2021 PLP 1126 (MLD)

ANWAARUL HAQ PANNUN, J.

The petitioner, who is a doctor by profession, seeks post-arrest bail in case F.I.R No.302/2019 dated 29.04.2019, offence under Section 322, P.P.C., registered at Police Station Model Town, Gujranwala. He has been booked in this case with the accusation of committing qatl-bis-sabab of Muhammad Asim (son of the complainant) by showing his negligence while conducting surgery of the deceased.

2. Heard. Record perused.

3. It is straightway observed that punishment for qatl-bis-sabab provided under Section 322, P.P.C., is 'Diyat' only. According to Section 53, P.P.C., an offender, upon having been found guilty of the charge, may be imposed upon any one or more out of the punishments of Qisas, Diyat, Arsh, Daman, Death either as Qisas or Ta'zir, Imprisonment for Life, Forfeiture of Property and Fine by a Court of competent jurisdiction. Furthermore, under Section 299(e), Chapter XVI of P.P.C., Diyat has been defined as the compensation specified in Section 323, P.P.C., payable to the heirs of the victim and the value of Diyat has been defined in Section 323, P.P.C., as under:- "(1) The Court shall, subject to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of thirty thousand, six hundred and thirty grams of silver. (2) For the purposes of subsection (1), the Federal Government shall, by Notification in the official Gazette, declare the value of silver, on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year." In the judgment reported as Muhammad Shafi v. The State and another (2020 PCr.LJ 1530), this Court has already observed that in such like cases it is for the learned trial Court to hold at the trial that whether the evidence adduced by the prosecution would bring the case of accused within the ambit of Section 322, P.P.C., or otherwise; no punishment of any period, except the payment of Diyat, has been provided under Section 322, P.P.C., and no express provision of law exists to show that punishment of Diyat attracts the prohibitory clause of Section 497 Cr.P.C. Furthermore, in the case of Israr Hussain Shah v. The State and 2 others (2020 PCr.LJ 1164), this Court has held that if a provision can be interpreted in two different manners then the one which favours the accused is to be adopted; 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. The Hon'ble Supreme Court of Pakistan in the dictum reported as Shah Hussain v. The State (PLD 2009 SC 460) has held that after the use of word "shall" for the word "may" in Section 382-B, Cr.P.C, at the time of passing the sentence it is mandatory for the trial Court to take into consideration the pre-sentence custody period of the accused.

4. Keeping in view the above legal position, it can safely be held that if an accused charged under Section 322, P.P.C., upon pleading his guilty or after his trial, is convicted accordingly, he can only be kept in confinement in case he commits default in the payment of Diyat amount and the provision of Section 382-B, Cr.P.C does not apply in such like case, which ordains that "Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence". As such, incarceration of the petitioner during trial would amount to punishment before his conviction as well as against the mandate of law vis- -vis applicability of Section 382-B, Cr.P.C settled by the Hon'ble Supreme Court of Pakistan in the dictum supra. Moreover, it is settled law that in an offence which does not entail the punishment of imprisonment the accused shall be entitled to bail as of right because if he is refused bail the period as under trial prisoner would amount to a case of double jeopardy.

5. Keeping in view the above legal position, it can safely be held that incarceration of the petitioner as under trial prisoner is not justified as the same would not serve any useful purpose and even in case of his conviction such period cannot be compensated in any manner. Therefore, by allowing this petition the petitioner is admitted to post-arrest bail subject to his furnishing of bail bond in the sum of Rs.27,00,000/- (Rupees twenty seven hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court/Area Magistrate. SA/M-53/L Bail granted.