1994 P Cr (PLP)

Zaeemul Farooq Malik, Asstt. A.-G. for the State. The allegation against the petitioner is that not being a licensed driver, he had hit and consequently killed one Muhammad Rafiq, while driving a pick up.

2. The learned counsel for the petitioner contends that the offence was punishable under section 320, P.P.C. which was a bailable offence; that the petitioner was only a conductor of the vehicle in question and it was actually the driver of the said vehicle who was driving the same at the relevant time and he having escaped, the petitioner had been maliciously substituted for him; that the petitioner had no intention to kill the deceased; that the petitioner was in judicial lock-up for the last about 2-1/2 months and the challan against him had still not been submitted and that in the circumstances the petitioner had to be released on bail. 2-A. It is true that the F.I.R. had been originally recorded for the alleged commission of an offence punishable under section 320, P.P.C. but as has been submitted by the S.H.O. present in Court, it was on account of the inability of the petitioner -to produce a driving licence that the offence in question had been altered to one punishable under section 322, P.P.C. Prima facie, I find nothing wrong with the opinion of the I.O. that the offence allegedly committed by the petitioner fell within the ambit of the offence described as Qatl-bis-Sabab and the reason for the same is not far to find. 2-B. Oatl-bis-Sabab has been defined by section 321 of the P.P.C. as an offence where the one responsible for the death of another had no intention to cause such a death but the death which had got caused was the result of an unlawful act on the part of this person. As against this, Qatl-e-Khata, by rash or negligent driving, is defined by section 320 of the P.P.C. and is a Qatl which is caused by rash or negligent driving. In the present case, the petitioner, I admittedly, did not possess any licence to drive the vehicle in question. His driving such a vehicle was, therefore, an unlawful act. The position might have been different if he had been licensed as a driver by the concerned authorities. Therefore, to say that the offence allegedly committed by the petitioner did not fall within the purview of Qatl-bis-Sabab and was thus not punishable under section 322 of the P.P.C. is a submission without merit. This being so, the offence alleged against the petitioner i.e. section 322, P.P.C. is an offence IE which is not bailable.

3. The learned counsel next argued that it was not the petitioner who was driving the vehicle in question at the relevant time but it was some one else who was doing the same. No reason has been shown to exist as to why the petitioner who was only a conductor of the vehicle in question should have been maliciously substituted for the person who was actually driving the vehicle at the time of occurrence. According to the investigation it has been found that it was the petitioner and not the person engaged as a driver of the vehicle in question who had caused the death of the deceased. The learned counsel have not been able to show any material or reason which could persuade me not to act upon this prima facie finding of the Investigating Officer.

4. The grant of bail on the ground of delay is now statutorily regulated by the provisions of section 497, Cr.P.C. Admittedly, in the present case, the delay which had occurred in the commencement or even in the conclusion of the trial has still not ripened into a delay which could entitle the petitioner to be released on bail on that ground.

5. The learned counsel finally argued that even if it was conceded that the offence allegedly committed by the petitioner fell within the purview of section 322, P.P.C., the same was punishable only with Diyyat and the petitioner could therefore, not be detained in custody. A bare reading of the relevant provisions of the P.P.C. and the Cr.P.C. would demonstrate that the said offence was a cognizable offence meaning thereby a person accused of the same could be arrested even without a warrant and then the offence had been shown as a non-bailable offence which further demonstrates that the petitioner could be kept in jail after his arrest and had no right to be released on bail pending the trial against him. In this view of the matter it could not be said that merely because the offence in question was punishable with Diyyat only, the present accused could not be lodged in jail.

6. In view of what has been noticed above, I find no merit in this petition which is accordingly dismissed. N.H.Q./M-1268/L Bail refused.