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Criminal Revision No. 91 of 1985, decided on 26th April, 1986.

‑‑‑S. 304‑A‑‑Rash and negligent driving‑‑Accused driving tractor with trolly behind‑‑Trolly loaded with iron bars‑‑Accused overtaking tonga at crossing‑‑Accused having no licence‑‑Tractor striking against cycle of deceased and thereafter deceased run‑over by right rear wheel of trolly‑‑Accused unable to control his vehicle appearing to be driven at some speed‑‑Judgments of Courts below, held, were not arbitrary or capricious in circumstances‑‑Sentence found‑excessive was, however, reduced.

Sh. Zia Ullah for Appellant.

Arshad Khan for the State.

Rana Muhammad Sarwar for the Complainant.

This is a revision petition filed by Muhammad Boota, petitioner, against the judgment of a learned Additional Sessions Judge of Lahore, dated 19‑2‑1985, dismissing his appeal. Earlier, a Section 30 Magistrate of Lahore, by his judgment, dated 23‑8‑1984, had convicted the petitioner under section 304‑A, P.P.C. and sentenced him to three years rigorous imprisonment with a fine of Rupees fifteen thousand (Rs.15,000) or in default thereof to undergo further rigorous imprisonment for six months. The fine, if realized, was ordered to be paid to the father of Niaz Ahmed, deceased.

2. The prosecution case in brief is that on 2‑5‑1984, Muhammad Boots, accused while driving a tractor bearing No. LEM‑7443, with a trolly behind loaded with iron bars, knocked down Niaz Ahmed, deceased, and caused his almost instantaneous death, within the area of Tonga stand Baghbanpura, Lahore. The deceased was crushed by the rear wheels of the trolly tied to the tractor. The accused was allegedly driving the vehicle rashly and negligently in a busy thoroughfare.

3. The only case presented for the petitioner for examination was whether 'the deceased got over‑run by the right rear wheel of the trolly, just as the deceased turned right to cross the road in order to go to the Main Bazar Baghbanpura. It is urged that at the point of impact, the tractor‑ eras ahead of the trolly and Muhammad Boots, petitioner, could not have then seen the deceased on his cycle, who would have been much behind him and that the case is one of inevitable accident, as the deceased himself could not have avoided the debacle. In this limited context, the evidence of Arif Javid P.W. 2 and Javaid Iqbal P.W.4 the eye‑witnesses of the occurrence, and of Muhammad Akbar S.I. P.W.3 the Investigating Officer, has been read. However, from the said evidence, it is clear that the tractor first struck against the cycle and thereafter the deceased got over‑run by the right rear wheel of the trolly behind. The petitioner apparently had no driving licence. He was overtaking a Tonga. The point of accident happens to be the place where the G.T. Road is crossed by another, one of which leads to the Main Bazar Baghbanpura. It is not a crossing in the regular sense of the term, but being a point where the two streets meet from the opposite directions and where cross‑traffic is likely to be encountered, one would have expected the petitioner to be careful whilst overtaking the Tonga. He not only struck the deceased's cycle, but could not even control his vehicle, with the result that the wheel of the trolly ran‑over the deceased. It seems that the tractor was being driven at some speed, for otherwise it could have been brought to a sudden stop. In trying to over‑take the Tonga on the left, the petitioner swerved to the right, almost brushing the mid‑partition line and squeezing the deceased to his death. Taking all circumstances into consideration, the judgments of both the lower Courts below do not appear to be arbitrary or capricious. The petitioner had no driving. B licence. He appears to have been properly convicted under section 304‑A, Cr.P.C.

4. The only question that now remains is that relating to sentence. A large fine has been imposed on the petitioner. In these circumstances, the sentence of three years rigorous imprisonment is excessive. Taking all circumstances into consideration, I would reduce the sentence of imprisonment to eighteen months' rigorous imprisonment. The fine shall remain.

5. For the foregoing reasons, whilst maintaining the conviction of the petitioner under section 304‑A, P.P.C., I would reduce his sentence to eighteen months' rigorous imprisonment with a fine of Rupees fifteen thousand (Rs.15,000) or in default thereof to undergo further rigorous imprisonment for six months. The fine if realized, shall be paid to the father of Niaz Ahmed, deceased. The benefit of section 382‑B, Cr.P.C. shall be granted to the petitioner.

6. The petitioner is on bail. He shall be taken into custody and sent to jail to serve out the remaining portion of his sentence.

7. This petition, therefore, stands partly accepted, in terms of reduction in the sentence, as ‑stated above.

S. A. ‑‑‑‑‑ Petition partly accepted.

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