2020 P Cr (PLP)

CH. ABDUL AZIZ, J.

Through this petition filed in terms of section 497, Cr.P.C., Israr Hussain Shah (petitioner) has sought post-arrest bail in case FIR No.25/2020 dated 15.02.2020 registered under sections 320, 322, 279, 337-G and 427, P.P.C. at Police Station New Airport, Tehsil Fateh Jang, District Attock.

2. Succinctly stated the case of prosecution as it gleans from the crime report is to the effect that on 15.02.2020 Shafqat Yasin 794/HC (complainant) along with Sibtul Hassan 2663/C was present at Qutabal Toll Plaza in connection with patrolling; that at about 6:40 a.m. a Toyota Hi-Ace Van emerged from Rawalpindi side which was being driven rashly and negligently; that at the same time a ten wheeler troller parked on the road side came on the road without any signal or indicator; that the Hi-Ace Van collided with the troller and this accident culminated into the death of seven persons while left behind thirteen others as injured; that the names of the van and truck drivers were later disclosed as Israr Hussain Shah and Muhammad Saleem respectively.

3. Arguments heard. Record perused.

4. From the tentative perusal of the record, it divulges that the case in hand pertains to a traffic accident in which seven persons lost their lives, whereas thirteen others received traumas over their persons. All the victims were boarding Toyota Hi-ace Van, statedly being driven by Israr Hussain Shah (petitioner), which collided with a ten wheeler troller having registration No.TKP-356. On one hand, in crime report Israr Hussain Shah (petitioner) is burdened with the accusation of driving Toyota Hi-Ace Van rashly and negligently at the eventful time. On other hand, Muhammad Saleem (co-accused) is also saddled with the allegation that his ten wheeler troller was parked on road side and was brought on the road without any signal or indicator and it collided with the Toyota Hi-Ace Van. It is also not out of place to mention here that Troller-driver Muhammad Saleem was granted post-arrest bail by the learned Area Magistrate through order dated 26.02.2020.

5. In the wake of facts mentioned above, it can inexorably be held that apparently the immediate cause of accident was the careless approach of truck driver. Even from the perusal of record as well as by confronting the investigating officer with certain queries, it is opaque as to how it was mentioned in the FIR that Israr Shah (petitioner) was driving his van rashly and negligently. Admittedly, no statement of any passenger boarding the Toyota Hi-Ace Van is available on record from which it may even remotely insinuate that Israr Shah (petitioner) was fast and reckless. It is also discernible from record that Israr Shah (petitioner) was nabbed in the case on 20.02.2020 and when produced before the learned Area Magistrate, he presented his LTV-driving licence, thus was granted bail under section 496, Cr.P.C. with an observation that 322, P.P.C. is not found attracted. Subsequent thereto, the concession of post-arrest bail granted to petitioner by learned Area Magistrate through order dated 20.02.2020 was recalled by the learned ASJ through her order dated 11.03.2020 on the ground that the facts of case attract 322, P.P.C.

6. Without dilating any further upon the facts of case, it is noticed that at present the petitioner is lodged in jail due to offence under section 322, P.P.C. as rest of other 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. as 30630-grams of silver. 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 is shown as non-bailable, hence the foregoing penal provision is to be treated as not 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. In this regard, wisdom expressed in Maxwell on the Interpretation of Statutes (Twelfth Edition) by P. St. J. Langan can be borrowed and is being mentioned hereunder:- "The principle applied in construing a penal Act is that if, in construing the relevant provisions, 'there appears any reasonable doubt or ambiguity', it will be resolved in favour of the person who would be liable to the penalty". Since there is no compelling reason to deviate from the afore-mentioned well-embedded principle of law, hence I am swayed to interpret 322, P.P.C. as not attracting the prohibition contained in section 497(1), Cr.P.C. The view so formed is in consonance with the case reported as Muhammad Nadeem v. State [1998 MLD 1537] wherein while deciding the fate of a post-arrest bail emerging from FIR registered under sections 320 and 322, P.P.C. it was observed as under:- "If there are two interpretations possible, I am persuaded to accept that interpretation which is more lenient and favours the accused person." If any further reference in this regard is needed that can be made to the cases reported as Tariq Mahmood v. State [2005 YLR 1968], Aamir v. The State (2006 PCr.LJ 1236), Ramesh v. The State (2012 MLD 1702) and Zia-Ur-Rehman v. The State (2018 YLR 1810).

7. In the given circumstances, it can inevitably be held that for the purposes of bail, the offence under section 322, P.P.C. can be treated as not falling within the prohibitory clause of section 497, Cr.P.C. It is essentially required to be mentioned here that for the purposes of bail, the offences are sorted in two different categories, as is evident from section 497(1), Cr.P.C. It alludes from section 497(1), Cr.P.C. that positive language is couched for the grant of bail in offences having imprisonment, less than ten years by use of expression 'he may be released on bail' (emphasis supplied). The word "may" is generally used in a statutory provision in permissive or enabling sense. As regards, the offences entailing punishment of ten years imprisonment and upward, a stringent criteria is laid down for the grant of bail and such relief can only be extended if from the tentative perusal of record reasonable grounds to connect an accused with the commission of crime are found lacking. The law of bail, as it evolved over the years, defines two classes of offences mentioned in section 497(1), Cr.P.C. as non-prohibitory and prohibitory clause. In the earlier kind of cases i.e. having imprisonment of less than ten years, the bail is granted as a rule and only the existence of some exceptional circumstances entail its dismissal. Now the question of foremost importance arises that what in law is considered an exceptional circumstance, which may render an accused disentitled from the concession of post arrest bail, even in an offence having imprisonment of less than ten years. The Hon'ble apex Court while dilating upon the exceptional circumstances defined them in case reported as Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) as under:- "The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal is an exception. So the bail will be declined only in extra-ordinary and exceptional cases, for example

(a) where there is likelihood of absconding of the accused; (b) where there is apprehension of the accused tampering with the prosecution evidence; (c) where there is danger of the offence being repeated if the accused is released on bail; and (d) where the accused is a previous convict." The afore-mentioned rule of granting bail in offences not attracting the prohibitory clause of section 497, Cr.P.C. has been vigorously followed by the Hon'ble Supreme Court of Pakistan in the cases reported as Subhan Khan v. The State (2002 SCMR 1797), Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488) and Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733).

8. This Court is not oblivious of the fact that unfortunately seven persons lost their lives in this case but even in such circumstances the fate of instant post-arrest bail is also to be decided within the framework of section 497, Cr.P.C. and in accordance with the guidelines on the subject laid down by the Hon'ble Supreme Court of Pakistan in above-referred cases. It is considered expedient to mention here that nothing as such is available on record from which, it may allude that petitioner previously remained involved in any case of rash and negligent driving, thus inescapably it can be concluded for the purposes of bail that no exceptional circumstance is in existence to withhold the benefit under section 497, Cr.P.C.

9. There is yet another aspect which persuaded this Court to allow this petition and to grant bail to petitioner. As mentioned above, offence under section 322, P.P.C. is made punishable only with Diyat and such amount even upon conviction is made payable in lump-sum or through installments spreading over five years. An accused handed down guilty verdict under section 322, P.P.C. can only be kept in confinement, if he makes a default to pay the Diyat amount as is evident from section 331, P.P.C. In the wake of above legal position, it can relentlessly be held that if the petitioner is denied the concession of post arrest bail, the period of incarceration as under trial prisoner is not likely to serve any purpose of law but is apt to amount as punishment before conviction. Even otherwise, the driver of the troller who was the main person responsible for the accident has been released on bail by the Magistrate, thus on the principle of consistency the petitioner is also entitled to the similar treatment.

10. All the facts mentioned above provide strength to the claim of petitioner for his entitlement to the concession of post arrest bail. Resultantly, the instant petition is accepted and petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.500,000/- (five lac) with two sureties each in the like amount to the satisfaction of the learned trial court. SA/I-6/L Bail granted.