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Criminal Miscellaneous No. 805-B of 1986, decided on 23rd September, 1986.

---S. 497--Penal Code (XLV of 1860), Ss. 279, 304-A & 304--Bail, grant of--Rash and negligent driving--Accused driving wagon rashly and dangerously--Passengers repeatedly requesting and warning him to slow down--Accused not caring for such requests--Wagon ultimately getting out of control of accused fell down in canal--Nine persons lost their lives as result of negligent act of accused--Rash and negligent driving amounting to culpable homicide, would certainly be punishable under S.304, P.P.C. and not under S.304-A, P. P. C.--Evidence on record would constitute reasonable ground to believe that accused had committed culpable homicide falling within prohibitory clause of S. 497, Cr.P.C.--Bail refused in circumstances.

Sardar M. Latif Khan Khosa for Petitioner.

Tasaddaq Hussain Jillani, A.A.-G. for the State.

This is an application for grant of bail to Asghar Shah alias Achhan Shah petitioner in a case under section 304/279, P.P.C. registered at P.S. Qureshi, vide F.I.R. No. 86, dated 17-8-1986.

2. The prosecution case is that the petitioner while driving wagon No. 4844; DGA caused the death of 9 passengers of his wagon by rash, negligent and dangerous driving.

3. Learned counsel for the petitioner has urged that the case is of an accident and no mens rea is attributable to the petitioner for causing the death of 9 persons and as such, the offence would at the worst fall under section 304-A, P.P.C. Reliance has been placed on cases Muhammad Yousaf Baloch v . The State 1986 P Cr. L J 1415, Syed Asif Ali v. The State 1986 P Cr. L J 467, Ahsan Ali v. The State 1985 PCr.LJ 293 and Raja S. Akhtar and another v. The State 1984 P. Cr.LJ 229. Consequently the learned Assistant Advocate-General has opposed this application.

4. I have considered the submissions made by the learned counsel for the parties with care. I do not feel persuaded to agree with the learned counsel for the petitioner. I find that the facts of the aforesaid cases relied on bar the learned counsel are quite distinguishable. It is well-settled that each case has to be decided on its own facts. In the instant case, the petitioner had allegedly driven the wagon not only rashly and negligently but also dangerously. Although requested and warned by the passengers to slow down the speed of the wagon yet he did not pay any heed to it. It has been stated in the F. I R.,

The eye-witnesses in their statements recorded under' section 161, Cr.P.C. have made almost similar statements. It is thus very much obvious that the petitioner had driven wagon with the knowledge that he was likely to cause death. The relevant provisions of law may be reproduced conveniently:----

"Section 299, P . P. C

Culpable Homicide.-- Whoever causes death by doing an act with the intention of causing the death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

"Section 304, P.P.C:

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."

"Section 304-A, P.P.C:

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine."

The words 'not amounting to culpable homicide' used under section 304-A, P.P.C. are of great significance. It is thus, very much obvious that rash or negligent driving/act which amounts to culpable homicide would certainly be punishable under section 304, P.P.C. and not 304-A, P.P.C. because section 304-A, P.P.C. can only be applicable when the rash or negligent act of driving does not amount to culpable homicide.

5. For what has been said above, it seems to me that the allegations' levelled against the petitioner in the F.I.R. and the evidence collected by the police constitute reasonable ground to believe that the petitioner has committed culpable homicide as defined in section 299, P.P.C. and punishable under section 304, P.P.C. which falls within the prohibibtory clause of section 497, Cr.P.C. and that but for his rash driving, prima facie, amounting to culpable homicide, the nine persons would not have lost their lives.

For what has been said above, it is not a fit case for grant of bail at this stage. The application is, therefore, dismissed.

S. A. Bail refused.

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