2008 PLP 2306 (YLR)

MRS. YASMIN ABBASEY, J.

Applicant Jumrna, driver of Vehicle bearing No.LS-8029, arrested on 25-11-2007 under Crime No.179 of 2007 in a case of road accident wherein one FIC Muhammad Iqbal lost his life, has moved this Bail Application. It is argued by learned counsel for the applicant that the very lodging of F.I.R. by complainant Abdul Rasheed claiming himself to the eye-witness of the incident is based on incorrect statement as in the Zimni report of 25-11-2007 his name as the police official deputed for traffic control duty is not appearing alongwith other police officials posted at the place of incident. It is further contended that the medical report as placed on record is also contrary to the prosecution version. As per medical report dated 10-12-2007 of Agha Khan University Hospital Karachi deceased died because of his small intestinal injury. Whereas in medico-legal centre, Abbasi Shaheed Hospital C.D.G K, Nazimabad, Karachi injured is shown to have received injury on back of his thigh, which do not find support neither from the certificate of 10-12-2007 nor in the medical certificate issued on 26-11-2007. It is further contended that even if, prosecution's case of road accident is taken into consideration then also case will fall under section 320, P.P.C. whereas at the first instance F.I.R. was lodged under section 324/337, P.P.C. but in the challan submitted on 12-1-2006 it has again been converted under section 316, P.P.C, which is absolutely not applicable in the present case. Referring to number of authorities, it is argued by learned counsel that bail in bailable offence is to be granted as a matter of right and riot as a matter of grace. After death of injured HC Muhammad Iqbal no postmortem was conducted and in such event reliance is made on Muhammad Bakhsh v. The State 1976 PCr.LJ 405 wherein it is observed that absence of post-mortem creates doubt about cause of death, because it cannot be safely inferred that the death of the deceased was the direct result of the injuries suffered by him as a result of the accident. Postmortem, examination was necessary to bring out the fact that the death had occurred due to injuries received by the deceased on account of said accident. Observation made in 1976, PCr.LJ 405 were also based on Abdul Latif v. State, 1972 PCr.LJ 1095 wherein it is held that:

"A normal post-mortem exami nation was however necessary to find to the exact cause of his death. As a result of this unfortunate omission the prosecution had failed to establish that the death of Ajaib Khan deceased was the direct result of the injuries suffered by him on account of the rush or negligent act of the petitioner. He could be held guilty of an offence under section 304-A, P.P.C. only after it was proved by the necessary medical evidence that the resultant injuries were the immediate, proximate and efficient cause, the causa causans and not merely the cause sine qua non of death, without intervention of any other negligence." In reply to it learned State counsel has not been able to controvert any of the grounds satisfactorily. Arguments advanced by learned counsel for the applicant appeal to reason that even if, case of prosecution is that while deceased was chasing to applicant he hit deceased motorcycle on its right side with his vehicle, is taken as correct, the motor vehicle accident report reflect contrary, as if it meets accident from front side. Still that does not bring the case within proviso of section 316 because of contradictory medical report as to cause of death and in absence of post-mortem applicability of section 316 becomes doubtful at this stage. In such eventuality benefit of doubt goes in favour of applicant. In view of the foregoing reasons, Bail Application is allowed. Applicant be released on bail subject to furnishing surety in the sum of Rs.4,00,000 and P.R. Bond in the like amount to the satisfaction of trial Court. H.B.T./J-17/K Bail granted.