Find a Lawyer

Criminal Revision No. 446 of 1985, decided on 26th January, 1986.

‑‑ S. 304‑A‑Rash and negligent driving‑Medico‑legal report Casualties taking place admitted and established‑Reference to Medico‑legal report of injured as well as deceased, held, not necessary.

---S. 304‑A‑‑Criminal Procedure Code (V of 1898), S. 439‑Rash and negligent driving‑Witnesses, examined by prosecution were persons travelling in bus, neither hostile in any way to accused nor there was any reason for them to falsely depose against him‑All such witnesses unanimously holding accused responsible for rash and negligent driving‑Evidence existing to the effect that some of passen gers repeatedly requested accused to slow down but he turned a deaf ear to them‑No element of doubt existing that casualties were result of rash and negligent act on part of accused‑Plea of defence as to opening of tie‑rod of bus prima facie, not established, either by leading some evidence in support of it or by attempting to spell it from prosecution evidence‑‑Conviction and sentence maintained in circumstances.

Terence Anthony D' Casta v. The State 1969 P Cr. L J 1228 ; Ghulam Muhammad v. The Crown P L D 1953 Lah. 260 ; Umar Khan and another v. Member Board of Revenue, West Pakistan Lahore and another P L D 1965 (W. P.) Pesh. 104 and Ali Muhammad v. The State P L D 1973 Kar. 427 ref.

---S.304‑A‑Rash and negligent driving‑Prosecution examining passengers, travelling in bus, which was best evidence available to prosecution and not producing any expert evidence to prove rash and negligent driving‑Non‑production of expert evidence, held, would not mean that evidence on record was to be rejected outright.

---S. 304‑A‑Rash and negligent driving‑Appreciation of evidence Defence evidence not insisting in getting his statement recorded by police but admitting in cross‑examination that his statement was not recorded by police‑Such witness was examined by accused because he was favourably inclined towards him‑Such evidence, held, could not be given preference over other evidence.

‑‑ Principle laid down in a particular case, held, was to be applied keeping in view facts of case to hand.

---S. 304‑A‑Appreciation of evidence‑Accused taking a particular plea, held, had to establish same at least prima facie either by leading some evidence in support of that or by attempting to spell that from prosecution evidence.

‑‑ S. 304‑A‑Rash and negligent driving‑Punishment provided under S. 304‑A, Penal Code, not proper solution to massacre which takes place everyday on Highway‑Attention of law‑makers to take appropriate legislative measures to stop such merciless killing of innocent law‑abiding citizens for lust of few extra pennies by driver and his mater drawn‑More severe and deterrent punishment, both for owner and employees, and strict surveillance by Highway Patrol desired.‑[Sentence].

S. M. Latif Khan Khosa for Petitioner.

R. A. Jeremy for the State.

Date of hearing :13th October 1985.

Mehraj Din alias Majoo son of Barkat Ali, caste Sheikh, resident of Pak Bazar, Gujranwala was tried by Judicial Magistrate Section 30, Daska, for the death of 4 persons and causing injuries to 19 passengers by rash and negligent driving. The trial Court convicted Mehraj Din and sentenced him by judgment, dated 21‑6‑1984 as under :‑

Two months' R. 1. under section 279, P.P.C., three months' R.I. under section 337, P.P.C., six months' R. 1. under section 338, P.P.C. and four years' R.I. under section 304‑A, P.P.C. with a fine of Rs. 12,000. Half of the fine if recovered was ordered to be paid to the legal heirs of the deceased as compensation or in default of payment of fine to undergo R. 1. for one year.

The sentences were to run concurrently.

Mehraj Din appealed against his conviction and sentence. The Addi tional Sessions Judge by judgment, dated 31‑7‑1985 dismissed the appeal. The convict has now filed this revision. .

The tragedy took place on 12‑3‑1982 when the petitioner was driving Bus No. 3677/LEY which hit against the trees on the Highway.

The case was registered at Police Station Daska on the 4tatement of Muhammad Rafique son of Muhammad Ismail. Exh. P. A. recorded by Hassan Akhtar A. S. I, at the spot after having received information about the incident. Muhammad Rafique along with his brother Muhammad Malik and other family members boarded the bas from China Chowk for Lahore. There were 20/25 passengers in the bus. After he got in the bus, he noticed that the petitioner was driving the bus in a rash and negligent manner. The passengers requested hint not to be so rash. The driver paid no attention. The bus got out of control. It struck against the trees. Two Kikar trees were uprooted and ultimately it crashed against the third one. Muhammad Ashiq his brother, his relatives and other passengers were also seriously injured. Ashiq died at the spot. The injured were removed to Civil Hospital, Sialkot, for medical aid.

Prosecution examined some of the passengers as witnesses who deposed that the bus was being driven by the petitioner in rash and negligent manner.

Muhammad Malik, one of the passengers deposed that the father‑in -law of his brother had died. He along with others got into bus from China Chowk Sialkot and was coming to Lahore. The bus was being driven by the petitioner in rash and negligent manner. There were 25 other passengers. When they crossed Adda Bus Stand, the bus struck against a tree. His brother Ashiq died in the collision. He himself was injured along with other family members. Two other persons from :‑:page Tarkalian died as a result of this mishap.

Muhammad Rafique when examined by the trial Court affirmed his statement made before the police. However, he stated that he did not remember the number of the bus but one which had been parked outside the trial Court was the same which he boarded and blamed the petitioner for the crash due to rash and negligent driving.

Kaneez Akhtar along with other family members including her husband was travelling in the bus because her father had died and she was coming to Lahore. She got into the Bus from China Chowk, Sialkot, for Lahore.

She stated that the driver was very rash. He was driving so fast that the child which Kaneez Akhtar was carrying in her lap fell down. She requested the driver to slow down. So did the other passengers but the driver paid no attention to that.

It was 8 o'clock to the morning when the bus collided with trees. The impact was so severe that three trees were uprooted. Kaneez Akhtar and others sustained number of injuries. Her husband Ashiq died at the spot.

Ghulam Rasool was the next witness examined by the prosecution. He was travelling in the bus. According to him near Adda Bus Stand the driver lost control of the bus due to high speed. The passengers asked the driver to slow down but he did not bother. The bus struck against a Kikar tree and Shisham tree as a result of which Ghulam Rasool fell out of the bus. He was injured. According to him 20 other passengers were also injured. He testified that 4 persons died as a result of this crash.

All the injured, namely, Raj Bibi, Dilawar Hussain, Hussain Bibi, Barkat Ali, Kaneez Akhtar, Muhammad Malik, Allah Ditta, Muhammad Sharif, Muhammad Khaliq, Muhammad Hussain, Rukhsana, Bilqees Bibi, Muhammad Rafique, Shaukat, Ghulam Rasool son of Kala Khan, Ghulam Rasool, Muhammad Bashir, Rehmat Ali and Sakina Bibi were medically examined. Muhammad Ashiq, Nazeer Ahmad, Muhammad Sharif and Rebmat Ali died. Their dead bodies were medically examined by doctors. Post‑mortem was not conducted in this case.

I do not think it is necessary to refer to the medico‑legal report. of the injured as well as deceased because it is established and admitted that fatal and 19 other casualties took place.

The appellant when examined by the trial Court denied the charge, His stand was that it was a case of accident not of rash and negligent driv ing. He stated that :‑

He examined Khawaja Farasat Ullah, Muhammad Azam and Rashid Ahmad as defence witnesses. Khawaja Farasat Ullah, a Journalist, deposed that the incident took place due to failure of the tie‑rod.

Muhammad Azam, a motor mechanic was bi ought to the spot by the‑owner of the bus. His testimony was that on coming to the spot he noticed that the tie‑rod was broken.

Rashid Ahmad, a passenger, who was injured in the incident said that the petitioner was driving the bus at the normal speed.

This petition came up for hearing on 7‑9‑1985. The learned Judge who dealt with this petition passed the following order :

"Notice for 22‑9‑1985 when the criminal revision will also come up for bearing.

Order was passed to Crl, Misc. No. 1 of 1985 which was for suspension of sentence. I hereafter, it was fixed before me on 22‑9‑1985. I observed that only the question of suspension of sentence was to be decided but on the said date record had not been received. So, 1 ordered the office to obtain the record from the lower Court and the case was adjourned to 12‑10‑1985. On the said date counsel was not available. On the following day, I heard full dress arguments in this revision treating the same as if it had been admitted to regular hearing.

Learned counsel for the petitioner after taking me through the evidence contended that it was an accident For which the petitioner was not to be blamed nor was he at fault.

It was further submitted that the evidence led by the prosecution failed to establish the essential ingredient of section 304‑A, P. P. C. The two Courts below erred in law in not appreciating the plea taken by the peti tioner in his statement under section 342, Cr. P. C.

Learned counsel cited case of Terence Anthony D' Casta v. 'The State (1969 P. Cr. L J 1228) Reliance was also placed on Ghulam Muhammad v. The Crown (P L D 1953 Lah. 260).

Learned counsel then cited a D. B. decision of the Peshawar High Court in Umar Khan ‑and another v. Member Board of Revenue, West Pakistan Lahore and another (P L D 1965 (W. P.) Pesh. 104), wherein it has been observed

"We are not unmindful of the fact that mere speeding does not cons titute a rash and negligent act and, therefore, in a given case notwithstanding the discharge or acquittal of the accused for rash and negligent driving there may be a finding or some other legal evidence from which it can be held that the driver had committed a breach of clause (b) of subsection (3) of section 59 of the Act by driving the vehicle in excess of the maximum limit and in such a case notwithstanding the acquittal or discharge of the accused the Regional Transport Authority may suspend the licence for violation of the breach of clause (b) of subsection (3) referred to above."

Learned counsel. further submitted that in the absence of any expert opinion the plea of the petitioner could not be brushed aside. He relied on observation made in the case of Ali Muhammad v. The State (P L D 1973 Kar. 427).

I have also beard learned counsel appearing on behalf of the State who supported the judgments of the two Courts below and argued that the prosecution proved its case beyond doubt. The petitioner had been rightly convicted and sentenced.

The witnesses examined by the prosecution were the persons travelling in the bus. They were not hostile in any way to the petitioner nor there was any reason for them to falsely depose against him. All of the unanimously held the petitioner responsible for rash and negligent driving. It has come in evidence that some of the passengers repeatedly requested the petitioner to slow down but he turned a deaf ear to them. The collision was so severe that three trees were uprooted. In this sequence I once again refer to the statement of Mst. Kaneez Akhtar when she said that the but was so fast that the child in her lap fell down. No doubt the prosecution did not produce any expert but that does not mean that the evidence on record is to be outright rejected. In my view the prosecution could not do better than examine the passengers travelling in the bus which was the best evidence available to the prosecution.

I have also considered the defence evidence. The only material witness was Abdul Rashid. He was a passenger in the bus. He was injured. If he was so sure about the innocence of the petitioner then he could have insisted in getting his statement recorded by the police but he admitted in his cross‑examination that his statement was not recorded by the police. He was examined by the petitioner because he was favourably inclined towards him. Therefore, I am not prepared to give preference to hiss evidence over the evidence of other witnesses.

Khawaja Farasatullah, a journalist knew nothing about the mechanism of the automobile.

Muhammad Azam though a motor mechanic, came to the spot after the crash. It is quite natural that at that time the tie‑rod must have been broken due to severe impact

I have gone through the case‑law referred to above. The principle laid down in a particular case is to be applied keeping in view the facts of the case in hand. 1n this case right from the beginning till the crash took place it is established that the driver was rash and negligent. So I do not think that the learned counsel can get benefit from any of the cases referred to above especially the D. B. decision of the Peshawar High Court, which was a writ petition against the Regional Transport Authority Peshawar, whereby the decision of the Authority was armed on appeal by the Board of Revenue, West Pakistan, Lahore.

So far as the plea taken by the petitioner is concerned, it does snot mean that when a particular plea is taken it must be accepted. The accused raising such a plea is also expected to establish it at least prima facie either by leading some evidence in support of it or by attempting to spell it from the prosecution evidence.. ,..Learned counsel has failed to do so,

I have not come across and element of doubt that the casualties in this case were the result of rash and negligent act on the part of the petitioner. This revision is, therefore, dismissed.

Before concluding, I am constrained to make two observations. First, I fail to understand what persuaded the trial Court not to give maximum sentence in this case when the Magistrate himself observed that the petitioner deserved no leniency with regard to punishment. While making this observation I posed a question to‑myself as to why should not I enhance the sentence but I declined to do so because I am neither the prosecutor nor the persecutor.

Secondly, I feel that the punishment provided under section 304‑A, P. P. C. is not proper solution to the massacre which takes place every day on the Highway. It is a matter of common knowledge that many marriage parties travelling on the Highway are turned into funerals. The law makers never paid proper attention to stop this merciless killing of innocent law‑abiding citizens for the lust of few extra pennies by the driver and his master.

It is not for me to give advice, but I think a more severe and deterrent punishment, both for the owner and the employee, and strict surveillance by the Highway Patrol may, at least, reduce the number of such casualties.

M. Y. H. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.