Tariq Saleem Sheikh, J. Through this application the Petitioner seeks pre-arrest bail in case FIR No.664/2021 dated 24.9.2021 registered at Police Station Cantt., Gujranwala. The said FIR was initially lodged under sections 337-F(i) and 337-F(v) PPC but during investigation sections 279, 334, 336 & 337-G PPC were added.
2. As per FIR, the prosecution case is that on 20.7.2021 at about 08:00 p.m. Complainant' s 17-year-old son Abdullah was on his way to Badoke when the Petitioner , who was negligently driving an improvised vehicle, crashed into him. As a result, he was grievously injured and his right leg had to be amputated.
3. The learned counsel for the Petitioner contends that the accident took place due to Abdullah' s fault. The Petitioner was not negligent. In any case, he submits, the Petitioner is entitled to bail as the offence falls within the ambit of section 279 PPC which is bailable.
4. The learned Deputy Prosecutor General assisted by the learned counsel for the Complainant contends that the Petitioner was driving an improvised vehicle without a licence. He had a duty to care towards the people using the road. The learned Law Officer maintains that the Petitioner has failed in that duty and is liable to criminal sanctions under sections 279, 334, 336, 337-F(i), 337-F(v), 337-G PPC. According to him, he is not entitled to bail, much less pre-arrest bail which is an extraordinary relief.
5. I have heard the learned counsel and examined the record. It is not the prosecution' s case that the Petitioner had a motive to hit Abdullah or that he hit him intentionally . If that had been so, he could be charged with attempt to murder or some such offence. Here, the allegation is that he caused an accident owing to rash and negligent driving.
6. Section 279 PPC criminalizes rash and negligent driving.
It stipulates that whosoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Section 279 PPC is attracted where- i) a person drives a vehicle or rides on a public way; ii) such driving or riding must be rash or negligent; and iii) it should endanger human life or is likely to cause hurt or injury to any person.
7. However , there may be situations where rash and negligent driving actually causes death or hurt to a person.
Those cases would attract section 320 or 337-G PPC.
8. The Pakistan Penal Code, 1860, does not define the term "vehicle". According to Corpus Juris Secundum , it is a general term and is broader than motor vehicle or automobile. It includes "every description of carriage or other artificial contrivance used or capable of being used as a means of transportation on land ... It is applicable to all kinds of contrivances fitted with wheels or runners for carrying something. It may include the machine drawing as well as the thing drawn." P. Ramanatha Aiyar 's Advanced Law Lexicon defines "vehicle" as a "means of wheeled conveyance of any description which is capable of being used on street, and includes a motor car, motor lorry, motor omnibus, cart, locomotive, tram car, hand cart, truck, motorcycle, bicycle , tricycle and rickshaw . ... any mechanically propelled vehicle, used or capable of being used for the purpose of road transport." Similarly , the word "driving" has wide connotation. In The State v. Taus Khan and 2 others (2001 SCMR 1416 : PLJ 2001 SC 687) the Hon'ble Supreme Court of Pakistan held that it cannot be restricted to a particular type of vehicle and includes anything from a bicycle to a heavy vehicle.
9. The question as to whether a person was driving a vehicle rashly or negligently at a particular time in a manner which endangered human life has to be proved through evidence. In Ravi Kapur v. State of Rajasthan (AIR 2012 SC 2986 : 2013 SCMR 480), the Supreme Court of India held that "rash and negligent driving should be examined in the light of the facts and circumstances of each case. It is a fact incapable of being construed or seen in isolation ... It must be examined in the light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently . Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently , it would amount to rash and negligent driving." In The State v. Taus Khan and 2 others (2001 SCMR 1416 : PLJ 2001 SC 687) the Hon'ble Supreme Court of Pakistan also held that the court should look at the "attending circumstances" to determine whether the driving was rash or negligent. However , one may find more elaborate discussion on the issue in the following extract of the judgment delivered by the Peshawar High Court in The State v . Mohib Gul [PLJ 1974 Cr .C.(Pesh.) 586]: "The legal principles in regard to cases of rash and negligent driving are more or less well-established. The mere fact that a vehicle is driven at fast speed would not prove rashness and neglig ence unless, of course, all the attending circumstances are taken into consideration. A person driving a motor-veh icle at the speed of say 20 miles an hour on a road on which children of small ages are running about would be rash and negligent. But the same would not be true in the case of a highway even if he was to drive at the speed of 70 miles an hour. The criterion, in nutshell in all such cases, is whether upon the evidence on record a person can be said to have been driving with due care and caution or else had been negligent i.e. had omitted to do something which a reasonable man, guided by the considerations which ordinarily regulate the conduct of human affairs would do, or done something which a prudent and reasonable man would not do."
10. The term "vehicle" occurs in section 279 PPC only while the expressions "rash or negligent" and "driving" are common in sections 279, 320 and 337-G PPC. They should be interpreted in the light of the jurisprudence discussed above. It is, however , importan t that the offence under section 279 PPC is distinct from the one under section 320 or 337-G PPC. An offender cannot legally be charged under sections 279 PPC and 320/337-G PPC simultaneously . In Ragho v. Emperor (AIR 1939 Patna 389) a Division Bench of the Patna High Court ruled that "imposition of separate sentences would not be justified where the acts constituting two different offences form part of the same transaction against the same accused." This dictum was followed in Badshahzada v. The State (1993 PCr.LJ 699), Haris Khan v. The State (PLD 1993 Peshawar 146), and Muhammad Hanif v. The State (1984 PCr.LJ 746).
11. In the instant case, the Petitioner was driving an improvised vehicle to transport a concrete mixer . The victim, Abdullah, has got his statement recorded under section 161 Cr.P.C. to the effect that he was driving it negligently .
Inasmuch as an accident took place and Abdullah was injured, section 337-G PPC would apply .
12. The offence under section 337-G PPC is punishable with arsh or daman specified for the kind of hurt caused and may also be punished with imprisonment of either description for a term which may extend to five years as to'zir . It is important to note that, so far as the sentence of imprisonment is concern ed, section 337-G PPC is exhaustive. It does not say that the offender shall also be liable to imprisonment provided for the hurt caused. In this view of the matter , the addition of sections 334, 336, 337-F(i) and 337-F(v ) PPC in the FIR is inapt and unwarranted.
13. Confronted with the above situation, the learned Deputy Prosecutor General contended that the Petitioner cannot take the benefit of section 337-G PPC because his vehicle was improvised and, more importantly , he had no licence to drive it. I am afraid, this contention deserves a short shrift because the said section does not make any such distinction. The above-mentioned act may constitute a breach of some other law. If so, the Petitioner would face the consequences stipulated in that statute. It is trite that while construing a criminal statute the court must be sure that the offence charged is within the letter of the law. In U.S. v. Wiltberger , 18 U.S. (5 wheat.) 76 (1820), the U.S. Supreme Court held: "The rule that penal laws are to be construed strictly is perhaps not much less old than the construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment."
14. In Tuck v. Priester , (1887) 19 Q.B.D. 629, 639 with reference to section 6 of the Copyright Act, 1862 (U.K), Lord Esher M.R. said: "We must be very careful in construing that section, because it imposes a penalty . If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction."
In T.W. Logistics Ltd. v . Essex County Council and another , [2021] UKSC 4, the UK Supreme Court held: "The criminal law is often formulated by reference to general standards of behaviour e.g. in relation to the offences of careless and inconsiderate driving and gross negligence manslaughter and the use of the standard of being 'reasonably practicable' in the offences under the health and safety legislation ... A court is not entitled to depart from the meaning of a statutory provision arrived at on the basis of ordinary principles of interpretation, on the grounds that it might have preferred greater precision in the formulation of an of fence."
Therefore, this application is accepted and ad-interim pre-arrest bail already granted to the Petitioner is confirmed subject to his furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lacs only) with two sureties in the like amount to the satisfaction of the learned trial Court.