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Criminal Bail Application No. 1115 of 1985, decided on 22nd September, 1985.

‑‑‑Ss. 304, 304‑A & 299‑‑Distinction between Ss. 304‑A & 299, P.P.C. though thin but substantial‑‑Rash and negligent driving does not contemplate mens rea‑‑Section 299, P.P.C. contemplates guilty mind of a person who by doing an act is likely to cause death‑‑Mind of doer of act provides guidance to arrive at conclusion whether act was merely rash or negligent or was of a nature which should normally put doer of act in category of such persons who know act is likely to result in death.

‑‑‑S. 498‑‑Penal Code (XLV of 1860), S. 304‑‑Bail‑‑Refusal of Accused at time of accident was driving vehicle fast and had also broken traffic signal on a frequented road‑‑Accused not found to be having any driving licence‑‑Accused trying to tamper with evidence also‑‑Accused, could have avoided such event not merely by avoiding rash act but also by avoiding any act which was likely to cause death‑‑Accused, held, had to be saddled with liability that he knew that death was likely to be caused by act of such nature‑‑Bail before arrest to accused declined in circumstances.

‑‑‑S. 498‑‑Penal Code (XLV of 1860), S. 304‑‑Accused giving certain amount to heirs of deceased‑Said amount given to tamper daughter of deceased, who was an eye‑witness‑‑Act of accused, held, could be a reason to refuse him bail.

Umer Farooq Khan for Applicant.

Sattar A. Shaikh, Addl. A.‑G. for the State.

The applicant is stated to be a taxi driver. On 14‑5‑1985 at about 5‑00 p.m. he was driving a Taxi bearing No. 846‑213 on main Shahra‑e‑Faisal, Karachi. Near Chanaiser Halt the applicant hit against a Scooter bearing No. KCN‑4450. The deceased alongwith No children was on the Scooter. On account of impact the deceased, who was aged about 50 years, died and the children were injured. The incident was witnessed by Irshad Ahmad and Mst. Farha. The later Farha is the daughter of deceased, who has also received injuries.

While incident occured more than four months back, the applicant was untraceable, so that, the police was not able to arrest him. No doubt he has made application for bail before the Sessions Court, but even after rejection of the said application the accused had made himself scarce.

S.I.P. Nazir Hussain, has stated before me, that the impact occured on account of fast driving by .the applicant. He also states, that the applicant had broken traffic signal. The Investigating Officer has alleged, that applicant does not have a driving licence and when asked the applicant stated in Court, that he had a licence but could not produce it.

The case is registered under section 304, P.P.C. and such offence is non‑bailable. Mr. Umer Farooq, however, contends, that the offence may at Most fall under section 304‑A, P.P.C. which is bailable. There is no doubt, that there is a distinction between the offences and I propose to draw the line of distinction in such case.

While section 304‑A, P.P.C. speaks of an act which is rash or negligent, section 299, P.P.C. speaks of the doing of an act with the knowledge that such act or omission is likely to cause death. The distinction no doubt is thin but it is substantial. While rash or negligent driving does not contemplate mens rea in the sense that the man knew that he was likely to cause death, section 299 contemplates guilty mind of person who by doing an act is likely to cause death. In either case the mind of the doer of the act provides sufficient guidance to arrive at the conclusion whether the act was merely rash or negligent or the act was of the nature which should normally put the doer of the act in the category of such persons who know the act is likely to result in death In the instant case the applicant was driving his vehicle on one of the busiest roads of Karachi. The duty fell on him to take extreme care to avoid, the happening of any event which was likely to cause death. Such avoidance could be obtained not merely by avoiding rash act but also to avoid any act which was 'likely to cause death. The use of word 'likely' conveys significance. It means a person while doing an act should take all such measures as to obviate any chance or likelihood of death. Applying the principle that the applicant was driving vehicle fast and had also broken traffic signal on a frequented road like Shahra‑e‑Faisal, the applicant has to be saddled with liability that he knew that death was likely to be caused by an act of such nature. What is more there is no evidence before me that the applicant had any licence.

In these circumstances, I am not inclined to grant bail and that too before arrest to the applicant. This application is dismissed.

Mr. Umer Farooq stated, that the wife of the deceased has been compensated. The wife of deceased states she has not received any amount but her brother, Muhammad Idrees, is present and he states, that as of charity the applicant has paid a sum of Rs.8,000. He is prepared to return the amount. He is directed to produce the amount C in Court and deposit the same with the Nazir. It would be open to the applicant to make application for return of the same. It may be, however, stated that this is an added reason for refusing bail as obviously this amount has been paid in order to tamper Mst. Farha, the daughter of the deceased, who is an eye‑witness.

H. A. K. Bail refused.

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