There has been an abrupt increase in the number of road accidents all over the country. So much so, that at best, they result in injuries on the body of the person of those involved consequently culminating in permanent impairment or disabilities, to mortalities at worst, since road accidents are a leading cause of untimely death. Tragically, a few months ago, a man died on the spot after being smashed by a vehicle driven by a 13-year-old girl. On the 9th of February, a vehicle rear-ended a motorcyclist on Margalla Road in Islamabad, which resulted in the motorcyclist losing his life. This drastic rise has emerged as a significant concern to the masses and is a consequence of many drivers being reckless and driving at high speeds, disregarding traffic signals, and ignoring basic traffic rules, resulting in accidents. This constant disregard is due to the fact that some members of the public perceive that criminals are often not punished adequately, or at all for that matter. This perception could stem from a variety of factors, such as ‘high-profile’ cases where a defendant is acquitted or receives a slap on the wrist sentence or the culprits absconding and never being caught by the investigating agencies.
To make matters worse, such incidents are scarcely reported to public functionaries to put into motion the mechanisms of the criminal justice system, primarily due to past prosecution of such offences scarcely resulting in convictions. The public perception, which seems to have lost all faith in our judicial system, is that even if prosecution is instituted, the accused person will be let off the hook scot-free while considerable amounts of pecuniary resources will be laid to waste, in vain, during a quest for justice which will bore no fruit. Said perception, if you will, is not without merit, as the provisions of law an aggrieved can resort to for redressal of their grievance arising out of a road accident are fundamentally flawed. Pakistan inherited many laws from the British legal system at the time of independence, and while some of these laws may not be entirely in line with Pakistani norms, way of life, and culture, many of them have been retained and are still in force today. Although several amendments have been made to our laws to reflect the evolving social, political, and legal landscape, the laws pertaining to accidents fall within the category of those inherited and left forsaken.
Conversely, when a crime report (FIR) is registered pertaining to the commission of an accident, thereby setting the wheels of the criminal justice system into motion, the cases get nowhere due to various reasons. Nevertheless, it is necessary to look at the governing provisions before assessing their flaws.
The first mention of ‘accident’ is in Section 80 of the Pakistan Penal Code 1860, which falls under Chapter IV of the PPC titled ‘General Exceptions’. General Exceptions are essentially ‘excusable acts’ and although the accused has caused harm, yet culpability is excused because the presumption of law is that the accused cannot be blamed for causing said harm. Be that as it may, perusal of the aforementioned provision provides that the scope of 'accidents' in the Penal Code is quite vast because any act which is negligently done or done with the knowledge that it will result in harm constitutes an ‘accident’. In addition to the aforementioned section, other attracting provisions of the PPC includes, inter alia, Sections 279; 337-G; and, 320.
Section 279 deals with the offence of rash driving and provides that any person who drives or rides any vehicle on a public way in a manner which is rash or negligent to the extent that it endangers human life or is likely to cause hurt or injury to any other person shall be punished. Endangering human life due to rash or negligent driving itself is an offence, while causing hurt is not a prerequisite. When due to rash or negligent driving, hurt is caused to another, the act is governed by Section 337-G. If the death of a person is caused by the rash or negligent driving of a vehicle, the same is punishable under Section 320.
It's interesting that despite rash and negligent driving simpliciter where no hurt is caused, all the up to inflicting death upon someone as a result of it are punishable by the legislature, however, all three offences in their current form are bailable in nature. Due to this, a court cannot refuse bail to a driver who has caused a fatal accident, resulting in the demise of another, due to his or her negligence.
Although the purpose of bail is to ensure the attendance of the accused during the trial and to protect the accused from any pre-trial detention, thereby ensuring that cardinal rights as enshrined in the Constitution of the Islamic Republic of Pakistan are not violated, in addition to the guarantee that when conviction is pronounced, the incarceration of a guilty person can repair the wrong caused by the mistaken relief of grant of bail (See Manzoor v. The State, PLD 1972 SC 81). However, the same cause the masses to lose faith in our justice system and the public feel outraged when an accused person is granted bail for a number of reasons. Generally, two of the leading causes of this are that despite the severity of the crime, bail is generally granted to the accused, and the public perception of a two-tier justice system where the rich are escorted out safely while the poor are left to hang dry.
Further, it has been observed by various legal experts that both parties to litigation, as well as public prosecutors make every effort possible up until the bail stage. However, as soon as bail is granted, the prosecution is almost as good as dead because victims lose faith after being dragged through the lethargic system and seeing their efforts in vain. As such, they stop pursuing their cases. It is conceded that the grant of bail to an under-trial accused is a complex issue, however, it should be designed in order to balance the rights of the accused with the rights of the victims, in addition to the interests of justice (See M. Ayub v. The State, 2014 P.Cr.L.J 178 Que), which in cases of road accidents is squarely lacking.
It’s harrowing to observe that if A causes the death of B by unlawfully digging a pit in the thoroughfare, which B falls into, A would not be granted bail because said transaction is non-bailable and bail is not granted as a matter of right. However, if A rams his vehicle through B and B dies as a result thereof, A will be granted bail as a matter of right due to the inherently flawed nature of the offence. An amendment to the Second Schedule of the Code of Criminal Procedure, 1898, which categorises offences mentioned in the Penal Code into bailable and non-bailable, would be welcomed in this regard.
In addition to the aforementioned recommendation, it is suggested that to stop road accidents from occurring, we need to make laws stricter. In the words of former Associate Justice of the Supreme Court of the United States of America Louis Brandeis, "If we desire respect for the law, we must first make the law respectable" and respect, as certain jurists like John Austin have argued, is given to the laws in terms of abiding by them due to the ‘threat of a sanction’. In other words, the laws which govern road accidents need to be amended and made stricter; burden to prove should be reversed, as is the situation in cases pertaining to negotiable instruments; and, driving licences of accused persons should be suspended until verdict of incarceration or acquittal is pronounced by a court of competent jurisdiction.
The raison d'être for the proposed amendments being that without fear of getting caught and subsequent punishment, people will not take the law seriously, nor do they in Pakistan as discussed above while deliberating on public perception. To change this perception, it is imperative that the aforementioned proposed amendments are brought into our current legislation pertaining to road accidents; said laws are made more stringent in light of the biggest deterrent per criminologist experts, namely, theory of retribution centred on ‘just deserts’ or ‘just sanctions’ in order to reflect a perfect balance between the conflicting interests; viz, sanctity of the interest of the society and an individual's right to liberty.
To make matters worse, such incidents are scarcely reported to public functionaries to put into motion the mechanisms of the criminal justice system, primarily due to past prosecution of such offences scarcely resulting in convictions. The public perception, which seems to have lost all faith in our judicial system, is that even if prosecution is instituted, the accused person will be let off the hook scot-free while considerable amounts of pecuniary resources will be laid to waste, in vain, during a quest for justice which will bore no fruit. Said perception, if you will, is not without merit, as the provisions of law an aggrieved can resort to for redressal of their grievance arising out of a road accident are fundamentally flawed. Pakistan inherited many laws from the British legal system at the time of independence, and while some of these laws may not be entirely in line with Pakistani norms, way of life, and culture, many of them have been retained and are still in force today. Although several amendments have been made to our laws to reflect the evolving social, political, and legal landscape, the laws pertaining to accidents fall within the category of those inherited and left forsaken.
Conversely, when a crime report (FIR) is registered pertaining to the commission of an accident, thereby setting the wheels of the criminal justice system into motion, the cases get nowhere due to various reasons. Nevertheless, it is necessary to look at the governing provisions before assessing their flaws.
The first mention of ‘accident’ is in Section 80 of the Pakistan Penal Code 1860, which falls under Chapter IV of the PPC titled ‘General Exceptions’. General Exceptions are essentially ‘excusable acts’ and although the accused has caused harm, yet culpability is excused because the presumption of law is that the accused cannot be blamed for causing said harm. Be that as it may, perusal of the aforementioned provision provides that the scope of 'accidents' in the Penal Code is quite vast because any act which is negligently done or done with the knowledge that it will result in harm constitutes an ‘accident’. In addition to the aforementioned section, other attracting provisions of the PPC includes, inter alia, Sections 279; 337-G; and, 320.
Section 279 deals with the offence of rash driving and provides that any person who drives or rides any vehicle on a public way in a manner which is rash or negligent to the extent that it endangers human life or is likely to cause hurt or injury to any other person shall be punished. Endangering human life due to rash or negligent driving itself is an offence, while causing hurt is not a prerequisite. When due to rash or negligent driving, hurt is caused to another, the act is governed by Section 337-G. If the death of a person is caused by the rash or negligent driving of a vehicle, the same is punishable under Section 320.
It's interesting that despite rash and negligent driving simpliciter where no hurt is caused, all the up to inflicting death upon someone as a result of it are punishable by the legislature, however, all three offences in their current form are bailable in nature. Due to this, a court cannot refuse bail to a driver who has caused a fatal accident, resulting in the demise of another, due to his or her negligence.
Although the purpose of bail is to ensure the attendance of the accused during the trial and to protect the accused from any pre-trial detention, thereby ensuring that cardinal rights as enshrined in the Constitution of the Islamic Republic of Pakistan are not violated, in addition to the guarantee that when conviction is pronounced, the incarceration of a guilty person can repair the wrong caused by the mistaken relief of grant of bail (See Manzoor v. The State, PLD 1972 SC 81). However, the same cause the masses to lose faith in our justice system and the public feel outraged when an accused person is granted bail for a number of reasons. Generally, two of the leading causes of this are that despite the severity of the crime, bail is generally granted to the accused, and the public perception of a two-tier justice system where the rich are escorted out safely while the poor are left to hang dry.
Further, it has been observed by various legal experts that both parties to litigation, as well as public prosecutors make every effort possible up until the bail stage. However, as soon as bail is granted, the prosecution is almost as good as dead because victims lose faith after being dragged through the lethargic system and seeing their efforts in vain. As such, they stop pursuing their cases. It is conceded that the grant of bail to an under-trial accused is a complex issue, however, it should be designed in order to balance the rights of the accused with the rights of the victims, in addition to the interests of justice (See M. Ayub v. The State, 2014 P.Cr.L.J 178 Que), which in cases of road accidents is squarely lacking.
It’s harrowing to observe that if A causes the death of B by unlawfully digging a pit in the thoroughfare, which B falls into, A would not be granted bail because said transaction is non-bailable and bail is not granted as a matter of right. However, if A rams his vehicle through B and B dies as a result thereof, A will be granted bail as a matter of right due to the inherently flawed nature of the offence. An amendment to the Second Schedule of the Code of Criminal Procedure, 1898, which categorises offences mentioned in the Penal Code into bailable and non-bailable, would be welcomed in this regard.
In addition to the aforementioned recommendation, it is suggested that to stop road accidents from occurring, we need to make laws stricter. In the words of former Associate Justice of the Supreme Court of the United States of America Louis Brandeis, "If we desire respect for the law, we must first make the law respectable" and respect, as certain jurists like John Austin have argued, is given to the laws in terms of abiding by them due to the ‘threat of a sanction’. In other words, the laws which govern road accidents need to be amended and made stricter; burden to prove should be reversed, as is the situation in cases pertaining to negotiable instruments; and, driving licences of accused persons should be suspended until verdict of incarceration or acquittal is pronounced by a court of competent jurisdiction.
The raison d'être for the proposed amendments being that without fear of getting caught and subsequent punishment, people will not take the law seriously, nor do they in Pakistan as discussed above while deliberating on public perception. To change this perception, it is imperative that the aforementioned proposed amendments are brought into our current legislation pertaining to road accidents; said laws are made more stringent in light of the biggest deterrent per criminologist experts, namely, theory of retribution centred on ‘just deserts’ or ‘just sanctions’ in order to reflect a perfect balance between the conflicting interests; viz, sanctity of the interest of the society and an individual's right to liberty.