Qatl-bis-Sabab
2005 P Cr. L J 1648
[Karachi]
Before Rahmat Hussain Jafferi, J
ATTA MUHAMMAD---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No.225 of 2005, decided on 14th April, 2005.
(a) Criminal Procedure Code (V of 1898)-----
S. 497---Penal Code (XLV of 1860), Ss.322/427/279---Bail, refusal of---Accused, while driving a bus, had allegedly caused an accident in which a Police Officer going on a motorcycle was killed at the spot and some cars passing on the road side were damaged---Driving licence of the accused having expired, his driving of a public service transport vehicle was unlawful and he had, prima facie, committed an offence punishable under S.322, P.P.C. which was non-bailable and he could not claim bail as of right---Discretion in bail matters had to be exercised judiciously keeping in view the nature of the offence, its impact on the society and the persons directly affected thereby---Offences of accidents were increasing day by day particularly at the hands of the drivers who ply transport vehicles without a licence or a valid or effective licence Eye-witness had supported the prosecution case and reasonable grounds existed to believe that accused was involved in the case---Bail was declined to accused in circumstances.
Yousuf Khan v. The State 2000 PCr.LJ 203; Munir Hussain v. The State 1994 PCr.LJ 406 and Muhammad Siddique v. Imtiaz Begum 2002 SCMR 442 ref.
(b) Provincial Motor Vehicles Ordinance (XIX of 1965)---
---Ss. 3 & 11---Penal Code (XLV of 1860), Ss.,322, 427, 279, 107 & 114---Qatl-bis-Sabab---Abetment---Qatl-bis-Sabab by person not holding "licence" or "effective licence"---Owner or person incharge of the vehicle would also be charged under S.114, P.P.C. along with such person.
(c) Provincial Motor Vehicles Ordinance (XIX of 1965)---
----Sched. I, Form B, Cl.(6)---Issuance of Driving Licence---Ascertainment of facts by the Medical Officer---Medical Officer should get the various tests conducted and blood examination report to verify as to whether the driver showed any evidence of being addicted to, excessive use of alcohol, tobacco or drugs---Such report should be attached to the certificate, so that the driving licence Issuing Authority could determine as to whether or not the person was addicted to any intoxicant substances or drug.
G.M. Bhutto for Applicant.
Habib Ahmad, A.A.-G. for the State.
Professor Umar Farooq Khan for the Complainant.
ORDER
The applicant was arrested in Crime No.731 of 2004 in respect of offences punishable under sections 322, 427, 279, P.P.C. registered at Preedy Police Station Saddar Town, Karachi (South). According to F.I.R. the applicant was driver of a transport Bus bearing No.JA-7070, plying on Route 2-D. On 2-12-2004 at 1-45 p.m. an accident took place in which the applicant while driving the bus hit the motorcycle from its back and Cars bearing Nos.ADC-394, AFB-815 and ABD-362, which were parked by the side of the road were damaged. Due to the said accident S.-I. Amjad Ali Khan Tanoli, who was driving the motorcycle died at the spot. The applicant was arrested from the place of incident and Charas was secured from his possession. The complainant A.S.-I. Tariq Khan lodged the F.I.R. on behalf of the State.
2. The applicant moved a bail application before the trial Court but the same was dismissed on 4-2-2005, hence the present application.
3. Learned counsel for the applicant has argued that the offences are bailable except offence punishable under section 322, P.P.C. that is non-bailable but the sentence provided thereunder is only Diyat; that the said section is not applicable, hence the applicant is entitled to the concession of bail. He has relied upon the case of Yousuf Khan v. The State 2000 PCr.LJ 203.
4. On the other hand, Mr. Habib Ahmad, A.A.-G. and Professor Umar Farooq Khan, Advocate for the complainant have stated that the applicant was driving without any licence, therefore, the ingredients of section 322, P.P.C. are attracted; that the applicant was driving a bus in a rash and negligent manner, as such, his act was unlawful, which has resulted death of a person; that as the offence is non-bailable, therefore, the applicant is not entitled to the concession of bail. They have relied upon the case of Munir Hussain v. The State 1994 PCr.LJ 406.
5. I have given due consideration to the, arguments, gone through the material available on the record and find that the offences punishable under sections 427 and 279, P.P.C. are bailable. The offence under section 322, P.P.C. is non-bailable. Under that provision of law, if anybody commits Qatl-bis-Sabab then he is liable for punishment to Diyat. Qatl-bis-Sabab has been defined under section 321, P.P.C. which reads as under:-
"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 death of another person, is said to commit Qatl-bis-Sabab."
6. The main ingredient of section 321, P.P.C. is that if the act is unlawful then the offence of Qatl-bis-Sabab would be committed. In the present case I have gone through the driving licence of the applicant, which has been produced by him along with the bail application. It shows that it was issued on 7-9-1989. The date of birth of the applicant has not been mentioned in the driving licence because such column has been left blank by the Issuing Authority. The licence was valid by renewal upto 6-9-2003. The incident took place on 2-12-2004 as such when the incident took place, the applicant was having a licence but had already expired on 6-9-2003. After the accident, on 6-12-2004 the applicant got the licence renewed upto 6-9-2006. Under the law the applicant can drive the vehicle for one year without renewing the licence and thereafter the licence ceased to be an effective licence, unless it is renewed.
7. Under section 3 of the Motor Vehicles Ordinance, 1965 (hereinafter referred to as the "Ordinance, 1965"), a person is entitled to drive any motor vehicle or public service vehicle if he holds an effective licence authorizing him to drive such vehicle. The said section reads as under:-
"3. Prohibition on driving without licence.--- (1) No person shall drive a Motor Vehicle in any public place unless he holds an effective licence authorizing him to drive the vehicle; and no person shall so drive a. Motor Vehicle as paid employees or shall so drive a public service vehicle unless his licence specially entitles him so to do:
Provided that a person receiving instruction in driving a Motor Vehicle may, subject to such conditions as may be prescribed by Government in this behalf, drive a Motor Vehicle in any public place.
(2) No person shall drive a motor vehicle in any public place unless he had in his possession his own copy of the most recent version of the Pakistan Highway Code published by the Federal Government."
Thus, for driving any vehicle, the driver should have an effective licence authorizing him to drive such vehicle.
8. If the person has attained the age of 50 years then his licence is to be renewed every year after furnishing a certificate in Form as set forth in the First Schedule of the Ordinance, signed by the registered medical practitioner and on satisfaction of the Licensing Issuing Authority that the holder of the licence of above age of 50 yeas is not suffering from any disease or disability as specified in the Second Schedule or any other disease or disability which is likely to cause the driving of a transport vehicle to be a source of danger to public or to the passengers and such endorsement is to be made on the driving licence every year. The relevant provisions are available under section 4(2)(a) to (c) of the Ordinance, 1965. The said provisions are as under:--
"4. Age limit in connection with driving of Motor Vehicles.--- (1) ...
(2)(a) No person above the age of fifty years shall drive a transport vehicle in any public place unless the licence entitling him so to do bears an effective endorsement by the licensing authority that such person has furnished a certificate in Form as set forth in the First Schedule signed by a registered medical practitioner;
(b) The licensing authority shall not make on any licence any such endorsement as is referred to in clause (a) unless it appears from the medical certificate furnished by the holder of the licence that he is not suffering from any disease or disability specified in the Second Schedule or any other disease or disability which is likely to cause the driving by him of a transport vehicle to be a source of danger to the public or to the passengers;
(c) An endorsement made under the provisions of clause (a) shall be effective for a period of twelve months from the date thereof, but the said period may, from time to time, be extended by the licensing authority by a further period of twelve months at any one time, on the production by the holder of the licence of a fresh medical certificate as required under clause (a) and on being satisfied therefrom all the holder of the licence is not suffering from any disease or disability referred to in clause (b)."
9. Under section 11 of the Ordinance, 1965, a holder of a licence of motorcar or motorcycle, the driving licence is effective without its renewal for a period of three years in the case other than a paid employee and in any other case the said period is twelve months from the date of issue of last renewal. The said provision reads as under:--
" 11. Currency of licences.--- A licence issued under the foregoing sections shall, subject to the provisions contained in this Ordinance as to the cancellation of licences and the disqualification of holders of licence for holding or obtaining licences, be effective without renewal for a period upto three years in the case of licence to drive a motorcar or motorcycle otherwise than a paid employee, and in any other case for a period of twelve months only from the date of issue of last renewal:
[Provided that no licence shall be renewed unless the holder thereof has in his possession his own copy of the most recent version of the Pakistan Highway Code published by the Federal Government]."
10. From the above provisions of law it is clear that the licence of the applicant was effective for a period of twelve months from the date of last renewal. The date of last renewal of the licence of the applicant was 6-9-2003, as such the licence of the applicant was effective upto 6-9-2004, thereafter, the licence of the applicant ceased to become effective. The subsequent renewal has been made on 6-12-2004 which is after the incident in this case. Thus, the applicant was not authroised to drive the vehicle at the time of incident as such he has violated the provisions of section 3 of the Ordinance, 1965.
11. From the above provisions of law it is clear that under section 3 of the Ordinance, 1965, the applicant was authorized to drive on effective licence only. After it has ceased to be effective then his driving of public service transport vehicle became unlawful, therefore, his case would fall within the definition of unlawful as mentioned in section 321, P.P.C. Thus, the applicant appears to have committed an offence punishable under section 322, P.P.C.
12. The sentence provided under section 322, P.P.C. is simply Diyat. Nevertheless the Legislature have made the offence non-bailable. It is not the function of the Court to challenge and examine the wisdom of Parliament as to why this offence has been made non-bailable. The laws are made by the Parliament after taking into consideration several aspects available in the society. From the simple reading of the above provision of law it appears that the Parliament appear to be sensitive about the unlawful actions of the persons, who committed such action. It will be further noticed that the offence under section 320, P.P.C. is bailable which is punishable upto ten years even if in the accident large number of people lose their lives though the punishment provided thereunder falls under the prohibitory clause of section 497, Cr.P.C. It appears that the Parliament took a view that because the action was lawful but it was due to some accident the offence was committed, therefore, the said offence has been made bailable. Thus, for each offence the Parliament have taken a different yardstick for making an offence bailable or non-bailable irrespective of the punishment provided thereunder.
13. Section 497, Cr.P.C. deals with the grant of bail. In the Chapter of bail the Parliament have made two provisions, viz. sections 496 and 497. The former deals with the cases of bailable offences whereas the latter deals with the cases of non-bailable offences. Under the latter provision a discretion has been given to the Court to release or not to release an accused person in a case of non-bailable offence but the Court has been debarred from releasing an accused person if there appears reasonable grounds for believing that the accused is guilty of offence punishable with death or imprisonment for life or for 10 years. As such the discretion has to be exercised judiciously and keeping in view the B nature of the offence, its impact on the society and persons directly affected and wisdom of the Parliament.
14. It will be noticed that the offences Of accidents are increasing day by day and particularly from the hands of drivers, who ply transport vehicles: If the person is holding a valid licence and due to accident the offence is committed then he is required to be released on bail but if a person who is driving a vehicle without a licence or an effective licence then he will be driving the vehicle unlawfully. As such the cases of such person should be examined differently from the cases of persons whose actions are lawful and accidentally without any intention the offence is committed.
15. In order to curb the driving of a person who does not hold the licence or an effective licence the Ordinance, 1965, has made the owner or person incharge of a motor vehicle responsible by directing such persons that they should not permit such drivers to drive the vehicle in public place. The said provision is available in section 5 of the Ordinance, 1965, which reads as under:-
"5. Owners of Motor Vehicles not to permit contravention of section 3 or section 4.--- No owner or person incharge of a Motor Vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle."
16. From the facts of the case it appears that owner of the Bus bearing No.JA-7070 had allowed and permitted the applicant to drive the vehicle in contravention of section 3 of the Ordinance, 1965, as the applicant was not holding effective driving licence to drive the bus at public place, therefore, it appears `that the owner has abetted the crime as defined in section 107, P.P.C. which reads as under:--
"107 Abetment of a thing. A person abets the doing of a thing, who---First. Instigates any person to do that thing; or
Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing."
17. The case of the owner or person in charge of the vehicle of such type of cases would fall under third category of section 107, P.P.C. therefore, the owner or person in charge of vehicle is also equally responsible for the offence committed by the applicant and his case would fall under section 114, P.P.C.
18. In order to curb the offence of accident by a person who is not holding licence or an effective licence, the owner or person incharge of the vehicle should be charged along with driver of the vehicle so as to fulfil the requirement of law, implement the wisdom of the law-makers in making the provision in the shape of section 11 of the Ordinance, 1965, and to save loss of lives of the citizens, therefore, the trial Court may examine the case of joining the owner or person incharge of the Bus bearing No.JA-7070 as a co-accused in this case on the application of prosecution nor on its own motion after giving him notice and providing him an opportunity of hearing and then may pass any appropriate order under the law.
19. No doubt the sentence provided under section 322, P.P.C. is Diyat but the offence is non-bailable, therefore, the applicant cannot E claim bail in such offence as a matter of right. Reference is invited to Muhammad Siddique v. Imtiaz Begum 2002 SCMR 442. Nevertheless the punishment provided under section 320, P.P.C. is ten years. The case of the prosecution is supported by the eye-witness and there are reasonable grounds to believe that the applicant is involved in the case. Furthermore, at the time of the arrest of the applicant from the place of incident, he was found in possession of Charas, as such the possibility of the applicant being under the influence of Charas at the time of incident or addict of Charas cannot be ruled out. Clause 6 of Medical Certificate G Form B of Schedule I of the Ordinance, 1965, shows that the Medical Officer has to ascertain whether the driver shows any evidence of being addicted to, excessive use of alcohol tobacco or drugs, but it appears that the said examination has not been conducted properly. The Medical Officer should get the various tests conducted and blood examination report to verify the said facts. Such reports should be attached to the G certificate, so that the driving licence Issuing Authority can determine as to whether or not the person is addicted to any intoxicant substances or drug.
20. After considering the material available on the record I am of the considered view that the applicant is not entitled to the concession of bail, therefore, the application is dismissed.
21. However, I am conscious of the fact that the bail should not be withheld as punishment, therefore, I direct the trial Court to give preference to this case and complete the required formalities by giving short dates so that the case should be completed within a period of six months from the date of receipt of the order of this Court. At the same time the prosecution and the DPO, Karachi, (South) are directed to ensure the service of process of the trial Court. In case of non-service of the process upon the witnesses/accused within the required time, then the DPO in person should appear before this Court to explain the non-compliance of the orders of the Court. The trial Court should send a copy of process issued to the S.H.O. to DPO for taking positive steps to get the process served upon the witnesses or accused. At the same time the Superintendent, Central Jail, Karachi, is directed to produce the applicant before the trial Court on the dates of hearing without fail. In case of non-compliance the trial Court may initiate necessary proceedings against the Superintendent Jail. If the case is not decided within the above period, then the applicant is at liberty to move fresh bail application before the trial Court, which shall be decided without influence of the observations made in this order.
22. Before parting with the order I would like to draw the attention of the Driving Licensing Authority under the Ordinance, .1965, that they should examine the cases of driving licence issued to persons of above 50 years of age, who are driving transport vehicles to ascertain whether the provisions of section 4(2)(a) to (c) have been complied with or not. In order to make the road safe and save the precious lives of the citizens, various required tests and a report of blood sample of the drivers be obtained, who are driving passengers or goods vehicles, to ascertain whether they are addicts to any narcotic substance or drugs, therefore, a copy of the order be sent to the Central Police Office, Karachi, for issuing directions to all concerned for strict compliance of the above provisions of law.
A copy of the order be sent to DPO, Karachi (South) and Superintendent, Central Jail, Karachi, for information and compliance.
N.H.Q. /A-214/K Bail refused.
Xxxxxxxxxxxxxxx
Sec 322 is punishable with diyat only but has been described as a non-bailable offence in schedule II added to the code and a person who is charged with an offence of non-bailable nature can not claim his release on bail as a matter of course as of right.
Brother! Go through case law reported as.
2002 SCMR 442
1994 PCrlJ 406
2005 PCrlJ 1648
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