TARIQ PARVEZ, J. -- Tragic incident took place on at 4.30 p.m. which was reported at 5.50 p.m. on the same day, in the form of a complaint under Sections 279/109, PPC read with Sections 322/337- G, PPC. The complaint was drafted by Muhammad Zarrat, SI of Police Station Rawat. According to the complaint, the complainant along with four police constables named in the F LR- was present on special duty in Behria Town, Phase-VIII, Rawalpindi on A1-Race Road, when a motorcar taking part in the arranged car race, bearing registration No, 8881 with racecar No, 707, driven by Majid Naeem (petitioner) appeared in the race, which was driven with very high speed; he started spinning the car in circle and due to rash and negligent driving, the car went out of control and as a result of the spinning of the car, five persons, named in the FIR/complaint were killed, while few others sustained injuries, It was reported in the complaint that the person responsible for the incident escaped from the spot and a case was registered in the Police Station. Later on, Sections 302 and 324, PPC were added to the F.I.R, on the basis of investigation.
2. The present petitioner moved the Court of Sessions Judge, Rawalpindi for grant of bail, which was refused to him on 31.12.2010. On failure to get himself released on bail, the petitioner made second attempt by filing bail application before the Lahore High Court, Rawalpindi Bench, which was also dismissed on 03.05.2011 by means of impugned judgment. Now the present petition.
3. Learned counsel appearing for the petitioner has argued that similarly charged co-accused namely Adil Naeem has been granted bail by this Court in Criminal Petition No, 163 of 2011 on 12.04.2011, therefore, on application of rule of consistency, the petitioner is also entitled to same similarly relief. ' lt was vehemently argued that addition of Section 302/324, PPC was uncalled for and was an afterthought on the part of the investigation agency because on the given facts and circumstances the case as spelt out from the F.I.R, and from the later instigation, the offence if any at best was punishable under Section 322, PPC which proves that "whoever commits qatl-bis- sabab shall be liable to Diyat."
' The argument was advanced that though five persons have been killed due to rash and negligent driving but without there being any predetermination on the part of the petitioner or motive, the provisions of Section 302, PPC, which provides punishment for the offence of qatl-e-amd, are not applicable.
' His submission was that since punishment for the offence under Section 322, PPC is only Diyat and no sentence of imprisonment has been provided for the offence under the said Section, therefore, the petitioner is entitled to the grant of bail.
Learned counsel further argued that in absence of mens rea and preparation for the offence of Qatl-e-amd, Section 302, PPC would not be applicable.
' Learned counsel while relying upon the case of Muhammad Nadeem v. The State (1998 M LD 1537) states that the learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, in similar circumstances and for the offence under Section 320, PPC read with Section 322, PPC allowed bail to the accused of the cited case on the ground that it was a case covered within the definition of qatl-bis-sabab.
' He also relied upon the case of Yousuf Khan v. The State (2000 P.Cr.LJ. 203), wherein the learned Single Judge from the Sindh jurisdiction in a case, registered under Section 320/322, PPC for rash and negligent driving, allowed bail to an accused person on the ground that no sentence of imprisonment has been prescribed for the offence and the offence is punishable with Diyat only.
4. We have heard the learned counsel at sufficient length. His main stress was that while deciding the bail application of co-accused Adil Naeem (Criminal Petition No, 163 of 2001) this Court made following observations:-- "7. There is no cavil to the proposition that one of the pre-requisites for constitution of offence under Section 302, PPC is mens rea or the guilty intent which it has been argued, is missing in the instant case. The question whether in the facts and circumstances of this case, Section 322, PPC would be attracted which prescribes the punishment of "Diyat" or Section 302, PP,, would be moot points before the learned Trial Court seized of the trial and we in these proceedings would not like to express our opinion least it may prejudice the case of either side. Suffice it to say that in view of the nature of the allegations levelled, the evidence collected, the opinion of the District Public Prosecutor and the question as to which of the two afore-said provisions would be applicable makes out a case of further inquiry with regard to the guilt of the petitioner within the meaning of Section 497. Cr.P.C. That being so, he is entitled to bail. Consequently, by converting this petition into appeal, it is allowed and subject to petitioner's furnishing bonds in the sum of Rs, 500,000/- with one surety in the like amount to the satisfaction of the Trial Court petitioner shall be released on bail."
' His submission was that after making these observations, bail was allowed to co-aceused-Adii Naeem.
5. lt appears that the learned counsel for the petitioner has been misled in interpreting the observation of this Court referred to hereinabove. Undoubtedly this Court has observed that the question of application of provisions of Section 322. PPC or that of Section 302, PPC would be a' moot point before the Trial Judge, who shall be seized of the trial but it was simultaneously observed by this Court that "suffice it to say that in view of the nature of the allegations levelled, the evidence collected, the opinion of the District Public Prosecutor and the question as to which of the two afore-referred provisions would be applicable makes out a case of further inquiry "
(emphases provided).
6. The case of co-accused Adil Naeem stands on different footings because he was not taking part in the race by driving a racecar but was allocated the job of referee of the race; he did not participate in the driving of a vehicle much less the vehicle which caused death of five persons Whereas the present petitioner, as per the F.I.R, driving the vehicle bearing registration No, 888/KZ, which went out of control because of rash and negligent driving of the petitioner and has caused death of five persons besides causing injuries to few others.
' The role of the present petitioner has to be adjudged on the basis of nature of allegation levelled against him and the evidence collected. Since in this case, the nature of allegation against the petitioner is to the effect that he was driving a vehicle so rashly and negligently that it has caused death of five persons, which is, prima facie, proved on the basis of evidence so far collected during the investigation, his case is definitely not at par with the case of co-accused Adil Naeem.
7. The petitioner is presently charged under Sections 302/324/322/337-G/279 and 109, PPC. Section 302, PPC deals with the offence of qatl-e-amd whereas Section 322, PPC provides punishment for the offence of qatl-bis-sabab. Section 321, PPC defines qatl-bis-sabab as "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-bis-sabab."
8. If the arguments of the learned counsel for the petitioner is accepted and applied to all the cases of rash and negligent driving and bail is allowed to an accused of such offence, it would amount to issuance of licence to such accused persons, who might caused death of so many persons through the act of rash and negligent driving, which is against the spirit of law.
' Every sane person is presumed to know the consequences of any act of his commission or omission. A person driving a motorcar in a thickly populated busy bazaar of a city cannot be allowed to drive the vehicle at a speed of his own choice because it will put life of the others at risk.
Such person may claim benefit of bail although' he might have crushed a large number of people in a busy bazaar by driving at a speed, which he knows is likely to endanger the life of others. Every act of rash or negligent driving by a person neither can be condoned nor the discretionary power of the Court can be exercised in his favour because through his act of rash and negligent driving, a man of ordinary prudent can understand the consequences of his act that a large number of- people would lose their lives; such conduct of accused person has also to be kept in mind.
' Such act of driving in busy bazaar or in a car race where hundreds of people are present or spectator, the crushing to death of large number of persons is not just "rash or negligent" driving but would be a case of "extreme rash and extreme negligent" driving.
9. In consonance with the judgment of this Court in Criminal Petition No, 163 of 2011, we are not deciding the question of applicability of Section 322 or Section 302, PPC to the case in hand because final determination as to which provision of law shall be applicable is the prerogative of the learned Trial Judge; it is the Trial Court, seized of the trial, who, on the basis of material before it, will frame charge, irrespective of any observations made at bail stage by the higher Court including this Court.
' Since framing of the charge is the prerogative of the Trial Court, we shall not pre-empt it and shall leave it open upon the Trial Judge and if the learned Trial Judge proceeds to frame charge either under Section 322, PPC or Section 302, PPC, then the petitioner shall be free to challenge it, if so desires, which is the right of an accused person to challenge framing of the charge at the stage the same is being framed.
10.At present, in view of the direct charge against the petitioner that he was driving the motorcar by taking part in the car race and the said car went out of control because of rash and negligent driving of the petitioner as alleged, resulting in death of five persons and injuries to many others and that because even the offence under Section 322, PPC is not bailable and grant of bail is a discretionary relief, which cannot be claimed as of right, we are of the considered view that, prima facie, because of nature of allegation levelled against the petitioner and the evidence so far collect during the investigation, the petitioner is not entitled for grant of bail.
' For the foregoing reasons, we find no merit in this , petition, as such the same is dismissed and leave to appeal is declined.