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Petition No. 905 of 1952, decided on 12th March, 1953 under section 439, Criminal Procedure Code, for revision of the order of Fazl‑i‑Elahi, Additional Sessions Judge, Jhang dated the 22nd August 1952.
S. 304‑A‑Rashness and negli gence‑Question of fact, not of opinion‑That vehicle was going on a fast speed will not by itself prove that driver was rash or negligent.
Whether or not the petitioner was rash and negligent is a question of fact about which the Court has to form an opinion, on considering 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 mere fact that the lorry was going at a fast speed would not prove rashness and negligence.
Where the deceased suddenly came in front of the lorry when it came near and was killed by being run over:
Held, that the accused who was driving the vehicle was not guilty under section 304‑A, P. P. C.
Azim Ullah Khan for Petitioner.
Nemo for Respondent.
Ghulam Muhammad, son of Hasan Muhammad Gujjar, who while driving a motor lorry belonging to his employer, the Crown Bus Service Lahore, ran over a young man near Chiniot, was sentenced to one year's rigorous imprisonment and a fine of Rs. 500, in default of payment of which he was to undergo further rigorous imprisonment for six months, by Mr. Aftab Ahmad, Magistrate of the First Class, Jhang. Ghulam Muhammad appealed against the order of the Magistrate and Mr. Fazal Illahi, Additional Sessions Judge, Jhang, while maintaining his conviction, altered the sentence to a fine of Rs. 1,000 in default of payment of which he was ordered to suffer rigorous imprisonment for nine months. Ghulam Muhammad dissatisfied with the order of the learned Additional Sessions Judge has come to this Court in revision.
The Courts below have found that Ghulam Muhammad petitioner was rash and negligent when driving the lorry. Of the nine witnesses produced by the prosecution, only four gave evidence relevant for the decision of the question that arises in the case. P. W. 1 Abdul Haq, A. S. I., P. W. 4 Muhammad Abdullah, a zamindar of village Sukheke in the district of Gujranwala, and P. W. 5 Nawazish Ali, who also is a zamindar of village Sukheke, were passengers in the lorry while Muhammad (P. W. 3), who is a cousin of Gaman who lost his life in the incident under consideration, was with the deceased at the time of the occurrence. Muhammad (P. W. 3), being the cousin of the deceased, was considered to be interested in the prosecution and his statement was not reified upon by the Courts below. The other three witnesses deposed that at the time when the incident occurred the road was clear of all other vehicular traffic and that the deceased and Muhammad (P. W. 3), who were sitting on one side of the road, suddenly tried to cross the road when the lorry was not very far and in that attempt Gaman, the victim, was runt over by the lorry and died at the spot. 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 tire 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 has to form an opinion, on considering the entire material on the record. Opinions of witnesses are relevant only if they are covered any of sections 4s 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 identify 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.
Though the Courts below have not said so in so many words yet it appears that they held the petitioner guilty because they thought that the petitioner was, at the time of the incident, driving his lorry at a fast speed. The mere fact that the lorry was going at a fast speed would not prove rashness and lo negligence, because whether there was rashness and negligence or not depends on all the attendant circumstances and speed alone is not the criterion. A man driving a motor vehicle at the. speed of about 20 miles an hour can a road on which children of small ages are running about will be rash and negligent while the came person driving his vehicle at the speed of, say, 70 miles an hour on a clear road will not be so. When a person does an act very hastily and without due caution, he acts rashly. If a person omits to do something, which a reasonable man guided by the considerations which ordinarily regulate the conduct of human affairs would do or does what a prudent and reasonable man would not do, he is negligent. .beeping those criterions in view I have to see whether or not the petitioner was rash and negligent so as to be punishable for the results which he never intended. The evidence of P. W. 1 Abdul Haq. A. S. I., P. W. 4 Muhammad Abdullah and P. W. 5 Nawazish Ali shows that Gaman suddenly came in front off, the lorry when it came near. In these circumstances, III fail to see what the petitioner could have done to avoid Gaman being run over. As mentioned by the trial Magistrate contri butory negligence of the victim would not take the case out of the purview of section 304‑A of the P. P. C. if the accused was rash and negligent, but that principle does not apply in the present case. The petitioner cannot be held to be rash and negligent simply because he did not foresee that one of the Persons on the road‑side would try to cross the path of the running motor vehicle which had almost reached him. If the driver of a vehicle assumes that persons standing on the road side would act normally and keep themselves cut of the way of the vehicle, he will be perfectly justified in his assumption, and if such persons attempt to cross the road when no sane man would make such an attempt, the fault does not lie with the driver of the vehicle who cannot be held to have been rash and negligent because loss of human limb or life has resulted. Because of the manner in which he acted, the victim would have been run over even if the lorry were running at a slow speed and, therefore, the mere fact that the lorry may have been running at a fast speed at the time of the unfortunate incident would not prove that the petitioner was rash and negligent.
Having given my anxious consideration to the entire evidence, I have arrived at the conclusion that the prosecution has failed to establish that the death of Gaman resulted from a rash and negligent act of the petitioner. I, therefore, accepting the petition acquit the petitioner and order that the bail bond furnished by him, in obedience to the order of this Court granting him bail, shall stand discharged, and the fine, if paid, shall be refunded.
A. H. Petition accepted.
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