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Criminal Miscellaneous Nos. 3156-B and 3176-B of 1983, decided on 31st December, 1983.

---S.497,161/164--Penal Code (XLV of 1860), 5.304-- Bail, grant of--Court for purpose of bail, held, has to see whether reasonable grounds to believe accused guilty of a non-bailable offence existing and that belief rests on accusations contained in First Information Report and statement of witnesses under section 161 /164, Cr. P C if any, and other special circumstances of case.

---S. 497--Penal Code (XLV of 1860), Ss.300,304 & 304-A-- Bail--Death by negligence--Accused having no motive or guilty mind to kill deceased who went for shooting on railway track with her free consent when hit by moving train--Accused only negligent to take precautions to meet accident and failing to obtain permission from Railway--Whether case coming within ambit of culpable homicide not amounting to murder and punishable under S. 304 or a case of death by negligence punishable under S. 304-A, a matter of further enquiry--Bail granted to accused.

---S.497-- Penal Code (XLV of 1860), S.304-- Bail--Law for purpose of bail, held not to be stretched in favour of prosecution and if any benefit of doubt arises it must go to accused.--[Benefit of doubt].

Amir v. The State P L D 1972 S C 277 rel.

Dr. Khalid Ranjha, Advocate assisted by Malik M. Pervaiz Akhtar for Petitioner (in Cr. Misc. No. 3176-B/83).

Abdul Rahim Tariq Alvi, Advocate for Petitioner (in Cr. Misc. No.3156-B/83).

Messrs M.Salim Shad and Altaf Muhammad Khan for the State.

Date of hearing: 31st December,1983.

Criminal Miscellaneous No. 3176-B/83 and Criminal Miscellaneous No. 3156-13/83 are applications for bail on behalf of Raja S. Akhtar and Nasir Khan petitioners respectively in a case under section 304, P.P.C. registered at P.S. Township, Lahore vide F.I.R. No. 244/83, dated 6th December, 1983.

2. The prosecution case is that Mst. Najma Mehboob, film Artist was engaged in shooting of film 'RICKSHAW DRIVER' on railway track near Race Course Level Crossing. The scene to be picturized was that a child was lying on the railway line and in order to save him from being run over by the train, she was to lift him from the track in front of the moving train. Mst. Najma Mehboob lifted the child from the track when she was hit by the train and expired on the spot.

3. Mr. Abdul Rahim Tariq Alvi, the learned counsel for Nasir Khan petitioner submitted that the name of the petitioner is not mentioned in the F.I.R. and that no overt act has been attributed to him. Dr. Khalid Ranjha, the learned counsel for Raja S. Akhtar petitioner submitted that the prosecution case accepted at its face value, the act of the petitioners does not fall within the purview of section 304, P.P.C.

On the other hand Mr. Saleem Shad and Mr. Altaf Muhammad Khan, the learned counsel for the State have seriously opposed these applications on the grounds that a case punishable under section 304, P.P.C. is fully made out against the petitioners. Mr. Altaf Muhammad Khan, the learned counsel for the State further submitted that the petitioner Raja S. Akhtar being Producer of the Film and Nasir Khan petitioner being Assistant Director of the Film, they were posted with the knowledge of picturization of the scene in question. Knowing that there was every likelihood of the accident and mishap, they did not take necessary precautions, so much so, they did not care to obtain the permission from the Railway Authorities for shooting on railway track and as such they are responsible for the probable consequence.

4. I have considered the arguments advanced by the learned counsel for the parties with care. It is well-settled that for the purpose of bail, the Court has to see whether there are reasonable grounds to believed that the accused has been guilty of a non-bailable offence and that the ion belief rests on the accusation contained in the F.I.R. and the statement of the witnesses recorded under section 161/164, Cr.P.C. if any, and other special circumstance of the case. For that I would like to reproduce the F.I.R.

From the F.I.R. it is clear that the petitioners had no motive to kill the deceased; that they had no guilty mind; that the deceased had gone for shooting on the railway track with her free consent; that by their acts the petitioners did not cause any hurt or harm to the deceased and that it is, at the worst, a case of death by negligence on the part of the petitioners which is punishable under section 304-A, P.P.C. The negligence on the part of the petitioners to take pre-cautions to meet the accident/ mishap and the failure to obtain permission from the Railway Authorities would not bring the case within the ambit of culpable homicide not amounting to murder punishable under section 304, P.P.C. It is at least highly doubtful that the negligence on the part of the petitioner;. tantamounts to culpable homicide not amounting to murder. In any case, the questions whether the death of Mst. Najma Mehboob was accidental or homicidal and if homicidal whether it was a case of culpable homicide not amounting to murder punishable under section 304, P.P.C. or it was case of death by negligence punishable under section 304-A, P.P.C., which is bailable, need further enquiry within the meanings of section 497 (2), Cr.P.C. Further the Honourable Supreme Court in a case 'Amir v. The State' PLD 1972 S C 277 has graciously observed that even for the purpose of bail, law is not to be stretched in favour of prosecution. If any benefit of doubt arises, it must go to accused. For all these reasons, I do not desire to withhold the concession of bail, the petitioners are, there fore, allowed bail in the sum of Rs. 10,000 with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Lahore (City).

M.Y.H. Bail allowed.

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