate was dismissed on 28-12-2004. Similarly his bail petition moved to the Sessions Judge, Multan was also dismissed on 3-2-3005.

3. It is contended that the case of the petitioner does not fall under sections 322/279, P.P.C. but in fact is covered under section 320, P.P.C. being a case of simple accident. Section 320, P.P.C. is bailable and his bail petition has wrongly been dismissed by the Courts below. It is no where stated in the F.I.R. that the petitioner was driving carelessly but the accident took place due to the fault of deceased student who suddenly jumped in front of the bus to stop the same and was run over.

4. Learned counsel appearing on behalf of the State submits that the petitioner has been challaned by the police under section 322, P.P.C. instead of section 320, P.P.C.

5. Learned counsel appearing on behalf of the complainant states that the local police with mala fide intention in order to help the petitioner submitted challan under section 320, whereas from the facts and circumstances of the case F.I.R. under sections 322/279 was rightly recorded. It is only during investigation the police with mala fide intention, nature, of offence and added section 320 instead of section 322, P.P.C. It is further argued that opinion of the police is not binding on the Courts. The offence of rash and negligent driving is established and petitioner is not entitled to grant of bail. Learned counsel for the petitioner in reply placed reliance on Ahmad Khan v. The State 1997 MLD 1591, wherein it is held that case of alleged rash and negligent driving by a driver prima facie falls under section 320, P.P.C. which is bailable. He further relied on Yousaf Khan v. The State 2000 PCr. LJ Karachi 203, wherein it was held by the Karachi High Court that punishment of payment of Diyat corresponding to sentence of imprisonment not exceeding seven years or more. Offence under section 322, P.P.C. though not bailable yet was not punishable with any period of imprisonment besides the payment of Diyat. No express provision of law existed to show that such punishment would attract the prohibitory clause of section 497, Cr.P.C. Bail was allowed in that case.

6. Admittedly section 320, P.P.C. is bailable under which the challan has been submitted in Court. Even otherwise section 322, P.P.C. though was not bailable yet is not punishable with any period of imprisonment besides the payment of Diyat as held in Yousaf Khan v. The State 2000 PCr.LJ Karachi

203. It is yet to be determined whether punishment for payment of Diyat amount, would bring the case of the petitioner within ambit of prohibitory clause of section 497 (1), Cr.P.C. Learned counsel for the complainant as well as counsel for the State has failed to show whether punishment of payment of Diyat corresponding to sentence of imprisonment exceeding seven years or more bringing it within the prohibitory clause of section 497, Cr.P.C.

7. In view of what has been stated above and in the law laid down in Tariq Bashir's case PLD 1995 SC 34, I am inclined to allow bail to the petitioner subject to his furnishing bail bond in the sum of Rs.5,00,000 (rupees five lacks) with one surety in like amount to the satisfaction of the trial Court concerned. H.B.T./T-86/L Bail granted.