NADEEM KHAN S/O WARIS KHAN (Applicant) VS THE STATE (Respondent)

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IN THE HONORAB L E HIGH COURT OF SINDH AT I(ARACHI 3

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t Crir.ninal Bail Application /2C24 t & nl I N.rcleem I(han S/ o Waris Khan Muslim. Adult, Resident of Karachi,

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I(alachi Applicant/ r\ccuseel

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i i The State... Respondent \

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I FIR No.1445l2024 I U /5320, r/u, 322PPC t'].S Sachal t IJAIL APPLICATION U/S a97 Cr.P.C. i TVW SE ON 439 CRiMINAL P RCCEDURE C ODE t

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THE HIGH COURTOF SINDHATKARACHI

I CrI. Bail Application No. 2901o12024

Applicant Nadeem Khan through M/s. Riaz Ahmed Bhatti & Allah Ditta, advocates.

Respondent The State Mr. QamaruddinNohri, Deputy Prosecutor General

Complainant Zahid Ali through Mr. Abdul Fateh lalbani, advocate.

Date of hearing 17d. March, 2025

Date of Orclen 17d. March,2025

ORDER

)an AJi Junejo, ].- The present Criminal Bail Application has been filed on behalf of the Appticalt/Accused, who is seeking c ou,q pre-arrest bail in connection with a case stemming from FIR o.7445 of 2024, regbtered at P.S. Sachal, Karachi, under + ta

ctions 320 read widr 322, P.P.C. The Applicant/Accused t,J io tially approached the learned Sessions Court by filing Bail lva (.^ Application No.43L0 of 2024, which was subsequently dismissed by the Court of the leamed Vlth Additiona.l Sessions -, /i.

Judge, Malir, Karachi, vide Order dated2L-09-2024. The second bail application No.5531/2024 was also dismissed vide Order dated:25-11.-2024.

2 The facts relevant to the present criminal bail application are as follorvs:

'The FIR lodged by Comp lainant Zahid AIi at PS Sachal v, otr 02,09.2024 states that his cottsin, Wajahat Ali, a Bylcea ridel met uith a fatal accident on 02-09-2024 at

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aryoxithately 3:45 PM near Waqar Matket $adras Chouk, Scheme No. 33, Karachi. Waiahat, iding.his mototcycle (t'i,o, KOB-6033), was allegedly stxuck by a Coaster , oehicle (No. fE-7939) ilrioen negligently by Nadeemy Khat Wajahat sustain.ed seoerc iniuies anil was tciken to Abbasi Shaheed Hospital rahete he succumb,ed to tris iniuies and passeil away. Zahid Ali, upon ledrning of the incident, rusheil to the hospital and confirmed his cousin's death, leading to the lodging of the FlR'against Nadeem l(hdn under the rela:ant legal sections fot negligent driaing tesulting in Wajalut's death". .,

3.The leamed tounsel for the Applicant argued that the applicant/accused is innocent and has been falsely implicated in the case. File contended that the offence falls under Section 322WC (Qatl-bis-sabab), which is punishable solely by "Diyat" (compensation) and does not fall within the prohibitory clause c OU r? r' of Section 497(i) Cr.P.C, making bail a rule as established by the l$-,rpt"rr," Court in its rulings (2022 SCMR 515). It was turther lr,, +\ .argued that the deceased was driving with an expired learner's ' license and was not r.r'earing a helmet, raising serious questions tv ) (.- about his , competence. and contributory negligence' Additionally, it was contended that Passenger vehicles, such as the one involved, fall under the ambit of an LTV licmse as defined in the Motor Vehicle Ordinance. The counsel also highlighted that the appiicant has been in custody since his arrest, the final challan has been submitted, and no further investigation is required. He asserted that the prosecution's I case lacks oredibility and probability, emphasizing that the accused is presumed innocent until proven guilty. h1 conclusion, the leamed counsel prayed for the grant of bail to the applicant, relying on precedents such as The State os. Qiam

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AIi SW G992 SCMR 2192) xrdSalman Khan as. The State (order datedlS-01,-2022\.

4, Thr lrnfned couarrl for tlrc Compldnent hrr argurC thrt Applcant/a(cused was driving negligently, causing the death of the comPlainant's cousin, Wajahat Ali. It is further contended that th9 offence, though urtder Section 322 PPC, \ involves seripus consequences, and the applicant'g release on bail could jeopardize the trial process. The complailrant's counsel argues that the applipanfs negligence directly led to the fatal acciflent, and the court should consider the gravity of the offence apd the impact on the victin{s family. The expired license of thg deceased does not absolve the applicant of his l

responsibilit5l for negligent driving. It is further argued that the -^.pplicant was driving the heavy vehicle without HTV licence issued by the competent authority. Lasfly, the leamed counsel for the Complainant prayed for dismissal of bail application.

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5.The lepmed Deputy Prosecutor General (DPG) has opposed the bail application by arguing that the applicant's laJ

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+ negligence while driving the Coaster vehicle caused the death Wajahat Ali, maklng the offence serious and non-bailable tsls I under the crrcurlstances. It is further contended that the prosecution has sulficient evidence to establish the applicant's cu-lpability, and releasing him on bail could hinder the judicial process. Thb DPG emphasizes that the offence, though punishable By "Diyat" involves a loss of life due to.reckleps driving without HTV license, warranting strict judicial scrutiny. The applicanfs custody is necessary to ensure his presence during trial and to uphold the integrity of the investigation. Lastly, the leamed DPG has prayed for dismissal of bail application.

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6.After darefully considering the arguments presented by the learned lounsel for the Applicant, the learned counsel for the Complainant, and the leamed Deputy Prosecutor General (DPG) for the State, I have conducted a preliminary assessment of the material available on reco{d to the extent permissible under the law. The contention of the leamed counsel for the Applican! which asserts that " tht deceased was riding the motorcycle with an erpired learner's license anil urithout wearing a helmet," holds no legal weighl trVhile riding without a helmet cor.stitutes 4n offense under the Motor Vehicies Ordinance, 1965, attracfing fines, and an expired leamer's license renders the rider nomompliant with the law, these infractions do not justify another driver intentionally or negligently cotliding with the deceased. Furthermore, the Motor Vehicles Ordinance, 1965, provides specific definitions for various types of transpoft vehicles. Under Section 2(18) of the Ordinance, a "light transport vehicle" is defined as any publi,c seruice vehicle othcr fhan a mbtor cab or any goods aehicle other than a heary hansport oehicle or a delioery oan. In contrast, Section 2(13) defines a o "heavy transport vehiclel' as a transport aehicle with a registered. . + llJ + axle weight exceediig 1,0,600 pounds aaoirdupois or a registered Iailen weight, exceeding L4,500 pounds aaoirdupois. Additionally, o Section 2(31) defines a "public serrrice vehjcle" as any motor ] t'/ l S oehicle used tor adapted fo, thE carriage of passengers for hire or rettard, including a motor cab, antrnct cariage, and stage carriage.

From these defuritions, it is evident that light transport vehicles, heavy transport vehicles, and public service vehicles are distinct categories under. the Motor Vehicles Ordinancg 1965, ,with' separate licensing requirements. The core issue is not whether the accused was driving a "light hansport vehicle", "heavy transport vehicle", or " public service vehicle"; rather, the primary question is whether the accused's acts fall within the ambit of Sections 320 or 322 of the Pakistan Penal Code

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(P P.C.). The crucial determtlation is whether the accused committed "qatl-i-khata" (homicide by mistake) due to iash or negligent driving, which is punishable under Section 320-, P.P.C.. Additionally, for the applicabitity of Section 922,P.P.C. conceming "Qatl-bis-Sabab", it must be established that the acbuseci, *ithout any intention to cause death or harm to any persory comrnitted an udawful act that ultimately resulted in j . the death of another individual. In such a scenario, the act would !e classified as "qatl-bis-sabab" under the law.

7.Accor,iing to Schedule II (Tabular Statement of Offences) appended to ;the Code of Criminal Procedure, 1898, an offense under Section 320 of the Pakistan Penal Code (P.P.C.) is categorized ab bailable. A thorough anaiysis of Section 322 of \ the Pakistan Penal Code (P.P.C.) reveals tl"rat it does not prescribe any specific term of imprisonment as punishment, apart from the payment of Diyat (compensation). It remains to be determined whether the obligation to pay Diyat f.alls within the prohibitory clause of Section 497 of t,t.le Code of Criminal Procedure (Cr.P.C.). In similar' circumstances, this lrJ + Court, in the case of .Abdul Shakoor and 3 otherc zs. The State (20L2 P.Cr.L.t . \LO2), granted bail on this basis. Furthermore, ) v 3!l this Court held that: " An examination of the prooisions of section 322, P.P.C. would show that no purgishment of any period has been proaided except the payment of Diyat. It is yet to be iletermined as to whether i.'tt ounishmen t :f naument ol Diuat amounl ioould bin the cn o licants roi n the ohibito clause o section 497, Cr.P.C. fpart [rOm the abooe two other prooisions of law for which the apy'licants haoe been tharged are bailable and no definite I finding can be rccorded at this stage as it rnill amount to cleepet appreciation of the record uthich may' hamt the pending proceedings".

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8.Given these circumstalces, I am of the considered view that, based on the prosecution's material in its presmt form, the case falls witltin the scope of further inquiry as envisaged under Section 497(2) of the Code of Criminal Procedure (Cr.P.C). In light of the foregoing discussioru I am convinced ' that the Applicant has successfully established a irrima facie case for the grant of bail'

9.Considering the.aforementioned reasons, the present bail application submitted on behall of the applicant/accused is hereby allowed. Consequently, the Applicant is admitted to bail subject to fur4rishing solvent suretf i:r the sum of Rs'200,000/- (Rupees Two Hundred Thousan<I Only) to satisfaction of the learned Trial Court and P.R. bond in the like amount' It is further emphasized that the observations made in this order are shall solely for the purpose of deciding this bail application and not inlluence the merits of the oase during the frial proceedings' r: (r;

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