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Criminal Revision Application No. 104 of 1966, decided on 14th December 1967.

S. 304‑A‑Rash and negligent act‑Prosecution must conclusively establish by direct evidence that accused was rash and negligent‑No evidence to prove that accused was guilty of rash or negligent act while driving his rickshaw Conviction under S. 304‑A set aside.

Ghulam Muhammad v. The Crown P I. D 1953 Lah. 260 and Muhammad Yakoob v. The State P L D 1959 Kar, 30 ref.

Muhammad Hayat Junejo for Applicant.

Usman Ghani Rashid for A. A.‑G. for the State.

Date of hearing: 14th December 1967.

The applicant was convicted by Malik Bashir Ahmad P. C. S. A. C. M., Karachi, on 10‑3‑1966 for an offence under section 304‑A, P. P. C., and was sentenced to four years' R. I. and also a fine of Rs. 2,000 or in default to one year's R. I. Against his conviction he fled an appeal before the learned Sessions Judge, Karachi who, however, dismissed it vide his order dated 31‑5‑1966. Through this revision application he has assailed his conviction and sentence. A notice for enhancement of sentence was also issued to him vide an order dated 29‑6‑1966, of my learned brother Noorul Arfin, J.

2. The brief facts of the prosecution case are that the applicant knocked down an unidentified person at 8‑30 p.m. on 12‑2‑1964 in Princess Street, near Bohrapir, while driving his rickshaw rashly and negligently. The person was removed to the Civil Hospital where he died. The medical evidence stated that the deceased was about 60 years old and was unhealthy looking.

3. Ashfaq Beg, A. S. I. P. W. 1, is alleged to have received a telephonic message from Dr. Zubari (not examined) who informed him that an unidentified person, allegedly knocked down by a rickshaw, was brought to the Civil Hospital in an injured condition. The said A. S. I. recorded the said telephonic conversation in writing as Exh. 2‑A. Another message was received by the said A. S. I. at 9‑25 p.m. from Dr. Zubari that the victim had died. The said message is Exh. 2‑B on record. According to Muhammad Sadiq A. S. I. P. W. 4, when he went to the Civil Hospital, he found the applicant, along with Inayat and Chand P. Ws., present. He then went to the scene of occurrence where on arrival he prepared Mashirnama Exh. 3‑A.

From there he proceeded to Idgah Police Station and lodged F. I. R. Exh. 5‑A at 10‑40 p.m. He also stated that he arrested the accused at the Police Station. The applicant denied the charge and in defence produced two witnesses, namely, Faiz Muhammad D. W. 1 and Abdul Rehman D. W. 2.

4. The prosecution relied on the evidence of Inayat P. W. 2, Muhammad Sadiq P. W. 4 (S. I. P.) and Chand P. W. 8. 1nayat P W. 2 stated that he had hired the rickshaw of the accused from Shershah at 8‑30 p.m., on the day of occurrence, for Idgah Maidan. He further stated that the rickshaw was driven by the applicant at a very high speed. According to him, when the rickshaw reached Princess Street, it knocked down an old man who was crossing the road. He further stated that prior to the accident he had been warning the applicant to proceed at a moderate speed, but he did not care. He further stated that after the accident the old man was removed by some person to the Hospital while he and the accused remained in the rickshaw.

5. Chand P. W. 8 stated that he had not seen the accident. He further stated that he bad not seen the accused at the place of occurrence because a crowd had collected around him. Muhammad Sadiq S. 1., P. P. W. 4 stated that he had seen the applicant alongwith Inayat and Chand P. Ws., at the Civil Hospital but Inayat P. W. 2 does not support him in that regard. In fact he stated that after the accident, he, alongwith the applicant, stayed in the rickshaw at the scene of occurrence.

6. The applicant had produced Faiz Muhammad D. W. 1 and Abdul Rehman D. W. 2 in his defence. Faiz Muhammad D. W. 1 had stated that the accused had been arrested from his hotel. His‑evidence obviously runs counter to the evidence of Muhammad Sadiq S. I. P. P. W. 4 who stated that he had arrested the accused from Idgah Police Station. Abdul Rehman D. W. 2 stated that he was the owner of the rickshaw in question. He further stated that the said rickshaw was under repairs on the day of accident and therefore, it was not true that it had been driven by the applicant and was involved in the accident. In support he produced a register Exh. D‑2 which, however, was disbelieved by the learned trial Court as well as the First Appellate Court.

7. The learned counsel for the applicant argued that assuming that the applicant had knocked down the deceased, while driving the rickshaw rashly and negligently, yet there was no evidence on record which could sustain his conviction. There appears to be considerable force in this contention. Inayat P. W. 2, who is the only eye‑witness of occurrence, stated that the applicant had been driving his rickshaw at a very high speed and in spite of the warnings administered to him, he continued driving his vehicle rashly and negligently. This, I am afraid, is no legal evidence on the basis of which the conviction of the applicant can be sustained. For this conclusion, I find support from a judgment of this Court reported as Ghulam Muhammad v. The Crown (P L D 1953 Lah. 260) where at page 261 Shabir, J. (as he then was) observed:

"Though P. W. 4 and P. W. 5 stated that the lorry was running at speed at which lorries usually run on a clear road, P. W. 1 did not, mention at what speed the lorry was travelling when the incident occurred. This witness, however, expressed the view that it was because of the negligence and rashness of the petitioner that Gaman got run over by the lorry. Whether or not the petitioner was rash and negligent is a question of fact about which the Court had to form an opinion, on con sidering the entire material on the record. Opinions of witnesses are relevant only if they are covered by any of sections 45 to 51 of the Evidence Act. The point to be considered was not one of foreign law or of science or art or as to the identity of any handwriting or finger‑impressions and, therefore, the opinion of P. W. 1 that the petitioner was rash and negligent did not fall within any of the above‑mentioned sections and was not relevant."

Reference may also be made to a judgment of this Court reported at Muhammad Yakoob v. The State (P L D 1959 Kar. 30) where at page 31 his Lordship Abdul Hamid, J. (as he then was) observed‑

"Conviction under section 304‑A requires that some rash or negligent act on the part of the accused must be conclusively established by direct evidence. If the band‑brake is defective that has no effect on speed. There was defect in the foot‑brake, but that defect only pulled the car to the left when the brake was to be put to work. That defect in the brake of the car alone would not by itself constitute the driving of the car a rash or negligent act. It must be established by evidence that at the time of the accident the driver was driving the car at an uncontrollable speed and was guilty of a rash or negligent act. The only evidence on that point is that of Mst. Fatima Begum, the mother of the girl, who said that the driver was driving the car at a high speed and did not stop in spite of her cries."

It would be seen that the law requires that the prosecution must conclusively establish by direct evidence that the accused was rash and negligent. In this case there is no evidence to prove that the applicant was guilty of rash or negligent act while driving his rickshaw, much less evidence so as successfully to establish the guilt of the accused.

8. For all these reasons this revision application is allowed, the applicant's conviction and sentence is set aside and notice for enhancement of sentence is discharged.

Petition allowed.

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