PLJ 2024 Cr.C. (Note) 80
[Lahore High Court, Lahore]
Present: Ch. Abdul Aziz, J.
MUHAMMAD JAVED--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 28561-B of 2022, decided on 25.5.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Pakistan Penal Code, (XLV of 1860), S. 322--Bail after arrest--Grant of--Prohibitory clause-- In given circumstances, it can inevitably be held that for purposes of bail, offence under Section 322, PPC can be treated as not falling within prohibitory clause of Section 497, Cr.P.C--It is essentially required to be mentioned here that for purposes of bail, offences are sorted in two B different categories, as is evident from Section 497(1), Cr.P.C--It alludes from Section 497(1), Cr.P.C. that positive language is couched for grant of bail in offences having imprisonment, less than ten years by use of expression’ may be released on bail’--The word “may” is generally used in a statutory provision in permissive or enabling sense--As regards, offences entailing punishment of ten years imprisonment and upward, a stringent criteria is laid down for grant of bail and such relief can only be extended if from tentative perusal of record reasonable grounds to connect an accused with commission of crime are found lacking--The law of bail, as it evolved over years, defines two classes of offences mentioned in Section 497(1), Cr.P.C. as non-prohibitory and prohibitory clause--In earlier kind of cases i.e. having imprisonment of less than ten years, bail is granted as a rule and only existence of some exceptional circumstances entail its dismissal--Now question of foremost importance arises that what in law is considered an exceptional circumstance, which may render an accused disentitled from concession of post arrest bail, even in an offence having imprisonment of less than ten years-- The afore-mentioned rule of granting bail in offences not attracting prohibitory clause of Section 497, Cr.P.C. has been vigorously followed by Hon’ble Supreme Court of Pakistan--Bail allowed. [Para 5] B & C
PLJ 2006 Cr.C. (Lahore) 159, 2006 PCr.LJ 1236, 2012 MLD 1702, 2018 YLR 1810, NLR 1995 Criminal 1, 2002 SCMR 1797, 2009 SCMR 1488, PLD 2017 SC 733.
Interpretation of Statutes--
----Maxwell--It is salutary principle of law that if a provision can be interpreted in two different manners, then one which favours an accused is to be adopted--In this regard, wisdom expressed in Maxwell on Interpretation of Statutes (Twelfth Edition) by P.St.J. Langan can be borrowed and is being mentioned hereunder:
“The principle applied in construing a penal Act is that if, in construing relevant provisions, ‘there appears any reasonable doubt or ambiguity’, it will be resolved in favour of person who would be liable to penalty”. [Para 4] A
PLJ 1998 Cr.C. (Lahore) 790.
Rai Ashfaq Ahmad Kharal, Advocate for Petitioner.
Mr. Zia-ur-Rehman Chaudhry, Advocate for Complainant.
Mr. Haroon-ur-Rasheed, Deputy District Public Prosecutor for State.
Date of hearing: 25.5.2022.
Order
Muhammad Javed (petitioner) seeks post-arrest bail in case FIR No. 416/2022 dated 27.03.2022 registered under Sections 322, 337-G, 279 & 427, PPC at Police Station Bhikhi, Sheikhupura.
2. Concisely stated the case of the prosecution as per contents of the FIR is to the effect that on 27.03.2022 at about 10:15 a.m. complainant Muhammad Ramzan along with others was coming towards city while riding two motorcycles; that Abdullah and others were riding CD/70 Motorcycle Bearing Registration No. LEM/7887 and were ahead of motorcycle which was being ridden by Muhammad Ramzan (complainant) and one Shahbaz; that when the complainant and others reached Ayavirkan Wali Saim, Truck Nishan Mazda bearing registration No. LES/7801 while crossing the motorcycle of the complainant collided with the motorcycle of Abdullah, due to which Abdullah, Saleem and Husnain got injured, whereas their motorcycle was crushed; that Abdullah succumbed to the injuries at the spot, whereas Husnain and Saleem were shifted to Civil Hospital through ambulance “1122”; that driver of the truck fled away from the spot, whose name was later disclosed as Muhamamd Javed (petitioner).
3. Arguments heard. Record perused.
4. From the tentative perusal of the record, it divulges that the case in hand pertains to a traffic accident in which one Abdullah lost his life, whereas two others received traumas over their persons. All the victims were riding motorcycle Honda CD-70 bearing registration No. LEM/7887 and collided with Truck Nishan Mazda bearing registration No. LES/7801. It is also noted that at present the petitioner is lodged in jail due to offence under Section 322, PPC as rest of other penal provisions are bailable in nature. So far as, Section 322, PPC is concerned, it is made punishable by the Legislature through Diyat only, the value of which is mentioned in Section 323, PPC as 30630-grams of silver. Needless to mention here that since Section 322, PPC is not made punishable with some imprisonment and in second Schedule of Code of Criminal Procedure, 1898 it is shown as non-bailable, hence the foregoing peral provision is to be treated as not attracting the prohibitory clause of Section 497, Cr.P.C. It is the salutary principle of law that if a provision can be interpreted in two different manners, then the one which favours an accused is to be adopted. In this regard, wisdom expressed in Maxwell on the Interpretation of Statutes (Twelfth Edition) by P.St.J.Langan can be borrowed and is being mentioned hereunder:
“The principle applied in construing a penal Act is that if, in construing the relevant provisions, ‘there appears any reasonable doubt or ambiguity’, it will be resolved in favour of the person who would be liable to the penalty”.
Since there is no compelling reason to deviate from the afore-mentioned well-embedded principle of law, hence I am swayed to interpret 322, PPC as not attracting the prohibition contained in Section 497 (1), Cr.P.C. The view so formed is in consonance with the case reported as Muhammad Nadeem v. State [PLJ 1998 Cr.C. (Lahore) 790] wherein while deciding the fate of a post-arrest bail emerging from FIR registered under Sections 320 & 322, PPC it was observed as under:
“If there are two interpretations possible, I am persuaded to accept that interpretation which is more lenient and favours the accused person.”
If any further reference in this regard is needed that can be made to the cases reported as Tariq Mahmood v. State [PLJ 2006 Cr.C. (Lahore) 159], Aamir v. The State (2006 P Cr.L.J 1236), Ramesh v. The State (2012 MLD 1702) and Zia-Ur-Rehman v. The State (2018 YLR 1810).
5. In the given circumstances, it can inevitably be held that for the purposes of bail, the offence under Section 322, PPC can be treated as not falling within the prohibitory clause of Section 497, Cr.P.C. It is essentially required to be mentioned here that for the purposes of bail, the offences are sorted in two different categories, as is evident from Section 497(1), Cr.P.C. It alludes from Section 497(1), Cr.P.C. that positive language is couched for the grant of bail in offences having imprisonment, less than ten years by use of expression ‘he may be released on bail’. The word “may” is generally used in a statutory provision in permissive or enabling sense. As regards, the offences entailing punishment of ten years imprisonment and upward, a stringent criteria is laid down for the grant of bail and such relief can only be extended if from the tentative perusal of record reasonable grounds to connect an accused with the commission of crime are found lacking. The law of bail, as it evolved over the years, defines two classes of offences mentioned in Section 497(1), Cr.P.C. as non-prohibitory and prohibitory clause. In the earlier kind of cases i.e. having imprisonment of less than ten years, the bail is granted as a rule and only the existence of some exceptional circumstances entail its dismissal. Now the question of foremost importance arises that what in law is considered an exceptional circumstance, which may render an accused disentitled from the concession of post arrest bail, even in an offence having imprisonment of less than ten years. The Hon’ble Apex Court while dilating upon the exceptional circumstances defined them in case reported as Tariq Bashir and five others v. The State (NLR 1995 Criminal 1) as under:
“The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal is an exception. So the bail will be declined only in extra-ordinary and
Exceptional cases, for example--
(a) Where there is likelihood of absconding of the accused;
(b) Where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is Released on bail; and
(d) where the accused is a previous convict.”
The afore-mentioned rule of granting bail in offences not attracting the prohibitory clause of Section 497, Cr.P.C. has been vigorously followed by the Hon’ble Supreme Court of Pakistan in the cases reported as Subhan Khan v The State (2002 SCMR 1797), Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488) and Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733).
In the light of what has been discussed above, this petition is allowed and petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs. 500,000/-(five lac) with one surety in the like amount to the satisfaction of the learned trial Court.
(A.A.K.) Bail allowed
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