' MUHAMMAD TASNIM, J.---Applicants (1) Abdul Shakoor, (2) Imtiaz Ahmed, (3) Ayaz Ahmed and (4)
Riaz Ahmed are booked in Crime No,201 of 2011 at Police Station Baghdadi dated 5-8-2011 registered under sections 322/337-H1427/34, P.P.C.
2. Initially applicants applied for bail before I-Additional Sessions Judge, Karachi-South, who dismissed their bail application per order dated 25-8-2011. Against the aforesaid order present bail application has been filed.
3. Facts as set out in the F.I.R. Are that father of applicants had constructed the RUQYA MANZIL building who rented out the tenements to various tenants on pugri basis. After the death of father of applicants the rent was being collected by the applicants. It is further alleged in the F.I.R. That due to failure of sewerage system of the building sewerage water damaged the load bearing pillars and water accumulate on the ground floor godowns. The applicants were requested to arrange for repair of sewerage lines and drain out the accumulated water from the godowns as the water was damaging the foundation of building. It is further alleged that certain amount was also contributed by the tenants of the building to the applicants but they did not get the repair of sewerage lines and to drain the sewerage water out from ground floor godowns, which resulted collapse of entire building on 4-8-2011 whereby number of tenants lost their lives and some were seriously injured.
4. Learned counsel for the applicants in support of the bail application has submitted that applicants have been charged under section 322, P.P.C. Which provides no punishment except payment of Diyat and he further submits that other two sections for which the applicants have been charged, namely 337-H and 427, P.P.C. Are bailable. Learned counsel says that the allegations against the applicants are general in nature and it is yet to be decided as to whether the applicants have committed any unlawful act which has made basis of collapse of the building whereunder number of persons have died and number of persons have been injured. Learned counsel has invited my attention to the provisions of section 321, P.P.C. Whereby Qatl-bisSabab has been explained that 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 Qatlbis-Sabab. Learned counsel says that it is yet to be determined as to whether any unlawful act was committed by the present applicants or not. He says that even if an unlawful act has been committed by the applicants in terms of section 322, P.P.C. No punishment can be inflicted except the Diyat as law does not provide the same. Learned counsel says that learned trial Court has dismissed the bail application without application of judicial mind to the record, law and the case-law cited by learned counsel for the applicants. Learned counsel for the applicants has also submitted that most of the legal heirs of the person who died due to collapse of the building have filed their affidavits before this Court and they are present in Court whereby the legal heirs of the deceased person have exonerated the present applicants from the charges levelled against them. In support of his contentions learned counsel for the applicants has placed reliance on the cases of (1) YOUSUF KHAN v. THE. STATE (2000 PCr.LJ 203), (2) TARIQ MAHMOOD v. THE STATE (2005.
YLR 1968) and (3) MUKHTIAR HUSSAIN SHAH v. THE STATE (2007 YLR 2832).
5. On the other hand, learned APG has not opposed the grant of bail. However, she has submitted that there was negligence on the part of applicants which has caused the incident.
6. I have heard the learned counsel for the parties and have gone through the record so also the case-law cited at the Bar.
7. It is alleged in the F.I.R. That number of times complaints were made to the applicants for maintenance of building and no action on the part of applicants was taken and due to such inaction on their part has resulted in the collapse of the building. It is yet to be determined as to whether present applicants were responsible, for maintaining the building or due to their inaction the building had collapsed or they have committed any unlawful act due to which building has collapsed. These all questions cannot be decided at this stage unless the evidence of prosecution is recorded. The provisions of section 322,, P.P.C. Have' come up for consideration before a learned Single Judge of this Court (as he then was) in the case of YOUSUF KHAN and the learned Judge while dealing with the provisions of section 322, P.P.C. Has observed as under:- "Admittedly, the sections 320 and 337-G, P. P. C. Are bailable section 322, P.P.C. Though non- bailable yet is not punishable with any period of imprisonment besides the payment of Diyat. It is yet to be determined, whether punishment of payment of Diyat amount, would bring the case of the applicant within the compass of the prohibitory clause attached to section 497(1), Cr. P. C. Or whether section 322, P.P.C. Would be applicable in the present case."
8. The provisions of section 322, P.P.C. Also came up for consideration before the learned Single Judge of the Lahore High Court who while dealing with the provisions of section 320, P.P.C. Along with provisions of section 322, P.P.C. Has observed as under:-- "6. Admittedly section 320, P.P.C. Is bailable under which the challan has been submitted in Court.
Even otherwise section 322, P. P. C. Though was not bailable yet is not punishable with any period of imprisonment besides the payment of Diyat as held in Yousuf Khan v. The State 2000 PCr.LJ Karachi 203. It is yet to be determined whether punishment for payment of Diyat amount, would bring the case of the petitioner within ambit of prohibitory clause of section 497(1), Cr.P.C. Learned counsel for the complainant as well as counsel for the State has failed to show whether punishment of payment of Diyat corresponding to sentence of imprisonment exceeding seven years or more bringing it within the prohibitory clause of section 497, Cr.P.C."
9. The last judgment cited by learned counsel for the applicant in the case of MUKHTIAR HUSSAIN SHAH an eminent Judge of Lahore High Court who was subsequently elevated to the Hon'ble Supreme Court of Pakistan has dealt with the provisions of sections 302 and 322, P.P.C. And has observed as under:-- "..Investigating Officer had expressly observed that the case in hand did not attract the provisions of section 302, P. P. C. But the same attracted an offence under section 322, P.P.C. Read with section 34, P.P.C. An offence under section 322, P.P.C. Does not carry any sentence of imprisonment. It is admitted at all hands that so far no challan has been submitted in connection with the present case. The petitioner is languishing in Judicial lock-up and his physical custody is not required by ,the police at this stage for the purposes of investigation."
10. An examination of the provisions of section 322, P.P.C. Would show that no punishment of any period has been provided except the payment of Diyat. It is yet to be determined as to whether the punishment of payment of Diyat amount would bring the case of B applicants within the prohibitory clause of section 497, Cr.P.C. Apart from the above two other provisions of law for which the applicants have been charged are bailable and no definite finding can be recorded at this stage as it will amount to deeper appreciation of the record which may harm the pending proceedings. A tentative assessment of record shows that present applicants have made out a case of further enquiry in terms C of subsection (2) of section 497, Cr.P.C. In view of affidavits filed by the legal-heirs of the deceased persons exonerating the present applicants lc from the charge.
The affidavits at the bail stage have been taken into consideration by the Superior Courts.
Reference can be made to the ID cases of (1) REHMAT ALI AND ANOTHER v. THE STATE (1979 SCMR 30), (2) MUHAMMAD NAWAZ alias NAJJA v. THE STATE (1991 SCMR 111) and (3) SYED ZAHID ALI v. THE STATE (1993 PCr.LJ 1489). In the case of SYED ZAHID ALI a learned Single Judge of this Court (as he then was), while dealing with the affidavits filed by the prosecution witnesses at the bail stage, has dealt with the point in the following words:- "........... However, the main question' which requires consideration is, whether the affidavits said to have been sworn by the P. Ws. Are authentic since they were sworn before the Oath Commissioner and not before any Officer of the learned trial Court. The Courts have always disapproved filing of such affidavits which have been sworn not before the Court, but before the Oath Commissioners and their authenticity is, consequently, questionable. Although, Mr. Raja Sikander Khan, states that the P. Ws. Who had sworn the said affidavits were also present before the Court at the time of the hearing of the bail application but nothing to such effect can be spelt out from the order passed by the learned Judge dated 4-2-1992. Although, I agree with the learned counsel for the applicant that when the main witnesses in the case come forward and swear affidavits not supporting their earlier version recorded by the police under section 161, Cr.P.C., the accused in such case should be released on bail because there would be no likelihood of the accused being convicted in the case but some proof must first be produced before the Court in regard to the authenticity of such affidavits."
11. In the circumstances, applicants have made out a case for grant of bail. Accordingly, they are admitted to bail on their furnishing solvent sureties in the sum of Rs, 300,000 (Rupees three hundred thousand) each with P.R. Bonds in the like amount to the satisfaction of learned trial Court.
12. The observations made herein above are tentative in nature and shall not affect the merits of the case triable by the trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.