AMEER KHAN Versus State

ORDER

1. IRSHAD ALI SHAH, J.--- It is alleged that the applicant while driving truck trailer bearing registration No.JU-8365 in rash and negligent manner ran over Abdul Waheed, as a result whereof he lost his life with damage to his motorcycle, for that an FIR was lodged by complainant Imran Ali with Police Station Bhirya. The applicant sought for his release on bail by filing such application. It was dismissed by trial court and he now sought for his release on bail from this court by way of instant application under section 497, Cr.P.C.

2. It is contended by learned counsel for the applicant that he being innocent has been involved in this case falsely, there is delay of about two days in lodging of the FIR, all the penal sections applied in FIR are bailable. Section 322, P.P.C. was applied to the case by police subsequently, that too without any justification, same even otherwise is not entailing the punishment of imprisonment. By contending so, he sought for release of the applicant on bail as according to him his case is calling for further inquiry. In support of his contentions he relied upon case of Tariq Mehmood v. The State which is reported at 2005 YLR 1968, and case of Yousuf Khan v. The State which is reported at 2000 PCr.LJ 203.

3. Learned counsel for the complainant has opposed to grant of bail to the applicant by contending that he at the time of incident was having no valid licence to drive a truck trailer. In support of his contention he relied upon case of Atta Muhammad v. The State which is reported at 2005 PCr.LJ 1648, and case of Majid Naeem v. The State and others which is reported at 2011 SCMR 1227.

4. In rebuttal to above, it was stated by learned counsel for the applicant that the applicant was having valid licence at the time of incident but it was not secured by police during course of investigation at the instance of the complainant party. By contending so, he produced photo stat copy of driving licence of the applicant.

5. Learned DPG has adopted the arguments which were advanced by the learned counsel for the complainant.

6. I have considered the above arguments and perused the record.

7. The FIR was lodged with delay of two days to the incident, such delay could not be lost sight of. All the penal sections applied in FIR are bailable in its nature. Section 322, P.P.C. was applied to the case by police subsequently. Whether the police was justified to apply section 322, P.P.C. to the case on conclusion of the investigation? Such controversy could not be resolved by this Court at this stage. Be that as it may, there is no denial to the fact that section 322, P.P.C. is carrying with it, punishment of 'Diyat' only. No express provision of law existed to show that the punishment of 'Diyat' would attract the prohibitory clause of section 497, Cr.P.C. In these circumstances, it could be concluded safely that the case of the applicant is calling for further inquiry which is justifying his release on bail pending trial.

8. "The case law which is relied upon by the counsel for the complainant is on distinguishable facts and circumstances. In case of Atta Muhammad the bail was refused to accused mainly for the reason that he was having driving licence which was found to have been expired much before the date of incident. In the instant case, the driving licence of the applicant, the copy whereof is produced before the court is valid up to 11.12.2021. In case of Majid Naeem the main reason for refusal of bail to the accused was that, it was case of car race in bazaar a public place whereby five persons lost their lives and large number of persons sustained injuries. On conclusion of investigation sections 302, and 324, P.P.C. were also applied to the case by the police. The instant matter is not relating to car race in bazaar and section 302 or 324, P.P.C. are not applied in case even by police on conclusion of the investigation."

9. In view of the facts and reasons discussed above, while relying upon the case law which is referred by learned counsel for the applicant, the applicant is admitted to bail in the present case subject to his furnishing surety in the sum of Rs.300,000/-and PR bond in the like amount to the satisfaction of learned trial court.

10. The instant bail application is disposed of accordingly.

11. MQ/A-62/Sindh Bail granted.