THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.1074 of 2019
Applicant : Ameer Hassan son of Muhammad Hassan is
present in person on interim pre-arrest bail.
Respondent : The State through Ms. Rahat Ahsan,
Additional Prosecutor General, Sindh along with ASI Liaquat Ali, police station Sachal.
Date of hearing : 08.08.2019
Date of Decision : 08.08.2019
ORDER
ABDUL MALIK GADDI J. Applicant/accused is present on interim pre-arrest bail granted to him by this Court vide order dated 01.08.2019 in Crime No.269 of 2019 registered at police station Sachal, District Malir, Karachi, under Sections 337-G/279/427/320 read with Section 322, PPC. Today this bail application is fixed for confirmation or otherwise.
2. The allegation against the applicant/accused is that on 21.05.2019 at about 06:45 a.m., when at the relevnt time, PC Nazeer Ahmed along with PC Ghulam Muhammad and Javed Ahmed of police station Sachal were performing their duties on their motorcycles near main road opposite to New Quetta Hotel, Jamali Pull, Karachi, the applicant, who was driving Hi-roof bearing registration No.CA-5844, white color and in the said vehicle on adjacent side, Sardar son of Muhammad Hussain was also available. The applicant was driven the said vehicle in rash and negligent manner and hit the said vehicle to the motorcycle of PC Nazeer Ahmed from front side and said PC Nazeer Ahmed fall down from the motorcycle and received serious injuries, thereafter, he shifted to Dow Hospital and then shifted to Civil Hospital for treatment, but latter on, during treatment, he was died on 24.05.2019.
3. It is stated by the applicant that he is innocent and has been falsely involved in this case due to enmity with police official; that in fact, he has not committed any offence, as stated in FIR; that on the relevant date and time, he took the injured PC Nazeer Ahmed for shifting to the hospital, although, he was injured through an accident by someone else; that case has been challaned and he is no more required for investigation; that some of the offences under which the present applicant has been booked though non-bailable, but the punishment of the said Sections do not fall within the prohibitory clause of Section 497, Cr.P.C., therefore, he prayed for confirmation of his bail.
4. Learned Additional Prosecutor General, Sindh for the State has opposed the grant of bail to the applicant by contending that the name of the applicant/accused is appearing in FIR with specific role that on the relevant date and time, the applicant, who was driving Hi-roof vehicle in rash and negligent matter and hit to the motorcycle of PC Nazeer Ahmed by damaging his motorcycle and due to said injuries, latter on said PC Nazeer Ahmed was died in Hospital during treatment. This incident has been witnessed by PC Ghulam Muhammad and PC Javed Ahmed, who in their statements recorded under Section 161, Cr.P.C. supported the case of prosecution.
5. I have heard the learned Counsel for the parties at a considerable length and have gone through the case papers so made available before me.
6. On perusal of record, it appears that case has been challaned against the applicant/accused and this applicant is no more required for investigation. It also appears from the record that the present applicant has been challaned under Section 337-G/279/427/320 read with Section 322, PPC inserted in final challan.
7. Admittedly, Section 320, 337-G, 427 and 279, PPC are bailable, whereas, Section 322, PPC though non-bailable, yet is not punishable with any period of imprisonment besides payment of Diyat. It is yet to be determined, whether the punishment of payment of Diyat amount, would bring the case of the applicant within the compass of prohibitory clause attached to Section 497(1), Cr.P.C. or whether the Section 322, PPC, would be applicable in the present case. It is not shown by the learned Counsel for the State whether punishment of payment of Diyat would correspond to sentence of imprisonment exceeding seven (7) years or more. As in that view of the matter the bail plea of the applicant would have been considered from a different aspect. Under Section 497, Cr.P.C. an offence punishable with ten (10) years imprisonment or more only falls within prohibitory clause of this Section.
8. It is the case of applicant that he did not commit any offence, as stated in FIR, but has been implicated in this case by the local police malafidely just to show their efficiency. Be that as it may, at this stage of the case, without entering into deep merits of the case, one cannot be kept in jail or sent to jail for a matter, which still requires further probe as to whether it was an offence of `Qatl-e-Khata`/ `Qatl-e-bis-sabab` or intentional act of the accused. In these view of the matter, I am of the view that the accused charged in such like situation would be entitled to concession of bail under Section 497(2), Cr.P.C. on the point of further inquiry. In this connection, I am supported with the case of Yousaf Khan v. The State (2000 P.Cr.L.J. 203) and Syed Asif Mateen Zaidi and 3 others v. The State (2008 P.Cr.L.J. 125).
9. In view of the aforesaid case laws, I have come to the conclusion that applicant/accused is entitled for concession of bail. Accordingly, the interim bail granted to the applicant/accused vide order dated 01.08.2019, is hereby confirmed on same terms and conditions. However, applicant/accused is directed to appear before the trial Court on each and every date of hearing to face trial.
10. It is made clear that above observations are tentative in nature and would not be influenced the trial Court while deciding the case of applicant on merits. It is made clear that in case, if the applicant/accused misuses the concession of bail during trial, then trial Court would be competent to cancel the bail of the applicant/accused without making any reference to this Court.
The bail application stands disposed of. Office is directed to immediately sent the copy of this order to trial Court for information and compliance.
JUDGE
Faizan A. Rathore/PA*