1. In respect of an accident in which Muhammad Idrees, a young boy, met his death, a case under section 304, P. P. C. Has been registered against the two petitioners.
2. The case for the prosecution, briefly stated, is that Muhammad Bakhsh petitioner No. 1 who was an employee of the Railway Department as driver, took out the car from the garage and brought it on the back side of the same block, and leaving the keys in the car he himself proceeded to his quarter which was nearby. In his absence petitioner No. 2 Sajid Mahmud came and sat at the steering and fiddled with the instruments, as a result of which the car moved forward and crushed Muhammad Idrees.
3. The case at best even according to the F. I. R. Appears to be one under section 304-A, P. P. C. And, therefore, I allowed interim bail before arrest to the petitioners vide my orders dated 27-10-1979.
2. Mian Muhammad Bashir, Advocate for the complainant, and Mr. M. Anwar Ghuman, Advocate, for the State, have vehemently opposed the confirmation of bail. The learned State Counsel is assisted by Arshad Parvez A. S. I., Police Station, Naulakha, Lahore. Arshad Parvez A. S. I. Has stated that he has received instructions from the Martial Law authorities to submit a challan to the Martial Law authorities positively by tomorrow. As far as this aspect is concerned, this position would not be covered by Article 212-A of the Constitution, as it stands amended. The relevant wording is In respect of any matter, to which the jurisdiction of the Military Court or tribunal extends and of which cognizance has been taken by, or which has been transferred to the Military, Court or tribunal and all proceedings in respect of . . . . .--- There is no order on record from any competent authority transferring the case to the Military Court, and even if there was any, the consistent judicial consensus is that the Competence, the validity, the necessity, the bona fides or mala fides of the order would be justiciable issues, and it is well understood that the doctrine of necessity or the doctrine salus populi suprema lex est can be invoked to make a law and not to break a law. Each case and order will have to be examined on its particular facts and circumstances.
4. The learned counsel for the complainant has further argued that Muhammad Bakhsh petitioner had no authority to take the car from the garage as his boss was on tour and also submitted that Sajid Mahmood petitioner No. 2 did not possess a driving licence.
5. Whether Muhammad Bakhsh petitioner had the authority to take out the car from the garage or not would be a subject-matter of departmental inquiry or disciplinary action and it does not aggravate the offence under section 304-A, P. P. C. So as to convert it into an offence under section 304, P. P. C. Similarly, the fact that Sajid Mahmood did not possess a driving licence would not convert the offence under section 304-A, P.. P. C. To one under section 304, P. P. C. The gravemen of the offence under section 304-A, P. P. C. Is related to "rash or negligent act" and not to the possession of a driving licence. If We were to accept the contention of the learned counsel for the complainant, it would mean that if. a competent driver, who ha not been able to renew his licence in time, unfortunately happens to meet an accident, he may be booked for a murder, which would be an absurdity.
6. In this view of the matter, the interim bail allowed vide my orders dated 27-10-1979, is hereby confirmed. .