MUHAMMAD NASEEM CHAUDHRI, J.- Case FIR No. 156 dated 10-3-1997 stands registered at Police Station Pasrur District Sialkot under section 320 Pakistan Penal Code at the instance of Ghulam Mustafa complainant who alleged that on the same date at 7.00 P.M. He was present at his shop of saw machine alongwith his brother Ghulam Murtaza and cousin Muhammad Bilal where they were working. In the contiguous tea stall his father Abdul Majid and his son Abdul Jabbar were taking the tea. Abruptly one 'Dalah' (vehicle) bearing No. FRH 1068 being driven rashly, negligently and carelessly by Muhammad Nadeem petitioner- accused son of Muhammad Ashraf case Jat resident of Chowk Bairiwala arrived and within their sight crushed to death his brother Abdul Majid and son Abdul Jabbar.
2. Muhammad Nadeem petitioner-accused is said to have been arrested on 17- 3-1997 whose bail application was initially dismissed on 22-3-1997 by the learned Area Magistrate with the reasoning that it is a case of "Qatl-bis-Sabab" prima facie falling under section 322 Pakistan Penal Code and that while driving the vehicle the petitioner was not in possession of a driving licence. Thereafter on 30- 4-1997 the learned Additional Sessions Judge, Sialkot dismissed the bail application of this petitioner on the ground that he was driving without licence and without route permit issued to him by the competent authority. On 9-8-1997 another bail application filed by Muhammad Nadeem petitioner was dismissed by the learned Judicial Magistrate Section 30 Pasrur with the reasoning that Section 322 Pakistan Penal Code is prima facie attracted which falls within the prohibitory clause. The learned Additional Sessions Judge, Pasrur dismissed another application of Muhammad Nadeem petitioner on 4-12-1997 by expressing that there was no fresh, ground for Filing the bail application as the one moved earlier was dismissed by his learned predecessor.
Muhammad Nadeem petitioner has filed this petition' to try his luck to be admitted to bail.
3. I have heard the learned counsel for Muhammad Nadeem petitioner as well as the learned Assistant Advocate General and gone through the record before me. The contention of the learned counsel for the petitioner is that it is a case prima facie falling under section 320 Pakistan Penal Code which is bailable and that section 322 containing the punishment for "Qatl-bis-Sabab" is not attracted. He added that section 322 Pakistan Penal Code provides "whoever commits qatl-bis- sabab is liable to Diyat" and thus an offence under section 322 Pakistan Penal Code does not fall within the prohibitory clause. He continued that Muhammad Nadeem petitioner was arrested on 17-3-1997 while today is 19-3-1998 whose continuous period of detention has exceeded one year and the trial has not concluded whereby he has earned valuable right of his admission to bail. He added that if the petitioner was not having the licence to drive, yet this aspect of the matter cannot be considered at the time of the disposal of the bail application which may be taken into account while determining the quantum of punishment in case of conviction of the petitioner. On the contrary learned Assistant Advocate General laid the emphasis that to persons lost their lives when Muhammad Nadeem petitioner was driving the vehicle without the licence and thus the learned lower Courts have rightly dismissed his bail applications successively.
4. Before appreciating the arguments addressed by the learned counsel for the parties it is proper to reproduce section 320 to section 322 Pakistan Penal Code as under:- "320 Punishment for qatl-i-khata by rash or negligent driving. Whoever commits qatl-i-Khata by rash or negligent driving shall, having regard to the facts and circumstances of the case, in addition of diyat, be punished with imprisonment of either description for a term which may extent to ten years.
321. Qatl-bis-Sabab. 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 other person, is said to commit qatl-bis-Sabab.
322. Punishment for qatl-bis-Sabab. Whoever commits qatl-bis-Sabab shall be liable to diyat."
5. I would express that a perusal of the FIR has made out that it is an alleged case of rash and negligent driving prima facie falling under section 320 Pakistan Penal Code which according to Schedule II to the Criminal Procedure Code 1898 is bailable. I would be glossing over an important aspect of the matter by expressing that it is a matter of common knowledge that whenever an offence of alleged rash and negligent driving resulting in the death of person(s) by drivers has been made non-bailable, the same is objected to and resented by the transporters who observe strikes and through amendment the offence is again declared as bailable, it also happened at the time of the initial enforcement of Qisas and Diyat Ordinance, 1990 which position is still holding the field i.e. Section 320 Pakistan Penal Code is bailable. A perusal of the FIR has made out that there was no previous animosity between Muhammad Nadeem petitioner-accused on the one side and both the deceased Abdul Majid and Abdul Jabbar as well as Ghulam Mustafa complainant on the other side.
6. The contention that Muhammad Nadeem petitioner was without driving licence and for that reason he is not entitled to be admitted to bail due to prima facie attraction of section 322 Pakistan Penal Code has no legal force. I would reproduce as under the last but one para from the ruling published as Muhammad Bakhsh etc. Versus The State, (PLD 1979 Lahore 941) which has settled this type of aspect of such matter:- "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 gravamen 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 has 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."
7. It shall not be out of place to express that omitted section 304-A Pakistan Penal Code stands substituted by Section 320 Pakistan Penal Code dealing with the cases of death allegedly committed through rash and negligent driving. Thus the dictum enunciated in the aforesaid ruling is also applicable in this case. The non-production of the driving licence by Muhammad Nadeem petitioner is no ground to withhold the discretion in his favour with respect to a bailable offence.
8. About the prima facie attraction of section 322 Pakistan Penal Code wherein punishment of payment of Diyat by the offender to the heirs of the victim due to "Qatl-bis-Sabah " is incorporated, suffice it to express that the bail application is to be disposed of within the framework 6f the provisions of section 497 Pakistan Penal Code. Section 322 PPC, the maximum punishment of which is the payment of Diyat, does not fall within the prohibitory clause even though the same is not bailable. The offences punishable with death or life imprisonment or ten years fall within the prohibitory clause as contemplated under section 497 of the Code of Criminal Procedure. Thus where the criminal liability of an accused of an offence is Diyat only the offence does not fall within the prohibitory clause. Where an offence does not fall within the prohibitory clause of bail is the rule and the rejection is an exception in view of the ruling published as Tariq Bashir and others versus The State (PLD 1995 Supreme Court 34).
9. This is the proper stage to express that the salutary principle for the interpretation of Penal Law, as is evident from "Maxwell on the Interpretation of Statutes (Twelvth Edition) by P.St. J. Langan, page 239" is reproduced below:- "The principle applied in construing a penal Act in that if, is construing the relevant provisions, there appears any reasonable doubt or ambiguity, it will be resolved in favour of the persons who would be liable to the penalty" 1953 1 W.L.R. 312).
If there are to interpretations possible, I am persuaded to accept that interpretation which is more lenient and favours the accused person. Technically speaking the sentence for the commission of an offence under section 320 Pakistan Penal Code is graver being in addition to diyat with imprisonment for a term which may extend to ten years while under section 322 Pakistan Penal Code the accused of qatl-bis-Sabab is liable to diyat only. However, section 320 Pakistan Penal Code is bailable which prima facie is attracted in cases of death by alleged rash and negligent driving. Thus the matter has to be considered and processed with in this perspective in favour of the petitioner-accused.
10. From what has been expressed above, it can safely be held even at this bail stage that Muhammad Nadeem petitioner-accused is prima facie liable under section 320 Pakistan Penal Code which is bailable and he is entitled to be admitted to bail as of right as contemplated under section 496 Pakistan Penal Code.
11. This petitioner was arrested on 17-3-1997 while today is 19-3-1998 The Area Magistrate is said to have been transferred without substitute. There is no likelihood of the conclusion of the trial in the near future. The continuous period of detention of Muhammad Nadeem petitioner has exceeded one year and he has earned a valuable right, for his admission to bail in terms of Section 497 of the Code of Criminal Procedure who cannot be termed to be a hardened, desperate or dangerous criminal.
12. For what has been said above, I hold that it is a fit case for the admission of Muhammad Nadeem petitioner to bail. Consequently I accept this application and admit Muhammad Nadeem petitioner to bail in the sum of Rs. 1,00,000/-(One Lac) with one surety in the like amount to the satisfaction of the learned Senior Civil Judge/Judicial Magistrate Section 30 Cr.P.C., Sialkot with the direction to appear before the learned trial Court on every date of hearing failing which he shall be liable to be proceeded against in accordance with law. After attestation of bail bond the papers shall be sent to the learned Area Magistrate by the learned Senior Civil Judge/Judicial Magistrate Section 30, Sialkot for attaching the same with the challan file.