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Criminal Revision No. 893 of 1974, decided on 8th February, 1982.

--S. 304-A-Rash and negligent driving, assessing of-Plea of petitioner that near place of occurrence another bus from opposite side approached with full dazzling headlights, thereby rendering everything invisible on side of road and when in order to give way to on-coming vehicle he drove towards left, it resulted in collision with tractor-trolley, with no parking lights, appearing to be more reasonable-Collision, held, occurred because of non-observance of traffic rules by other driver who crossed bus driven by petitioner-Conviction and sentence set aside in circumstances.

M. Sultan Alam for Appellant.

Ch. Nazir Ahmad for A. A. G. for the State.

Date of hearing: 8th February, 1982.

This is a revision petition filed by Muhammad Aslam son of Muhammad Khan caste Rajput resident of Government Weaving Factory, Shahdara Bagh, Lahore, who was convicted by a Magistrate 1st Class under section 304-A, P. P. C. and sentenced to undergo rigorous imprison ment for 2 years and a fine of Rs. 1,000 and in default of payment of fine, further rigorous imprisonment for 4 months. On appeal the learned Additional Sessions Judge, Sahiwal, vide his order dated 4th December, 1974 while maintaining the conviction reduced the sentence to 11 years' simple imprisonment and a fine of Rs. 500 on the ground that the petitioner was an old man of 60 years age.

2. The brief facts of the prosecution case are that the petitioner was driving Bus No. 4555/MY at 9-00/10-00 p. m. on 5th July, 1970 from Okara to Lahore. He was allegedly driving the bus at high speed and did not listen to the protests by the passengers who asked him to slow down the speed. He had covered hardly two miles from Okara when a bus came from the opposite side, he took his vehicle to the left side of the road in order to give way to the bus coming from the front side. As soon as he took his bus towards the left it banged into a tractor-trolley which was parked, without its parking lights. In that collision two bus-passengers, namely, Arshad Pervez and Ahmad Din died while Muhammad Saeed Tahir (P. W. 14). Ibrahim (P. W. 8) and Siraj Din, Muhammad Siddique P. Ws. (not produced) received injuries. A report Exh. P. A. was lodged by Muhammad Saeed Tahir (P. W. 14) with the police which was recorded by A. S. I. Altaf Hussain (P. W. 11) at 12-30 mid-night on 6th July, 1970 on the basis of which formal F.I.R. Exh. P. A./1 was drawn up by H. C. Faryad Ali (P. W. 4). After the necessary investigation the challan against the petitioner was put in the Court of Ilaqa Magistrate who tried the petitioner under section 304-A, P. P. C. and recorded an order of conviction as stated earlier.

3. At the trial, 14 witnesses were examined by the prosecution in support of its case while the petitioner examined two witnesses in his defence. The petitioner pleaded at the-trial that at 9-00/10-00 p. m. on 5th July, 1970 he was driving Bus No. 4555/MY from Okara to Lahore at a moderate speed in a careful manner. When he reached near the place of occurrence another bus came from opposite side with full dazzling lights which affected his eye-sight to the extent that he could not see clearly the sides of the road and consequently the tractor-trolley standing on the left side was also not visible to him and when he drove to the left side his bus collided with the tractor-trolley. He further stated that the accident was beyond his control although he was neither driving fast nor was he careless. He produced .two witnesses 'in his defence, namely, Khaja Ehsan Ullah (D. W. 1) and Mudassir Hussain (D. W. 2) who claimed to be travelling by the same bus at the time of occurrence. They had supported the plea of the petitioner. However, they admitted to have not appeared before the police or made any statement during the investigation.

4. The factum of accident is not denied by the petitioner and, there fore the only point which is to be looked into is whether the plea taken by the petitioner that he did not drive the bus rashly and negligently is borne out by the evidence on record or not. No doubt that there is con current finding by the two Courts below against him but the learned counsel for the petitioner contended that they misread the evidence and that the case of the petitioner has been materially prejudiced.

5. I have gone through the record with the assistance of learned counsel for the petitioner and for the State.

6. The evidence material for the decision of this case is available in, the statement of Muhammad Saeed Tahir (P. W. 14) who is the first informant and was also one of the passasgers travelling in the ill-fated bus at the time of occurrence. Muhammad Hanif (P. W. 7) and Ibrahim (P. W. 8) are the persons who were sitting in the trolley with which the bus driven by the petitioner had collided. Mumtaz Hussain (P. W. 13) is the driver of the said tractor who parked it and went away to urinate.

7. Muhammad Saeed Tahir (P. W. 14) has categorically stated that when their bus reached at a distance of about 3 miles from Okara to wards Lahore, a bus or truck came from the opposite side with its dazzl ing headlights. The petitioner in order to give way to that vehicle drove towards his left and when both the vehicles crossed each other the dazzling lights rendered everything invisible on the side of the road. In this Situation the petitioner was unable to discern 4 tractor-trolley parked on the same side, with no parking lights and the collision took place. He further stated that if the driver of the vehicle coming from Lahore side had applied the dipper and dimmed the headlights, then the petitioner would have been able to see the tractor-trolley. Muhammad Hanif (P. W. 7) and Ibrahim (P. W. 8) although did not admit that at the relevant time a bus/truck was coming from the Lahore side yet they were confronted with their statements made before the police wherein this fact clearly had found mention. This fact was also incorporated in the F. I. R. lodged by Muhammad Saeed Tahir (P. W. 14). The speed of the ill-fated bus, as stated by some of witnesses, was 40-45 miles per hour, when it met the accident.

8. The statements referred above lead to the conclusion that the bus was not being driven rashly or side had cared to dim the headlights the petitioner would have seen the tractor and slowed down or stopped the bus to avert a collision. The learned Additional Sessions Judge while dealing with the plea of the petitioner, observed in the following words:-

"On the Highway if some bus with headlights on is coming from the opposite direction, anything stationed on the way can easily be sighted or located by the lights of both the buses. It is not all of a sudden except in the case of turn of the road (which is not the case in the present one) that two buses coming from the opposite direc tion came across. The distance is narrowed slowly and before both the buses come at one point; everything in-between them on the road or by its side is clearly visible."

9. I am constrained to hold that the observation made by the learned Additional Sessions Judge is imaginary and against practical experience. A person having a little experience of driving at night time knows that when two vehicles coming from opposite sides pass each other without their bead-lights being dimmed that it would flash with dazzling intensity causing blindening effect on the other driver and he is unable to discern clearly in his front for some seconds to half a minute. At night time usually the road-accidents occur because majority of the drivers do not use dipper while crossing the traffic coming from the opposite direc tion. The plea of the petitioner appears to me reasonable. It is possible that when he drove a little towards his left in order to give way to the vehicle coming from opposite side he had gone very close to the trolley already parked on that side and by the time he recovered from the blindening affect of the flash of the headlight of the vehicle which came from his front side, it did not remain within his control to avoid the collision with the trolley.

10. In these circumstances, I am of the view that the collision had not occurred due to rash and negligent driving by the petitioner, rather it occurred because of non-observance of the rules by the other driver who crossed the bus of the petitioner coming from the opposite direction.

11. For the above reasons, I am inclined to accept this revision petition. Thus the result is that the petitioner's conviction and sentence under section 304-A, P. P. C. is set aside and the petitioner is acquitted. The petitioner is on bail. He is discharged of his bail bonds.

S. G. D. Petition accepted.

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