2001 PLP 1127 (MLD)

5. Learned counsel for the petitioner submits that petitioner has been falsely implicated in this case, that deceased has met his death due to heart failure, that deceased was a person of bad character and he was involved in 19 Criminal cases of different nature, that offence has been amended from section 302, P.P.C. to section 322, P.P.C. during the course of investigation. He further submits that petitioner was ready to pay "Diyat", amount to the complainant under protest. Adds, that no case whatsoever is made out against the petitioner and his case is covered by subsection (2) of section 497, Cr.P.C. which requires further inquiry into his guilt and he'is entitled to this extraordinary relief.

6. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that petitioner is named in the F.I.R., that post‑mortem report corroborates the ocular account, that there was no previous background of enmity between the parties, that considerations for the grant of bail before arrest and after arrest are totally different.

7. I have heard learned counsel for the parties. In the instant case, though the F.I.R. was‑ registered on 19‑5‑1999 but sufficient explanation of delay in lodging the F.I.R. has been given. The contention of learned counsel for the petitioner that during the course of investigation offence was altered from section 302, P.P.C. to section, 322, P.P.C. and according to section 322, P.P.C. punishment is only "Diyat". I would, like to mention here section 321, P.P.C. alongwith illustration which is reproduced below:

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. " Illustration. "A unlawfully digs a pit in the thoroughfare, but without any intention to, cause death of, or harm to; any person. B. while passing from there falls in it and is killed. A has committed Qail‑bis‑Sabab." The punishment of Qatl‑bis‑Sabab .has been given in section 322, P.P.C., the commentary is also given there, which is reproduced as under. "

322. Punishment for Oatl‑bis‑Sabab.‑‑‑Whoever commits Qatl‑bis Sabab shall be liable to Diyat." "Killing by rash and negligent driving by accused who was not 'licensed driver would be Qatl‑.bis‑Sabab under section

322. Accused in such case cannot claim bail on ground that punishment for offence under section 322 is only Diyat." The bare perusal of the above said sections illustration and commentary prima facie shows that offence is not covered by section 322, P.P.C. read with definition and illustration of section 321, P.P.C. Petitioner was Incharge of the said police station. F.I.R. starts from his name, he alongwith police officials forcibly took the brother of the complainant namely Pervez Akhtar alias Mutal in custody and there are eye‑witnesses, who have seen the police officials committing torture on the person of Pervez Akhtar alias Mutal. Petitioner belongs to disciplined force and he should have been more careful in such‑like matters. According to the F.I.R. anti statements of the P.Ws. offence which is made out is under section 302, P.P.C. and not under section 322, P.P.C. The submissions of learned counsel for the petitioner that deceased was a person of bad character and I was involved in 19 cases of different nature, although complainant's counsel has submitted that at the time of death of the deceased, he was 19 years of age and police involved him in 19 cases from 1993 to onward when he was 13 years of age but only in two F.I.Rs. he was named while in the rest of the F.I.Rs he was not named, it may be correct but police has been given no licence to kill a person though he is involved in criminal cases. Case of the petitioner is covered under the prohibitory clause of section 497 (1), Cr.P.C. Moreover, consideration for the grant of bail before arrest and after arrest are totally different. This is not a case of bail before arrest. Dismissed. H. B. T./E‑7/L Petition dismissed,