ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr.Bail.Appl.No.S- 891 of 2016
DATE ORDER WITH SIGNATURE OF JUDGE
25.11.2016.
Mr. Muzafar Ali Leghari, Advocate for applicant.
Mr. Shahid Shaikh, A.P.G for the State.
Syed Tarique Ahmed Shah, Advocate for complainant.
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SALAHUDDIN PANHWAR, J: Through instant application, applicant seeks post arrest bail in Crime No.35/2016 u/s 279, 320 PPC P.S. Tando Jam, Hyderabad.
2. Briefly, facts are that on 20.03.2016, complainant along with his brother Amir, wife Mst. Haseena, daughter Najma, daughter of Asad Ali Ameerzadi and other relatives were waiting for transport at main Mirpurkhas road at village Wadi Stop, when at about 1240 hours, a white colour car came and hit to them; complainant identified the driver of the car who Mehboob Memon doctor of Tando Jam of Government Hospital and was drunken; due to this accident Ameer Zadi expired whereas Najma sustained injuries; subsequently wife of complainant and Mst. Najma succumbed to injuries.
3. The learned counsel for the applicant has argued that the story alleged in the FIR itself seems to be false and fabricated; that actually the applicant stopped his vehicle to shift the injured to the hospital but was forcibly caught hold by some persons and handed over to police officials of PS Tando Jam; that all the offences are bailable but the concerned SHO refused to accept the surety; that FIR is delayed one without any explanation and in such circumstances the case in respect of applicant requires further inquiry and the applicant is entitled for concession of bail.
4. On the other hand, learned State Counsel and complainant’s counsel have opposed the bail to the applicant and submitted that due to rash and negligent driving with intoxicated condition, three persons lost their lives; that mechanical examination of the vehicle shows that it was fit vehicle, therefore, the accident occurred due to the absolute negligence of the applicant and thus he is not entitled for concession of bail. Counsel for complainant has relied upon 2011 SCMR 1227.
5. I have heard learned counsel for the parties and perused the material available on record.
6. The police record shows that at the time of driving the applicant was under the influence of alcohol and he hit the vehicle went out of control and three persons just standing at the main road Mirpurkhas and waiting conveyance lost their lives. It is not a mere case of an accident happened due to some negligence of driver but in the instant matter the applicant / accused while drinking intoxicant liquor caused death of three innocent persons. Drinking alcohol and coming out at a public place in a drunk condition is itself an offence hence act of holding the steering (driving) in such condition shall be unlawful. Thus, if such an unlawful act results into death of a person shall squarely fall within meaning of Section 321 of PPC which reads as:
“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 another person, is said to commit qatl-bis-sabab.”
Therefore, prima facie the offence with which the applicant / accused is charged falls within the mischief of section 322 PPC which is non-bailbale. Bail in such like situation is not the right of the accused but is a discretion which the Court has to exercise keeping in view all the facts, including manner of commission of the offence. I have no hesitation in saying that two similarly charged for one offence / section (two different FIRs) may well be dealt differently by the Courts while exercising discretion for sole reason of manner in which either of two chose to commit the offence. I am fortified by the view taken by the Honourable Supreme Court of Pakistan titled “Re-Majid Naeem v. The State”, in which the accused was participating in the car race and during which his car went out of the control and 5 persons lost their lives. The Honourable Supreme Court of Pakistan was pleased to place his case under Section 322 PPC and dismissed his bail application.
In this case, too prima facie the accused was intoxicated as it is transpired from the medical report yet was driving the car which act (driving under influence of alcohol) caused death of three innocent persons, therefore, the applicant / accused, who is doctor by profession cannot take any benefit of application of Section 320 PPC by police at first instance as his such act is not only of rash and negligent driving but also attracted section 322 PPC. At this juncture, it would be conducive to refer Paragraph No.10 of Majid Naeem case (2011 SCMR 1227), which is that:-
“At present, in view of the direct charge against the petitioner that he was driving the motorcycle 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 a right, we are of the considered view that, prima facie, because of nature of allegation levelled against the petitioner and the evidence so far collected during the investigation, the petitioner is not entitled for grant of bail.”
The said illegal/unlawful act prima facie connects the accused with the commission of offence under section 322 PPC wherein three innocent persons have lost their valuable lives without any fault on their part hence applicant / accused is not entitled for discretionary relief. Considering all attending peculiar circumstances of the case so also by relying upon the above case law, the bail application of the applicant stands dismissed.
7. The observations made hereinabove are tentative in nature and shall not prejudice the case of either party.
JUDGE
Tufail