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Criminal Appeal No. 12 of 1980, decided on 25th October, 1984.

‑‑‑S. 304‑A‑‑Death by rash and negligent driving‑‑Deceased coming from a side road to main road riding on motor‑cycle‑‑His motor‑cycle colliding with car of accused which was going on main road‑‑Car not colliding with motor‑cycle‑‑Mere fact that accused was driving car at a fast speed would not make him liable for rashness and negligence if road was clear‑‑Duty of a person coming driving from a side road towards main road, to see that main road was clear before entering same‑‑It was held doubtful if death of deceased was due to any rash and negligent act of accused‑‑Accused given benefit of doubt and acquitted.

Gul Zaman Khan for Appellant.

Akhlaq Ahmad for the State.

Date of hearing: 25th October, 1984.

The appellant has filed this appeal from the judgment of IVth Additional Sessions Judge, Karachi, dated 16‑1‑1980 whereby he was convicted of offence under section 304‑A, P.P.C. and sentenced to R.I. for two years and to pay fine of Rs.500 and in default of payment of fine to suffer R.I. for six months.

On 28‑2‑1976 the appellant was driving Car No. RIB 5232 by the main road. Deceased Qadeer Ahmad Siddiqui came riding on motor‑cycle from a side road. The Motor‑cycle collided with the left rear side of the car of the appellant as a result of which the deceased fell down and died. P.Ws. Gul Akbar and Iqbal Ahmad ware passing by the road at that time and had seen the incident. P.W. Gul Akbar put the deceased in the same car and took him to Jinnah Hospital, Karachi. The Dr. Incharge of the casualty section informed the Police Station Defence Housing Society about the incident. This incident had taken place on 28‑3‑1976 at 11‑00 a.m. on the crossing of Central Avenue, 10th Central Street, Defence Housing Society.

Mr. Fazalur Rehman was S. H .O. of the above police station at that time. On receiving intimation from the M.O. he recorded F.I.R. and proceeded to the hospital and gave letter to the doctor for holding post‑mortem examination. He also held inquest on dead body of the deceased and prepared such report in presence of Mashirs Ghulam Muhammad and Ghulam Abbas. The S.H.O. then proceeded the scene of the offence which was pointed out by Gul Akbar Shah and prepared Mashirnama. He also prepared sketch of scene of offence. After usual investigation the case was sent up for trial.

In his statement, the appellant has stated that he was driving the car on the main road at normal speed when from a small lane on his left side the deceased came riding on motor‑cycle and collided with the left rear mudguard of his car. The deceased was not having any licence for driving. He denies that he was driving negligently or rashly.

In support of the prosecution P.Ws. Gul Akbar Shah (Exh. 3), Iqbal Ahmad (Exh. 5), Haroon Rasheed (Exh.6), Muhammad Sadiq (Exh.9), Abdul Aziz (Exh.13), Fazul‑ur‑Rehman (Exh.15), Muhammad Wilat (Exh.22) and Syed Hassan (Exh.26) have been examined. Muhammad Wilat Exh.22 is a foot constable who was examined to prove that Dr. P.H. Rathi and Dr. Haleem Khan, who had examined the deceased and held post‑mortem examination had left service and were untraceable. P.W. Syed Hassan (Exh.26) is Senior Clerk in the office of the Police Surgeon, Karachi. He has produced certificates Exhs.23 and 24 issued by the above two doctors whose signature he has identified.

The main question for determination in this appeal is whether Qadeer Ahmad Siddiqui died as a result and negligent act of the appellant.

P.W.1 Gul Akbar Shah has stated that the appellant was driving his car at fast speed that the deceased driving motor‑cycle at slow speed came from the Western side, that there was collision between that motor‑cycle and the car as a result of which the motor‑cycle driver died. The witness put the deceased, who was identified as Qadeer Ahmad Saddiqui in the car of the appellant and took him to the hospital. This witness admits that he lives 15/16 miles away from the scene of offence. He denied that the incident had taken place on 10th Central Street. According to the site plan Exh.21, the site of the incident is shown at 10th Central Street. It is, therefore, doubtful if this witness had actually seen the incident. It is possible that he might have reached there later. The next witness Iqbal Ahmad has deposed that the accused was driving his car at fast speed while the deceased was driving motor‑cycle at slow speed. He further stated that the car hit the motor‑cycle due to negligent driving by the appellant as a result of which the motor‑cycle driver fell down and died and that he (witness) and one Gul Akbar Shah who happened to be there, had put the deceased in the same car and taken him to the hospital. In cross‑examination he admits that the accused was going by the main road while the deceased had come from the side road on the left side of the car. The next witness is Haroon Rasheed the Motor Vehicle Examiner, who had examined the car involved in this incident. On 28‑2‑1976, that is, the very day of the incident and found following damage:

"(1) Left rear mudguard front side dented.

(2) Left rear door bottom side dented.

(3) Left rear door unable to close.

(4) Left rear side between left rear door and rear wind screen damaged.

(5) From left door bottom side dented.

(6) Left rear wheel cup dented."

In his opinion the vehicle was in fit running condition the breaks were in working order."

From the admission of P.W. Iqbal Ahmad and the damage caused to the car, it appears that it was not the car which had collided with the motor‑cycle. On the contrary it was the motor‑cycle which had collided with the car as a result of negligent driving of the deceased himself.

The car was going by the main road on 10th Central Street whereas the deceased had come riding on motor‑cycle by a side road. It was the duty of the deceased to have seen that the main road was clear before proceeding further. The fact that the impact of the motor‑cycle with the car was on the left rear side of the car further proves that the appellant could not have been responsible for the collision. This is not a case of head on collision. The motor‑cycle coming from a side street had collided with the car coming by the main road. It is, therefore, doubtful if the death of the driver of the motor‑cycle was due to any rash or negligent act of the appellant. The fact that the appellant was driving at a fast speed would not make him liable for rashness or negligence. If the road was clear, there was no harm if the appellant drove fast. It is always the duty of the person who comes driving from a side road towards the main road to see that the main road was clear before he enters the same.

For the above reasons the case against the appellant has not been proved beyond reasonable doubt. I give him benefit of doubt, accept the appeal and set aside the conviction and sentence and acquit him of the offence he has been charged with. He is on bail. His bail bonds stand discharged.

H.A.K. Acquittal ordered.

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