YOUSUF KHAN vs THE STATE

ORDER

1. ' The applicant seeks bail in a case under section 320/322/337-G, P.P.C. Pending trial before the Court of Sessions Judge, Malir, Karachi.

2. ' Prosecution case briefly stated is that the applicant while driving his Mini Bus on 30-1-1999 at about 8-30 a.m. Met with an accident, while coming from Malir, towards the City, causing the death of four persons and injuries to 14 persons near Al-Markaz Hotel on Shahrah-e-Faisal, Karachi. The applicant alone has been challaned for the alleged offence. The prosecution allegations against the applicant are that the applicant was driving the said mini bus rashly and negligently which resulted in the accident with a Truck coming from the opposite direction. The applicant is facing trial for the aforesaid offence before the learned Sessions Judge, Malir.

3. ' It is contended that the applicant was also badly injured and he remained in hospital for treatment for sufficient time, and, that the offences under sections 320 and 337-G, P.P.C. Are bailable while section 322 will not be applicable in the present case. It is alternatively argued that section 322 is not miserable with imprisonment and it is punishable only with Diyat. Marising his arguments, the learned counsel stressed that the offence does not fall within the prohibitory clause attached to section 497(1), Cr.P.C. He places reliance on 1998 M LD 1537.

4. ' Learned counsel for the State has opposed the grant of bail to the applicant contending that the P.Ws. Have fully implicated the applicant. In the accident 3 persons died and 14 others got injured and that section 322, P.P.C. Is a non-bailable offence.

5. ' Admittedly, the sections 320 and 337-G, P.P.C. Are bailable. Section 322, P.P.C. Though non-bailable yet is not punishable with any period of imprisonment besides the payment of Diyat. It is yet to be determined, whether punishment of payment of Diyat amount, would bring the case of the applicant within the compass of the prohibitory clause attached to section 497(1), Cr.P.C. Or whether section 322, P.P.C. 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 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 years imprisonment or more only falls within prohibitory clause of this section. There being no express expression of law that the punishment prescribed for an offence under section 322, P.P.C. Would attract the prohibitory clause, the law laid down in the case of Tariq Bashir PLD 1995 SC 34 would be applicable.

6. ' In view of the above, I am inclined to allow bail to the applicant subject to his furnishing one solvent surety in the sum of Rs,8,00,000 (Rupees eight lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.