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1975 Criminal Revision Application No. 105 of 1973, decided on 27th August

S. 304‑A‑"Rashness and negligence"‑Accused stopping his bus within a pace or two, after knocking down deceased‑No case of rashness and negligence', held, made out, in circumstance---Conviction and sentence, set aside.

Abdullah v. The State 1968 P Cr. L J 1416; Muhammad Yakoob v. The State 1968 P Cr. L J 1438; Terrance Anthony D Costa v. The State 1969 T Cr. L 1 1228 and Issa Khan v. The State P L D 1975 Kar. 723 rel.

Riazul Hassan for Applicant.

S. Murtaza Hussain for the State.

Dates of hearing : 15th and 25th August 1975.

This Revision Application seeks to revise order of learned Sessions Judge, Karachi, passed in appeal against the conviction of the applicant by S. D. M., Old Town, Karachi.

2. The brief facts are that on 27th October, 1969, at about 5‑00 p.m., the applicant, who was driving bus No. KAX‑9480, while driving rashly and negligently, hit a pedestrian Iqbal near Sirtaj Hotel. The prosecution alleges that P. W. Muhammad Hanif, traffic constable, had stopped the traffic to enable the pedestrians to cross the street over the zebra‑crossing. Deceased Iqbal was the last of those who were crossing the street. The bus of the accused driver is alleged to have hit Iqbal who fell down on the ground in an unconscious condition receiving the head injury. The bus stopped after about one or two paces.

3. The prosecution examined P. W. Muhammad Hanif, Traffic Con stable, P. W. Noor Muhammad, who owns a cabin shop outside Sirtaj Hotel and claims to have seen the incident; and P. W. Muhammad Ayub, another shopkeeper adjacent the Sirtaj Hotel. Other prosecution witnesses are formal.

4. The applicant alleges that it was not he who hit deceased Iqbal, but a rickshaw driver who after hitting him turned into a bye‑lane and vanished. He stopped his bus and was falsely implicated by the Police. He has examined 3 witnesses in support of his story, which apart from the conductor Kifayatullah, includes two independent persons namely P. W. 1 Arif, and P. W. 2 Yousuf, who claim to be present at the scene of occurrence.

5. The question whether the defence story has been substantiated or not is not material. The important question is whether the prosecution has proved element of rashness and negligence on his part. In Abdullah v. The State (1968 P Cr. L J 1416) it was held that mere statement of prosecution witnesses that a bus carrying 40 to 50 passengers was being driven by the accused at a very fast speed, without giving particulars, would not necessarily indicate that the bus was in fact being driven at a very fast speed, specially m the absence .of indication of an approximate actual speed. In Muhammad Yakoob v. The State (1968 P Cr. L J 1438) it was held that the prosecution must conclusively establish by direct evidence that the accused was rash and negligent. In the absence of such evidence conviction under section 304‑A was set aside. In Terrance Anthony D' Costa v. The State (1969 P Cr. L J 1228) it was held that the evidence that the accused was driving fast at the time of incident by itself cannot amount to rashness and negligence and within the meaning of section 304‑A. It was further held that the prosecution had failed to prove beyond reasonable doubt the death of the deceased was caused by rash and negligence on part of the appellant. The conviction was set aside.

6. In the present case, P. W. Muhammad Hanif, traffic Constable state that bus No. KAX 9480 came from Saddar Dawakhan side fast and hit a man who was on the crossing'. P. W. Noor Muhammad says that he, saw K. O. S. bus coming fast from Saddar Dawakhan which knocked down a man on the road two yards away from the footpath . . . . .. P. W. Muhammad Ayub is completely silent about the speed of the bus. Coupled with these is the evidence of the prosecution, although not consistent, that the bus stopped soon after hitting the deceased and after covering a distance of one or two paces according to P. W. Muhammad Hanif and 10 to 15 feet according to P. Ws. Noor Muhammad and Muhammad Ayub. Even the allegation of the prosecution that the bus was being driven fast is belied by this evidence that it stopped soon after hitting the deceased. Learned State Counsel alleges that the speed of the bus is to be seen in the context of the particular situation. Relying upon Issa Khan v. The State (P L D 1975 Kar. 723) learned State Counsel claims that speed of 70 miles an hour on a clear road may not be rash and negligent while a speed of 20 miles per hour in another situation may be so. This proposition has force, but in the present case where the bus allegedly stopped within a pace or two, it cannot be claimed by any stretch of imagination that the bus was being driven very fast.

7. The above discussion indicates that not only the prosecution has failed to prove rashness and negligence on part of the applicant but also that the bus driven by him was coming fast in a crowded area. In these circumstances the conviction cannot be sustained and is, therefore, set aside. The revision is allowed. The accused applicant is on bail. His bail bonds are discharged.

Appeal allowed.

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