' NASIR SAEED SHAIKH, J.---It is a petition moved by one Adil Naeem who is presently confined in Adiala Jail, Rawalpindi seeking his release on bail in a case registered vide F.I.R. No, 373 dated 5-12- 2010 under sections 302, 322, 324, 279, 109 P.P.C. Registered at Police Station Rawat District Rawalpindi.
2. The occurrence forming basis of the above noted F.I.R. Is based upon a Drag Car Race organized by one. Atif Sheikh within the locality of Bahria Town Phase VIII, Rawalpindi. It is alleged in the F.I.R.
That one Majid Naeem named in the F.I.R. Drove a car with full race on the road meant for the event and during his drive started rotating the car in a high speed and lost control of it crushing five persons named in the F.I.R. Into sudden death at the spot and leaving two persons seriously injured.
This shocking incident resulted into the registration of F.I.R. No, 373 dated 5-12-2010 at Police ,Station Rawat on the complaint of Muhammad Zarat S.-I. The investigation of the case was undertaken by the police and in addition to the driver of the car named in the F.I.R. Majid Naeem, Sh. Atif the organizer of the event, Ahmad Ali Riaz Chief Executive of Bahria Town, Waleed Aman marketing manager of Bahria Town, Col. Rafaqat Senior Manager Bahria Town along with the present petitioner Adil Naeem were found directly responsible for and involved in the Drag Car Race event.
The present petitioner was arrested on 13-1-2011 and was found guilty during the investigation and challan has been submitted against him on 31-1-2011 before the learned trial Court.
3. The petitioner along with Col. Rafaqat Mehmood his coaccused/senior Manager Bahria Town moved petition for post arrest bail before the learned ASJ/trial Court Rawalpindi for their release on bail which petition has been rejected vide order dated 1-3-2011. Hence this petition.
4. It is contended by the learned counsel for the petitioner that there is no evidence about the involvement of the petitioner into the alleged occurrence. It is further contended that the petitioner has been involved solely on the ground that he was the partner of the firm "HPR Associates" which firm was only carrying on the business of running a workshop for performance of car, Dyno tuning of the car etc. It is next contended that the Drag Car Race event was organized under a valid NOC which event was sponsored by PTCL as well as Messrs "D.G.M" security firm and the sponsors have been let off by the police. It is further contended that the event of Drag Car Race was being held in the presence of local police under their supervision, thus, the learned counsel concluded that the petitioner is entitled to be released on bail on the ground that his involvement in the event is not free from doubt and there is a scope for further inquiry into his guilt. The learned counsel has relied upon the judgments reported as 1998 M LD 1537 Lahore titled Muhammad Nadeem v. The State and 2001 YLR 1307 Lahore titled Siraj Din v. The State, in support of his contention that no prima facie case against the petitioner exists and he be released on bail.
5. Conversely, the learned Deputy Prosecutor General has opposed vehemently the request and prayer made by the petitioner for his release on bail. The learned D.P.-G. Has contended that three witnesses namely Shahid Jamal, Bilal Sadiq Constable and Sikandar Hayat Constable have made statements under section 161, Cr.P.C. Against the petitioner by alleging that the present petitioner was very much present at the spot on the fateful day and he was performing the function of a referee of the Drag Car Race and the statements of those three witnesses fully implicated the petitioner. It is further contended by the learned D.P.-G. That at this bail stage a deeper appreciation of the evidence is not to be undertaken by the courts and that prima facie the petitioner is involved in the event of Drag Car Race dated 5-12-2010, which resulted into death of five innocent persons and causing serious injuries to two other persons as well. He further contended that challan has been submitted against the petitioner. It is further submitted by the learned DPG that the matter has also been taken notice of by the Hon'ble Supreme Court of Pakistan in a Suo Motu Case No, 26 of 2010.
6. I have considered the arguments of learned counsel for the petitioner, learned D.P.-G. And have perused the record with their able assistance.
7. The incident forming basis of the criminal case in question took place on 5th of December, 2010 at about 4-30 p.m. The driver of the car Majid Naeem has been named as principal accused in the F.I.R. Who drove the car with full fast speed which later on was rotated in the same speed in order to add fun into the event and five valuable lives of persons watching as spectators of the Drag Car Race event were crushed to instantaneous death at the spot and two persons were also seriously injured which event statedly has the effect of trembling not only the seven affected families but the entire twin cities of Rawalpindi, Islamabad. The three witnesses namely Syed Shahid Jamal son of Jamalud-Din a private person and two constables Bilal Sadiq and Sikandar Hayat of Police Station Rawat fully implicated the present accused/ petitioner Adil Naeem as organizer of the Drag Car Race. The presence of present petitioner is specifically alleged in the statements of said three witnesses recorded under section 161, Cr.P.C. By the police. The petitioner was also acting as a referee in the Drag Car Race and thus his participation in the occurrence in question is prima facie established by the statements of those three witnesses. The offences alleged against the petitioner are punishable under sections 302, 322, 324 and 279 read with section 109, P.P.C. Which carry the sentences falling within the prohibitory clause of section 497 of Cr.P.C.
8. In an event of such like nature the courts of law cannot leave the fate of a case to be solely and wholly decided by the police authorities who in the first instance apply the offences of lesser penalties for the reasons best known to them at the time of registration of a case and then later on add the offences involving the higher gravity of punishments on account of the fact that the superior Courts take notice of the matter.
9. The offence punishable under section 322, P.P.C. Deals with the act of Qatl-bis-sabab which offence is defined in section 321 of P.P.C. And it reads as follows:-- "Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl- bissabab. "
Although the offence punishable under section 322 of P.P.C. Is punishable with Diyat only but in the schedule II of Criminal Procedure Code, 1898 the offence punishable under section 322 of P.P.C. Has been placed in column 5 as not bailable. The terms "bailable offence" and "non-bailable offence" have been defined in section 4 clause (b) in the following manner:--
(1) In this Code the following words and expressions have the following meanings unless a different intention appears from the subject or context:
(b) "Bailable offence", "Non-bailable offence", "Bailable offence" means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence:
10. An accused person who is charged with an offence of non-bailable nature cannot claim his release on bail as a matter of course as of right. The offences punishable under sections 302, 324 of P.P.C. Fall within the prohibitory clause of section 497 of Cr.P.C. Although section 322 of P.P.C. Is punishable with Diyat only but has been described as a non-bailable offence in the schedule II added to the Code. It is a settled proposition of law as laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as 2002 SCM R 442 titled Muhammad Siddique v. Imtiaz Begum and 2 others that in the non-bailable cases none can claim bail as a right even though the same do not A fall within the prohibitory clause of section 497 of Cr.P.C. In an earlier reported judgment 1994 PCr.LJ 406 titled Munir Hussain v. The State, a case against the accused petitioner was registered under section 322 of P.P.C. And the matter of grant of bail to the involved accused came up for hearing before Mr. Justice Khalil-ur-Rehman Ramday, the then Hon'ble Judge of Lahore High Court, Lahore who later on was elevated to the Hon'ble Supreme Court of Pakistan and he rejected the bail application of the accused for the offence under section 322 of P.P.C. By making the following observations in para No,5 of the judgment which is reproduced below: -- "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 Diyat 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."
' The same principle of law was followed in a judgment reported as 2005 PCr.LJ 1648 titled Atta Muhammad v. The State in which the offences punishable under sections 322, 427 of P.P.C. Were involved and a learned single Judge of Karachi High Court in paragraph No,19 made the following observations:-- "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 SCMR 442. Nevertheless punishment provided under section 320, P. P.C. Is ten years".
11. The documents annexed with the bail application reflect that CPO, Rawalpindi vide order dated 3-12-2010 annexure "J" at page 20 granted NOC for the Sports cum Social event in Bahria Town Rawalpindi subject to condition that no illegal activity will be allowed. The Deputy Inspector General of Police vide order dated 4-12-2010 declined to issue any NOC for the sports cum social event for which the application was moved by the co-accused Atif Sheikh on behalf of the Bahria Town authorities. The D.C.O Rawalpindi also declined to issue to grant NOC for the event in question which document has been placed by the petitioner himself along with the instant bail application at page 23 annexure "F". It is alleged in the F.I.R. That the driver of the car Majid Naeem was driving the car in a very rash and negligent manner at a very high speed and started rotating the car driven by him in a rash and negligent manner during his drive which act itself is an unlawful act and that is why the offence punishable under section 279 of P.P.C. Has been added. The petitioner was acting as a referee of the said drag car race and his presence at the spot is specifically evidenced in the statements recorded under section 161 of Cr.P.C. By the three witnesses named above. Keeping in view the occurrence narrated in the F.I.R., supported by the statements of three witnesses namely Syed Shahid Jamal, Bilal Sadiq Constable and Sikandar Hayat Constable who got recorded their statements under section 161 of Cr.P.C. This Court has no hesitation to hold that the petitioner is prima facie involved in the offences charged as a referee in the drag car race in question and cannot be held to be an altogether innocent participant in the occurrence in question. The offences charged are also added with the offence punishable under section 109 of P.P.C.; some of the offences fall within the prohibitory clause whereas the offence punishable under section 322 of P.P.C. Is non-bailable in nature and, therefore the petitioner cannot claim his release on bail as a matter of right. The petitioner has not even pointed out any circumstance or reasons for his false involvement in the Instant case nor any such point has been argued by his learned counsel before this Court. I do not consider it a fit case for the exercise of my discretion in extending the concession of bail to the present petitioner in view of the peculiar circumstances of the instant case. The case-law cited by the learned counsel for the petitioner is distinguishable on its own facts and has no application to the facts and circumstances of the case in hand.
12. In view of all the above circumstances, the instant criminal miscellaneous praying for the release of petitioner on bail is dismissed. As the challan in the case has already been submitted in the Court below therefore it is directed to the learned trial Court to conclude the trial of the case expeditiously as far as possible within four months. The I.O. Of the case is further directed to be available in the Court on each date of hearing in order to assist the Court in concluding the trial of the case within the framework given above. The Deputy Registrar (Judicial) to send a copy of this order to the learned trial Court immediately for compliance.