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Criminal Appeal No. 788 of 1972, heard on 15th January 1975.

----Ss. 304(II) & 304-A---‑Rash and negligent act‑‑--Accused caught red handed while committing theft of wooden beans and loading on truck‑Prosecution witnesses forcing accused to drive to police Station‑Truck driven to Police Station at slow speed but in meanwhile accused pushing down deceased from truck and making good their escape by driving fast‑‑Deceased falling down and getting crushed‑---Truck being driven at slow speed accused; held, could not have knowledge of deceased being crushed under wheels‑--‑Accused, held, intended merely to escape and offence falls under S. 304‑A in circumstances‑Conviction altered from S. 304(II) to S. 304-A.

Muhammad Latif Khan Khosa for Appellant.

Ch. Muhammad Yamin for the State.

Date of hearing : 15th January 1975.

Ghaus Bakhsh, aged 25 years, a truck driver, was tried alongwith Altaf Hussain, the cleaner of the same truck, by Malik Muhammad Amir, Sessions Judge, Dera Ghazi Khan, for offences under section 382 and 302i34, P. P. C. for having stolen soma beams of wood and for having caused the death of Pir Bakhsh (deceased). For the last mentioned offence the learned trial Judge by his judgment dated 28‑9‑1972, convicted both the accus ed under section 304(11), P. P. C. read with section 34, P. P. C. and sentenced oath of them to 7 years' R. I. and a fine of Rs. 5ti0 each. (In default of payment of the fine they were ordered to undergo a further R. I. for one year each). They were also convicted under section 379/34, P. P. C. for stealing the wooden beams and were sentenced to one year's R. I. each. The line, if realised, was ordered to be paid to the legal heirs of the deceased. The sentences were ordered to run concurrently.

Ghaus Bakhsh has filed this appeal against his conviction and sentences. Altaf Hussain cleaner leas bled a separate appeal through jail. Both are being heard together by me, but each shall be disposed of by a separate judgment.

2. The prosecution story briefly is that the deceased and his cousin Ghulam Siddiq complainant (P. W. 9) used to run a tea‑stall on the road. Side within the limits of village Gajani, district D. G. Khan. On the night of occurrence they were sitting in their tea‑stall alongwith one Allah Wasaya. At about mid‑night they heard the sound of a truck which Stopped near their tea‑stall. Pir Bakhsh deceased and Ghulam Siddiq P. W. 9 went out. They were followed by Allah Wasaya. All of them saw Ghaus Bakhsh appellant and Altaf Hussain co‑accused, (who were known to Ghulam Siddiq P. W. previously), taking away some beams of wood belonging to the complainant and the deceased, which they had placed near their tea‑stall. The accused had already placed four beams in their truck but the deceased and Ghulam Siddiq complainant caught hold of them and ordered them to take them to the police station. They sat in the truck of the accused and forced them to drive it for the police station. Ghaus Bakhsh appellant and his cleaner Altaf Hussain were sitting on the front seat. Pir Bakhsh deceased also sat on the left side on the front seat, near the window. Ghulam Siddiq P. W. 9 stood on the foot‑pad of the truck, near the window, while Allah Wasaya (not produced) sat in the main body of the truck, behind the driver's seat. It is alleged that when the truck reached near the outer gate of the police station, the driver stopped it and started driving in the reverse. Pir Bakhsh deceased thereupon raised an alarm requiring the driver to stop the truck. At that time the truck was being driven at a very low speed. Ghaus Bakhsh appellant suddenly asked Altaf Hussain cleaner to push the deceased out so as to escape from being arrested for the theft. Altaf Hussain co‑accused thereupon gave a push to the deceased who fell down and got crushed under the behind wheel of the truck. Thereupon Ghulam Siddiq complainant (P.W. 9) also jumped down from the truck. In the meanwhile the two accused drove away their truck. This incident was witnessed by Din Muhammad P. W. 10 and Haji Muhammad alias If Haji P. W. 11, in the light of an electric torch. Ghulam Siddiq P. W. 9 lodged the F. I. R. Exh. P. A. with the police, which was recorded by Khuda Bakhsh H. C. (P. W. 12). After recording the same Khuda Bakhsh P. W. prepared the inquest report and the injury statement of Pir Bakhsh deceased as well as the injury statement of Ghulam Siddiq complainant. Shortly thereafter the investigation was taken up by Sher Din S. I., P. W. 13, who had also reached the spot in the meanwhile. It was about 2 a.m. The S. I. left the dead body in the custody of afoot constable and went in pursuit of the truck, the number of which had been noted down by the witnesses. The truck was found at Adda Lora Lai, in D. G. Khan. The police found Ghaus Bakhsh appellant sleeping on the front seat. Altaf Hussain co‑accused was sleeping outside the truck. They were arrested by the S. I. Beams, Exhs. P. 5 to P. 8, were found in the truck. These were taken into custody vile memo. Exh. P. C. The truck was taken Into possession vide memo. Exh. P. D. The dead body was sent by the Investigating Officer for post‑mortem examination.

3. At the trial the prosecution produced 13 witnesses in support of its case. The prosecution case rests mainly on the ocular evidence of Ghulam Siddiq P. W. 9, Din Muhammad P. W. 10 and Haji Muhammad P. W. 11 and the evidence of recovery of the wooden beams P. 5 to P. 8. It may be mentioned that another witness, namely,. Allah Wasaya was given up by the prosecution.

Din Muhammad P. W. 10 and Haji Muhammad P. W. 11, the eye-witnesses, have been disbelieved by the learned trial Judge. The only testimony on which the conviction has been based by the learned trial Judge is that of Ghulam Siddiq P. W. 9, an eye‑witness of the occurrence and the recovery of the wooden beams from the truck at Adds Lora Lai, District D. G. Khan.

4. I have heard the learned counsel for the parties and have also gone through the impugned judgment as well as the evidence on the record.

5. The main contention urged by the learned counsel for the appellant was that even if the entire evidence, on which the learned trial Court has relied, is believed, a case under section 304(11), P. P. C. is not made out. He urged that there was no intention on the part of the appellant to cause the death of the deceased and, moreover, it cannot be said on the facts stated by the complainant that Ghaus Bakhsh appellant can even have had the knowledge that the death of Pir Bakhsh was likely to occur if he was pushed out. The learned counsel pointed out that even the learned trial Judge has reached the same conclusion. For this he referred me to paragraph No. 17 of his judgment, which may be reproduced here for facility of reference

....Similarly it cannot be said that the deceased was pushed out when the truck was in such a speed that the accused can be said to have the knowledge that death was the likely result.

6. I am inclined to agree with the learned counsel for the appellant. Admittedly, the truck was being driven at a slow speed at the relevant time. Ghaus Bakhsh appellant and Altaf Hussain co‑accused who had stolen the wooden beams from the tea‑stall of the deceased were probably anxious to get rid of the witnesses and escape arrest by driving away fast. Most probably ft was for this reason that Altaf Hussain co‑accused pushed him out of the truck. But as is evident from the facts of the case and the evidence on the record there was no previous enmity between them and there could be no intention on the part of the accused to cause the death. Moreover, as observed by the learned trial Judge himself in the portion of paragraph No. 17 of his judgment, reproduced above, in view of the slow speed of the truck it cannot even be said that Altaf Hussain co‑accused or Ghaus Bakhsh appellant could have had the knowledge that the deceased would get crushed under the wheel of the truck. I feel that the case is covered, at the most, by the provision of section 304‑A. P. P. C. because the appellant and his co‑accused can be justifiably said to have committed a rash and negligent act which resulted in the death B of Pir Bakhsh.

7. As a result of the above discussion, I alter the conviction of the appellant from section 304(11) to one under section 304‑A/34, P. P. C. The conviction under section 379, P. P. C. is, however, maintained, Coming to the question of sentence, the offence under section 304‑A, P. P. C. is punishable with a maximum sentence of four years' R. I. The appellant has been in custody at least since the announcement of the judgment by the learned trial Judge (28‑9‑1972). It is now January 1975. I think that he has served sufficient sentence for the rash act and as such I feel that the sentence already undergone by him is sufficient. The fine of Rs. 500 is, however, maintained and when realised, shall be paid to the legal heirs of the deceased. The sentence of one year's R. I. under section 379/34 P. P. C. has already been served. The appellant is, there fore, ordered to be released forthwith unless he is wanted in some other cage.

8. With the above modification the appeal is dismissed.

Order accordingly.

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