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Criminal Revision No. 852 of 1962, decided on 10th March 1965.

Ss. 304‑A & 338‑Rash and negligent driving‑Assessing rashness or negligence in case of horse driven carriages‑Due consideration to be given to fact that unlike motor vehicles such carriages cannot be stopped dead as mere application of brakes‑Bay suddenly darting across road struck and knocked down by tonga driven at moderate speed Rash and negligent driving, in circumstances of case, cannot be attributed to tonga driver‑Conviction under S. 304‑A set aside.

Muhammad Yaqub v. The State P L D 1959 Kit. 30; Muhammad Siddiq v. The State P L D 1958 Kar. 945; Kanshi Ram v. Emperor AIR 1927 Lah. 165 ; Emperor v. Abdul Latif A I R 1944 Lah. 163 ; Pulin Behary Nandi v. Emperor 30 Cr. L J 402 and Emperor v. Akbar Ali A I R 1936 Oudh 400 ref.

Sh. Noor Ahmad for Appellant.

Rana Maqbool Ahmad for the State.

Date of hearing: 10th March 1965.

Muhammad Hussain, son of Muhammad Boota was convicted by khan Saadat Khan, Section 30, Magistrate, Gujranwala on the 8th of May 1962, under section 304, Part A, P. P. C. and sentenced to undergo rigorous imprisonment for one year, in addition to pay a fine of Rs. 1,000; in. default of payment to undergo further rigorous imprisonment for six months. It was also ordered that out of the fine, if realized, Rs. 800 were to be, paid to the father of the deceased as compensation for expenses incurred and mental agony suffered. In appeal, learned Sessions Judge, Gujraon aloof confirmed the conviction but reduced the sentence to Keith rigorous imprisonment for six months and a fine of Rs. 800 further modification that if the fine was realized Rs: 600 was to be paid to the father of the deceased.

2. In revision the learned counsel for the petitioner has urged that rash and negligent act as referred to in section 304, Part A, P. P. C. has on the evidence in this case not been proved and consequently the conviction of the petitioner is not warranted in law.

3. Briefly the facts are that on the 30th of January 1962, the petitioner Muhammad Hussain was driving a tonga carrying passengers and on the G. T. Road at Gujranwala struck against Sartaj alias Neeno, a boy about 3 years of age knocked him down and the boy died as a result of the injuries he had received.

4. The defence was that in fact a truck had run over the deceased and that the petitioner had been falsely involved as he was driving the tonga at the time. Two defence witnesses were examined, namely, Asghar Ali Shah (D. W. 1) and Abdur Rashid (D. W: 2). These two witnesses supported the defence contention that the unfortunate boy Sartaj struck against the truck on the opposite side of the road and this had resulted in his death.

5. It is clear that in the trial Court and in the appellate Court reliance was placed on the testimony of Saif-ul‑Malook (P: W. 3), a' boy aged about twelve and Muhammad Ashraf. (P. W. 7), a boy aged about ten which was that these tyro boys together with the deceased were playing on the roadside had the contention was that in course of the play Sartaj suddenly started to run and attempted to cross the road from one side to, the other and that the tonga driven by the petitioner struck Sartaj in consequence of which he was knocked down. The points held against the petitioner Were that even if that was so he had failed to sound a warning to the boy by the sounding of bell of the tonga even through the tonga was being driven at a normal speed and that, therefore, he was grossly negligent.

6. Learned counsel for the petitioner has relied on Muhammad Yaqub v. The State (P L D 1959 Kar. 30), where Abdul Hamid, J., was of the view that a conviction under section 304, Part A requires some rash or negligent act to be conclusively established by direct evidence before the accused can be held to be guilty of an offence under section 304‑A, P. P. C. In that case it was held that it had not been established through the sole witness, the mother of the deceased girl, that the petitioner bad been driving his car at a high speed and that; therefore, no attempt of rashness or negligence in the driver's conduct had been established. The other ruling relied upon is Muhammad Siddiq v. The State (P L D 1958 Kar. 445). That case also referred to the driving of a motor vehicle and that the accident had taken place when a boy in crossing the road came in contact with the vehicle and received injuries. It was found that the brakes of the vehicle were defective in certain respects and that fact alone could not lead to the conviction of the driver under section 338, P. P. C. Waheed‑ud‑Din, J., referred in the course of this judgment to various rulings, namely, A I R 1927 Lah. 165, A I R 1944 Lah. 163, 30 Cr L J 402 and A I R 1936 Oudh 400. In the last‑named ruling the rash and negligent act referred to in section 304, Part A and section 338, P. P. C. means the act which is the immediate cause of death and not any act or omission which can at best be said to be a remote cause of death. His Lordship further opined that the decision of each case depends on its own facts and in some cases drivers driving at a moderate speed may be found guilty of rash and negligent acts resulting in grevious hurt and death of the 'pedestrians. In the present case I have examined the evidence with the assistance of the learned counsel for the petitioner Sh. Nur Ahmad and Rana Maqbool Ahmad for the State. It is conceded that the only relevant testimony in this case is that of Saif‑ul‑Malook (P. W. 3) and Muhammad Ashraf (P. W. 7) arid that on the important aspect. of the petitioner driving his tonga at a rash and negligent speed the divergence or discrepancies in the testimony of these two witnesses has been noticed by the learned Sessions Judge but according to him the difference was not material because when he saw the three children playing by the roadside he should have slowed down the speed.

7. Saif‑ul‑Malook had stated quite definitely that the tonga of the petitioner was being driven at a moderate speed and that whilst he and his two companions which included the deceased were playing the deceased Sartaj suddenly started to run and cross the road. This fact is corroborated by the testimony of the two defence witnesses Asghar Ali Shah (P. W. 1) and Abdur Rashid (D. W. 2). It is these two witnesses who according to the petitioner accompanied him with the injured child to the house of his grandmother Mst. Tajwar‑‑Sultana and thereafter to the hospital. Rahat Ali (P. W. 5) the father of the deceased who is employed in the hospital has admitted that passengers of the tonga did come accompanying the petitioner to the hospital. Incidentally, therefore, it appears that these two witnesses were present as passengers in the tonga of the petitioner and on the relevant aspect of the case, their contention is that the deceased, all of a sudden, started to cross the road and that there was a truck coming on against which the deceased hit himself. Whether the latter part of the‑statement is true or not, the former part of their statement supports the statement of Saif‑ul‑Malook that whilst the deceased with his companions he had without warning made an attempt to cross the road on which there is heavy traffic indicates that the petitioner was driving his tonga on the right side of the road. Due consideration has to be given to the fact that a motor vehicle being a mechanical device and with the aid of all modern appliances is possible of being stopped‑dead by the mere application of a brake whether it has a foot, brake or hand brake. In the present case the petitioner was driving a tonga and in the circumstances it is to be visualised that the petitioner on a sudden appearance of the boy crossing the road has not only t draw in the reins of the horse but that the horse who is an animal' and not a mechanical device has to respond to string of the reins and that this manner can only be applied after some distance. In the circumstances it appears to me that this is not a case in which either rash or negligent driving can be attributed to the petitioner nor indeed on the evidence earlier referred has it been established. The present case can be distinguished from other rulings referred to entailing accidents committed by drivers of motor cars or trucks but the driver of a tonga or a horse driven carriage is an entirely different matter unless it can be established that the horse was being recklessly driven and that the carriage following it was going at a very high speed dangerous to traffic at that time.

8. For these reasons it is obvious that the Courts below have fallen into an error in assessing what is the important point for consideration in this case and that the revision application must, therefore, be allowed. In consequence the conviction of the appellant is set aside. The fine, if paid, be refunded. The petitioner is on bail; his bail bond is cancelled.

K. B. A. Petition accepted.

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