' The applicant was arrested in Crime No,731 of 2004 in respect of offences punishable under sections 322, 427, 279, P.P.C. Registered at Preedy Police Station Saddar Town, Karachi (South).
According to F.I.R. The applicant was driver of a transport Bus bearing No,JA-7070, plying on Route 2-D. On 2-12-2004 at 1-45 p.m. An accident took place in which the applicant while driving the bus hit the motorcycle from its back and Cars bearing Nos.ADC-394, AFB-815 and ABD-362, which were parked by the side of the road, were damaged. Due to the said accident S.-I. Amjad Ali Khan Tanoli, who was driving the motorcycle died at the spot. The applicant was arrested from the place of incident and Charas was secured from his possession. The complainant A.S.-I. Tariq Khan lodged the F.I.R. On behalf of the State.
2. The applicant moved a bail application before the trial Court but the same was dismissed on 4- 2-2005, hence the present application.
3. Learned counsel for the applicant has argued that the offences are bailable except offence punishable under section 322, P.P.C. That is non-bailable but the sentence provided thereunder is only Diyat; that the said section is not applicable, hence the applicant is entitled to the concession of bail. He has relied upon the case of Yousuf Khan v. The State 2000 PCr.LJ 203.
4. On the other hand, Mr. Habib Ahmad, A.A,-G. And Professor Umar Farooq Khan, Advocate for the complainant have stated that the applicant was driving without any license, therefore, the ingredients of section 322, P.P.C. Are attracted; that the applicant was driving a bus in a rash and negligent manner, as such, his act was unlawful, which has resulted death of a person; that as the offence is non-bailable, therefore, the applicant is not entitled to the concession of bail. They have relied upon the case of Munir Hussain v. The State 1994 PCr.LJ 406.
5. 1 have given due consideration to the arguments, gone through the material available on the record and find that the offences punishable under sections 427 and 279, P.P.C. Are bailable. The offence under section 322, P.P.C. Is non-bailable. Under that provision of law, if anybody commits Qatl-bis-Sabab then he is liable for punishment to Diyat. Qatl-bis-Sabab has been defined under section 321, P.P.C. Which reads as under:-- "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 death of another person, is said to commit Qatl-bis-Sabab."
6. The main ingredient of section 321, P.P.C. Is that if the act is unlawful then the offence of Qatl-bis- Sabab would be committed. In the present case I have gone through the driving license of the applicant, which has been produced by him along with the bail application. It shows that it was issued on 7-9-1989. The date of birth of the applicant has not been mentioned in the driving license because such column has been left blank by the Issuing Authority. The license was valid by renewal upto 6-9-2003. The incident took place on 2-12-2004 as such when the incident took place, the applicant was having a license but had already expired on 6-9-2003. After the accident, on 6-12- 2004 the applicant got the license renewed upto 6-9-2006. Under the law the applicant can drive the vehicle for one year without renewing the license and thereafter the license ceased to be an effective license, unless it is renewed.
7. Under section 3 of the Motor Vehicles Ordinance, 1965 (hereinafter referred to as the "Ordinance, 1965"), a person is entitled to drive any motor vehicle or public service vehicle if he holds an effective license authorizing him to drive such vehicle. The said section reads as under:-- "3. Prohibition on driving without license.--- (1) No person shall drive a Motor Vehicle in any public place unless he holds an effective license authorizing him to drive the vehicle; and no person shall so drive a Motor Vehicle as paid employees or shall so drive a public service vehicle unless his license specially entitles him so to do: ' Provided that a person receiving instruction in driving a Motor Vehicle may, subject to such conditions as may be prescribed by Government in this behalf, 'drive a Motor Vehicle in any public place.
(2) No person shall drive a motor vehicle in any public place unless he had in his possession his own copy of the most recent version of the Pakistan Highway Code published by the Federal Government."
' Thus, for driving any vehicle, the driver should have an effective license authorizing him to drive such vehicle.
8. If the person has attained the age of 50 years then his license is to be renewed every year after furnishing a certificate in Form as set forth in the First Schedule of the Ordinance, signed by the registered medical practitioner and on satisfaction of the Licensing Issuing Authority that the holder of the license of above age of 50 years is not suffering from any disease or disability as specified in the Second Schedule or any other disease or disability which is likely to cause the driving of a transport vehicle to be a source of danger to public or to the passengers and such endorsement is to be made on the driving license every year. The relevant provisions are available under section 4(2)(a) to (c) of the Ordinance, 1965. The said provisions are as under:- "4. Age limit in connection with driving of Motor Vehicles.--- (1) ...
(2)(a) No person above the age of fifty years shall drive a transport vehicle in any public, place unless the license entitling him so to do bears an effective endorsement by the licensing authority that such person has furnished a certificate in Form B as set forth in the First Schedule signed by a registered medical practitioner;
(b) The licensing authority shall not make on any license any such endorsement as is referred to in clause (a) unless it appears from the medical certificate furnished by the holder of the license that he is not suffering from any disease or disability specified in the Second Schedule or any other disease or disability which is likely to cause the driving by him of a transport vehicle to be a source of danger to the public or to the passengers;
(c) An endorsement made under the provisions of clause (a) shall be effective for a period of twelve months from the date thereof, but the said period may, from time to time, be extended by the licensing authority by a further period of twelve months at any one time, on the production by the holder of the license of a fresh medical certificate as required under clause (a) and on being satisfied there from all the holder of the license is not suffering from any disease or disability referred to in clause (b)."
9. Under section 11 of the Ordinance, 1965, a holder of a license of motorcar or motorcycle, the driving license is effective without its renewal for a period of three years in the case other than a paid employee and in any other case the said period is twelve months from the date of issue of last renewal. The said provision reads as under:-- "11. Currency of licenses.--- A license issued under the foregoing sections shall, subject to the provisions contained in this Ordinance as to the cancellation of licenses Wand the disqualification of holders of license for holding or obtaining licenses, be effective without renewal for a period upto three years in the case of license to drive a motorcar or motorcycle otherwise than a paid employee, and in any other case for a period of twelve months only from the date of issue of last renewal: 'Provided that no license shall be renewed unless the holder thereof has in his possession his own copy of the most recent version of the Pakistan Highway Code published by the Federal Government]."
10. From the above provisions of law it is clear that the license of the applicant was effective for a period of twelve months from the date of last renewal. The date of last renewal of the license of the applicant was 6-9-2003, as such the license of the applicant was effective upto 6-9-2004, thereafter, the license of the applicant ceased to become effective. The subsequent renewal has been made on 6-12-2004 which is after the incident in this case. Thus, the applicant was not authroised to drive the vehicle at the time of incident as such he has violated the provisions of section 3 of the Ordinance, 1965.
11. From the above provisions of law it is clear that under section 3 Of the Ordinance, 1965, the applicant 'was authorized to drive on effective license only. After it has ceased to be effective then his driving A of public service transport vehicle became unlawful, therefore, his case would fall within the definition of unlawful as mentioned in section 321, P.P.C. Thus, the applicant appears to have committed an offence punishable under section 322, P . P . C .
12. The sentence provided under section 322, P.P.C. Is simply Diyat. Nevertheless the Legislature have made the offence non-bailable. It is not the function of the Court to challenge and examine the wisdom of Parliament as to why this offence has been made non-bailable. The laws are made by the Parliament after taking into consideration several aspects available in the society. From the simple reading of the above provision of law it appears that the Parliament appear to be sensitive about the unlawful actions of the persons, who committed such action. It will be further noticed that the offence under section 320, P.P.C. Is bailable which is punishable upto ten years even if in the accident large number of people lose their lives though the punishment provided there under falls under the prohibitory clause of section 497, Cr.P.C. It appears that the Parliament took a view that because the action was lawful but it was due to some accident the offence was committed, therefore, the said offence has been made bailable. Thus, for each offence the Parliament have taken a different yardstick for making an offence bailable or non-bailable irrespective of the punishment provided there under.
13. Section 497, Cr.P.C. Deals with the grant of bail. In the Chapter of bail the Parliament have made two provisions, viz. Sections 496 and 497. The former deals with the cases of bailable offences whereas the latter deals with the cases of non-bailable offences. Under the per provision a discretion has been given to the Court to release or not to release an accused person in a case of non-bailable offence but the Court has been debarred from releasing an accused person if there appears reasonable grounds for believing that the accused is guilty of .Offence punishable with death or imprisonment for life or for 10 years. As such the discretion has to be exercised judiciously and keeping in view the nature of the offence, its impact on the society and persons directly affected and wisdom of the Parliament.
14. It will be noticed that the offences of accidents are increasing day by day and particularly from the hands of drivers, who ply transport vehicles If the person is holding a valid license and due to accident the offence is committed then he is required to be released on hail but if a person who is driving a vehicle without a license or an effective license then he will be driving the vehicle unlawfully. As such the cases of such person should be examined differently from the cases of persons whose actions are lawful and accidentally without any intention the offence is committed.
15. In order to curb the driving of a person who does not hold the license or an effective license the Ordinance,. 1965, has made the owner or person incharge of a motor vehicle responsible by directing such persons that they should not permit such drivers to drive the vehicle in public place.
The said provision is available in section 5 of the Ordinance, 1965, which reads as under:-- "5. Owners of Motor Vehicles not to permit contravention of section 3 or section 4.--- No owner or person incharge of a Motor Vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle."
16. From the _facts of the case it appears that owner of the Bus bearing No,JA-7070 had allowed and permitted the applicant to drive the vehicle in contravention of section 3 of the Ordinance, 1965, as the applicant was not holding effective driving license to drive the bus at public place, therefore, it appears that the owner has abetted the crime as defined in section 107. P.P.C. Which reads as under:- "107Abetment of a thing. A person abets the doing of a thing, who- ' First. Instigates any person to do that thing; or ' Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or ' Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing."
17. The case of the owner or person in charge of the vehicle of such type of cases would fall under third category of section 107, P.P.C. Therefore, the owner or person in charge of vehicle is also equally responsible for the offence committed by the applicant and his case would fall under section 114, P.P,C.
18. In order to curb the offence of accident by a person who is not holding license or an effective license, the owner or person incharge of the vehicle should be charged along with driver of the vehicle so as to fulfill the requirement of law, implement the wisdom, of the law-makers in making the provision in the shape of section 11 of the Ordinance, 1965, and to save loss of lives of the citizens. Therefore, the trial Court may examine the case of joining the owner or person incharge of the Bus bearing No,JA-7070 as a co-accused in this case on the application of prosecution nor on its own motion after giving him notice and providing him an opportunity of hearing and then may pass any appropriate order under the law.
19. No doubt the sentence provided under section 322, P.P.C. Is Diyat but the offence is non-bailable, therefore, the, applicant cannot claim bail in such offence as a matter of right. Reference is invited to Muhammad Siddique v. Imtiaz Begum 2002 SCM R 442. Nevertheless the punishment provided under section 320. P.P.C. Is ten years. The case of the prosecution is supported by the eye-witness and there are reasonable grounds to believe that the applicant is involved in the case.
Furthermore, at the time of the arrest of the applicant from the place of incident, he was found in possession of Charas, as such the possibility of the applicant being under the influence of Charas at the time of incident or addict of Charas cannot be ruled out. Clause 6 of Medical Certificate Form B of Schedule, I of the Ordinance, 1965, shows that the Medical Officer has to ascertain whether the driver shows any evidence of being addicted to, excessive use of alcohol tobacco or drugs, but it appears that the said examination has not been conducted properly. The Medical Officer should get the various tests conducted and blood examination report to verify the said facts. Such reports should be attached to the certificate, so that the driving license Issuing Authority can determine as to whether or not the person is addicted to any intoxicant substances or drug.
20. After considering the material available on the record I am of the considered view that the applicant is not entitled to the concession of bail, therefore, the application is dismissed.
21. However, f am conscious of the fact that the bail should not be withheld as punishment, therefore, I direct the trial Court to give preference to this case and complete the required formalities by giving short dates so that the case should be completed within a period of six months from the date of receipt of the order of this Court. At the same time the prosecution and the DPO, Karachi, (South) are directed to ensure the service of process of the trial Court. In case of non-service of the process upon the witnesses/accused within the required time, then the DPO in person should appear before this Court to explain the noncompliance of the orders of the Court.
The trial Court should send a copy of process issued to the S.H.O. To DPO for taking positive steps to get the process served upon the witnesses or accused. At the same time the Superintendent, Central Jail, Karachi, is directed to produce the applicant. Before the trial Court on the dates of hearing without fail. In case of non-compliance the trial Court may initiate necessary proceedings against the Superintendent Jail. If the case is not decided within the above period, then the applicant is at liberty to move fresh bail application before the trial Court. Which shall he decided without influence of the observations made in this order.
22. Before parting with the order I would like to draw the attention of the Driving Licensing Authority under the Ordinance, 1965. That they should examine the cases of driving license issued to persons of above 50 years of age, who are driving transport vehicles to ascertain whether the provisions of section 4(2)(a) to (c) have been complied with or not. In order to make the road safe and save the precious lives of the citizens. Various required tests and a report of blood sample of the drivers he obtained, who are driving passengers or goods vehicles, to ascertain whether they are addicts to any narcotic substance or drugs, therefore. a copy of the order be sent to the Central Police Office.
Karachi. For issuing directions to all concerned for strict compliance of the above provisions of law.
' A copy of the order be sent to DPO, Karachi (South) and Superintendent, Central Jail. Karachi, for information and compliance.