Bahram Khan, a young son of Dr. Sher Afgan Khan, Respondent No, 3, lost his life in a road accident in Islamabd. The unfortunate incident was reported at P.S. Margalla, on 22.10.2002 at 9.00 p.m. by Ajmal Khan Respondent No, 2 vide Report No,
38. According to FIR No, 331, the said complainant stated that while he was present on his Motorcycle at Karachi Company, Bahram son of Dr. Sher Afgan Khan who belonged to his area met him and he was asked to accompany the former to Blue Area where he had to go for an important piece of work. Bahram Khan proceeded in his Car No, LXZ-53 and he followed him on his Motorcycle. While they were going towards Blue Area at about 7.15 p.m., opposite PIMS Hospital on Khayabane-Quaid-e-Azam, when they reached near U-turn, Wagon No, K-1985 (Peshawar) and driven by Sheraz took U-turn without stopping and struck the car of Bahram Khan on the front left portion as a result whereof the front portion, of the car was completely destroyed while Bahram Khan was seriously injured and lost consciousness. Several passengers in the Wagon were also injured. He, with the help of the passers by who had gathered there took Bahram Khan to the Hospital on another 'car where the Doctor declared that Baharam Khan has died because of the injuries received in the accident. It was stated that the accident was the result of rash and negligent act of the Driver who took the U-turn at a fast speed. A case under Sections 324/337-G/279/427 PPC was registered, on the same day. On 12. 11. 2002 Dr. Sher Afghan addressed a complaint to the SHO, P.S., Margalla, Islamabad, stating that a Toyota Corolla Motor Car No, LXZ33 is owned by his elder son Amjad Ali Khan, Naib Zila Nazim, Mianwali. It was asserted that the car was purchased a few months back for Rs, 9,40,000/- and that it was a special model costing more than the other ordinary Toyota vehicles. by Rs, 1,50,000/-. He referred to Toyota Manuals wherein it is mentioned that the car is equipped with an SRS Airbag System to provide complete protection to the person who is driving the vehicle. Then he refers to the said incident and the fact that during the investigation the Driver of the Wagon was found to be at fault. He then states that the car was examined by a Motor Vehicle Examiner, Islamabad, who had reported that the said Airbag System had completely failed. He then stated that he is of the firm opinion that his son had died due to defective and sub-standard Airbag system which had failed to work as guaranteed in the said Manual. He requested that a case of murder and cheating be registered against the present petitioners and also the President, Toyota Motor Corporation of Japan.
2. A note was entered in the FIR vide Zimni No, 11 and Sections 322 and 420 PPC were added. Thus a case under the said provisions of law stands registered against the petitioners and Mr. Fujiocho, President, Toyota Motor Corporation of Japan. The present writ petition has been filed seeking quashment of the said FIR to the said latter extent. The petitioner was admitted to regular hearing on 3.12.2002 and notices were issued. In response learned AAG has put in appearance for the State while Mr. Muhammad Ikram Chaudhry, Advocate, appeared for the Respondent No, 3.
3. Learned counsel for the petitioners contends that on the face of it the FIR inasmuch as it involves the petitioners is mala fide, that upon its contents read with the said latter complaint off Respondent No, 3 a case under Sections 322 'and 420 PPC is not made out against the petitioners.
Further states that the Respondent No, 3 has already filed a suit for the recovery of damages against the petitioners and the said President of the said Corporation. According to the learned counsel the FIR has been got amended to put pressure upon the petitioners in the matter of the said civil suit for damages. Further contends that petitioners have never come into contact with Respondent No, 3 or his son who had purchased the car. According to the learned counsel no unlawful act has been committed by the petitioners within the meaning of Section 322 PPC and there is not even an allegation of commission of such an act while no case of fraud- and cheating stands made out upon a reading of the contents of the said FIR and the said complaint. He, inter alia, cites judgments in the cases of Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another (1996 SCMR 839), Malik Salman Khalid v. Shabbir Ahmad, D & S. J. Karachi and another (1993 SCMR 1873) and Ghulam Muhammad v. Muzammal Khan and 4 others (PLD 1967 SC 317).
4. Learned AAG is of the opinion that commission of an unlawful act is the main ingredient of an offence as defined in Section 322 PPC which is missing in the present case.
5. Learned counsel for Respondent No, 3 has not much to say in the matter of the inclusion of Section 322 PPC in the FIR. He, however, vehemently urges with reference to the relevant contents of the said Toyota Manual that an assurance was given of proper function of the said Airbag System which also involves payment of extra money apart from the cost of the vehicle and since the System had not worked when the car collided with the said Wagon, this constitutes, according to the learned counsel, constructive fraud and as such a case under Section 420 PPC has been rightly registered against the petitioners. He relies on the definition of constructive fraud as given in Black's Law Dictionary and also cites judgments in the cases of Brig. (Retd.) ImtiazAhmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (1994 SCMR 2142) and Malik Muhammad Tufail v. S.H.O. Police Station Mitha Dar, Karachi (South) and others (1989 SCMR 922).
6. I have gone through the file of this case as also the available records. Now before I proceed further I may stat3 that I have examined the judgments cited by both the learned counsel for the contesting parties. All these judgment's have been rendered by the Hon'ble Supreme Court of Pakistan in various facts and circumstances. To my mind the gist of the rule laid down by the Hon'ble Supreme Court on the subject of exercise of powers under Article 199 of the Constitution or Section 561-A Cr.P.C. by this Court is that the powers available to the Court in the matter are very wide but these have to be sparingly exercised only to prevent abuse of the process of law or Court as the ends of justice may require. In the said case of Brig. (Retd.) Imtiaz Ahmad, the Hon'ble Supreme Court has advised judicial restraint as it is so essential "to the continuance of rule of law" and that the review within the meaning of Article 199 of the Constitution is to remain strictly judicial and care has to be taken not to intrude upon the domain of the other branches of Government.
7. In the light of the said dictum, I have examined this case. Now Section 321 PPC which defines the offence of "Qatl-bis-sabab" may be reproduced here: "321. Qatl-bis-sabab.--Whoever, without any intention to cause death if, 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." Now it will be seen that mens-rea is not an ingredient of the said offence. However, as stated by the learned AAG the most important ingredient is "doing of any unlawful act" which becomes a cause for the death of another person. Now the Petitioner No, 1 is stated to be the Managing Director while A Petitioner No, 2 is said to be the Chief Executive of the Indus Motor Company Limited. It is an admitted fact that the said Company assembles/manufactures the Toyota Cars in Pakistan. Now the only act attributed to the said petitioners is that the Company, where they hold the said offices, has installed an Airbag System in the said car of the son of the Respondent No, 3, which did not function as stated in the said Manual. To my mind this cannot be termed as an unlawful act as envisaged by the said Section 321 PPC on the part of petitioners.
8. So far as Section 420 PPC is concerned the offence is defined in Section 415 PPC. Now unlike Section 322 PPC, mens-rea is an important ingredient of this offence. Suffice it to say that it is not even an allegation that the petitioners ever came into contact with Respondent No, 3 or his son who had purchased the car. Upon a plain reading of Section 415 PPC, constructive fraud as defined in the said Dictionary does not fall within its g ambit.
9. Now reverting back to the said dictum of the Hon'ble Supreme Court of Pakistan, this is a case where upon reading of the first report as also the said' latter complaint the case under the said two provisions does not stand made out. This is a stage where no other remedy is available to the petitioners and they have approached this Court invoking its jurisdiction . under the said Article 199.
Now so far as the said contention of the learned counsel for the petitioners as to mala fides is concerned, learned counsel for the Respondent No, 3 states that his client is an elected Member of the National Assembly and such a conduct cannot be attributed to him. Now no doubt that the said Dr. Sher Afgan is certainly a leader of our people. He has gone to hustings several times and has been returned to the Parliament by the people of his area. Of course, the grief of a father over the loss of a son in the prime of his youth is understandable. He has reported the said matter to the concerned SHO. Now borrowing the argument of learned counsel for Respondent No, 3 malafides may be mala fides, in fact and then these may be in law. It was for the said SHO to have read the contents of the said 'report and to have examined the said relevant provisions instead of proceeding in the matter and to blindly amend the .FIR. This latter act does not only constitute A legal mala fide but for all purposes is a mala fide, in fact. I may refer to a judgment by a Full Bench of this Court in the case of Malik Ghulam Mustafa Khar v. Pakistan and others (PLD 1988 Lahore 49)
(upheld by the Hon'ble Supreme Court in the judgment reported as PLD 1989 SC 26). Mr. Justice Muhammad Afzal Lone (as his Lordship then was) thus observed in para 53 of the said report appearing at pages 103 and 104: "Malice in law is thus, different from the malice as known in the common parlance which is usually associated with evil motive influencing the mind of the person committing the malicious act."
The distinction between the two categories of malice is also evident from the following observation in the judgment of Division Bench of the Karachi High Court in the case of Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others (PLD 1971 Karachi'514)
"....An order in violation of law is mala fide in law, though actual malice may not be present in the mind of the Authority passing the order...."
10. This may be a case in torts and the Respondent No, 3 has already sought relief in damages.
His suit is stated to be pending before a learned Civil Judge at Islamabad. Further the matter of jurisdictional defect vis-a-vis the Police is there inasmuch as it has proceeded to amend the FIR when a case, cognizable or otherwise, is not made out upon the facts stated before the concerned Police Officer. The present, therefore, is a case where ends of justice require that a certiorai be issued in the matter of the said FIR.
11.For all that has been discussed above, the said FIR inasmuch as it has been amended and a case under Section 322/420 PPC has been registered against the petitioners is declared to be without lawful authority and is accordingly, quashed.
12.A copy of this judgment be immediately remitted to the learned District Judge, Islamabad, who shall direct the learned Civil Judge in seizen of the civil suit filed by the Respondent No, 3 to proceed expeditiously and to decide the suit preferably before the year 2003 is out. No orders as to costs.