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Criminal Revision No.145 of 1986, decided on 25th August, 1987.

---S.304-A--Rash and negligent act Eye-witnesses unanimously stating that after collusion with the truck deceased was brought out from underneath of truck which accused was driving and at that time deceased was lying near front right wheel of truck--Overwhelming evidence existing on record to substantiate said evidence which belied defence plea--Ocular evidence against accused inspiring confidence and witnesses having no enmity with him--At time of driving when he hit deceased, he was under influence of some intoxicant--Inspection of truck revealing no defect invehicle-- Conviction maintained ,and sentence of accused enhanced on suo moto notice.

Malik Muhammad Rashid and Ch. Wahid-ud-Din Virk for Petitioner.

Najam-uz-Zaman, A.A.G. assisted by Sh. Ehsan Ahmad for the State.

Date of hearing: 21st March, 1987.

Petitioner Bashir Ahmad son of Wali Muhammad, truck driver, was tried by a Magistrate at Faisalabad on the charge under section 304-A of the Pakistan Penal Code for having the death of Ilyas deceased by hitting the cycle of the deceased.

The learned trial Magistrate vide his judgment dated 22nd July, 1985 found the petitioner guilty on the said charge and thus the petitioner was convicted and sentenced to suffer rigorous imprisonment for a term of three years and to pay a fine of Rs .3,000 or in default of the payment of fine, to suffer rigorous imprisonment for a term of 9 months.

2. Aggrieved by the conviction and sentence, the petitioner preferred an appeal, but the same was dismissed by the learned Additional Sessions Judge Faisalabad, vide his judgment dated 15th February, 1986. This Revision Petition has been filed to assail both the orders referred to above.

3. The record in this case was sent for and perused. Having gone through the judgment, this Court came to the conclusion that the sentence awarded to the petitioner was not adequate. Hence, in exercise of suo motu revisional powers, a notice was issued to the petitioner to show cause that why the sentence be not enhanced.

4.Brief facts of the case are that after the occurrence which took place at about 12-30 a.m. on 1st July, 1983 near the Lorry Ada Faisalabad. The deceased who was then alive was taken to the hospital. On receipt of the information of the tragedy, ASI Muhammad Ashraf Police Station Civil Lines Faisalabad, reached the hospital where he recorded the statement of Hafiz-ur-Rehman. On the 'basis of the said statement, formal FIR was drawn, and a case under section 279/338 of the Pakistan Penal Code was registered against the petitioner. The deceased Ilyas subsequently succumbed to his injuries and, hence, the registration of the case was converted into one under section 304-A of the Pakistan Penal Code. Complainant Hafiz-ur-Rehman stated that at about 12 0'Clock in the night, he came to the Lorry Ada Faisalabad for boarding a bus for proceeding to Lahore. He noticed that Truck No.8213-FDA, driven by the petitioner, with full lights on reached near the left side of the entrance of the gate of Lorry Ada Faisalabad. The petitioner, while driving his truck, first attempted t0 collide with a lorry, but averted the same and then again tried to hit the scooter driver and then on the third occasion, the truck driver hit the deceased Ilyas who was riding a cycle with Aslam sitting with him on the carrier of the cycle. It was further stated that the deceased was driving the cycle on the left side of the road and after the completion of his duties as mechanic in the Government Transport Workshop was returning to his house. It was further stated that when the deceased reached near the Lorry Ada, the petitioner coming from opposite direction, hit the cycle of the deceased between the two front wheels of the truck. According to the first informant, there was a blast, and the petitioner leaving his truck ran away from the scene of occurrence while the lights of the truck were still on. According to the first informant, Muhammad Afzal, Muhammad Din, Khalid Mehmood and many others were attracted to the scene of occurrence, and all of them with great difficulty brought out the deceased Ilyas from underneath the truck. The deceased at that time was lying near the right front wheel of the truck. It was also stated that the petitioner was riving is truck rashly and negligently.

5. The petitioner was medically examined and in the opinion of the doctor, injury received by him had caused the death, and the same was sufficient in the ordinary course of nature to cause death.

6. At the trial, besides the first informant Hafiz-ur-Rehman P.W.1 Muhammad Din P.W.2, Muhammad Aslam P.W.3 Khalid Mehmood P.W.5 and Muhammad Afzal P.W.6 appeared as eye-witnesses of the occurrence. Hafiz-ur-Rehman P.W.1 complainant and Muhammad Din P.W.2, eye-witnesses are related to the deceased, but rest of the witnesses, namely, Muhammad Aslam P.W.3, Khalid Mehmood P.W.5 and Muhammad Afzal P.W.6 are independent and impartial witnesses.

7. The petitioner, in course of trial, denied the charge and also entered the witness-box. According to the petitioner, on the fateful night, he was coming to Faisalabad from Chiniot while driving his truck, when from the opposite side a scooter and a cycle was coming.

The scooter rider hit the cyclist, since the scooter was being driven fastly, it came towards the truck, and the petitioner in order to save the scooter driver, turned his truck towards the right side, on account of which bumper of the truck hit the deceased who was driving the cycle. The petitioner further stated that he was neither rash nor negligent, and the occurrence was unavoidable. In support of his plea, petitioner also produced two witnesses in defence, namely, Muhammad Hussain DW71 and Bashir DW-2. Both these eye-witnesses supported the petitioner.

8. I have carefully considered the entire evidence on the record. All the eye-witnesses unanimously stated that after the collusion, the deceased was brought out from underneath the truck, and at that A time deceased was lying near the front right wheel of the truck. There is overwhelming evidence on the record to substantiate the above piece of evidence. This fact alone belies the petitioner as well as the plea raised by him. If the occurrence had taken place in the manner as stated by the petitioner, the deceased would have not been found underneath the truck. Therefore, I have no hesitation to repell the contention raised by the learned counsel for the petitioner in support of the defence plea.

9. The ocular evidence inspires confidence and the witnesses have no enmosity with the petitioner. In fact, the petitioner with lights on while driving his truck fastly tried to hit a lorry then a scooter but unfortunately the deceased became the victim. I would further state that at the time of occurrence, the truck driver was under the influence of some intoxicant. Inspection of the truck revealed no defect in the vehicle, and thus near the Lorry Ada accident could B have been averted if the petitioner had acted with due care and caution. Our roads day by day are being reduced into death traps and, therefore, such crime needs deterrent punishment. The maximum punishment as prescribed in section 304-A, P.P.C. is ten years. In my view, sentence of three years is not proportionate with the crime because, not only the deceased was killed, but /slam (his companion) was also injured. For these reasons, I would dismiss this revision petition having no substance and merits in it. As far as question of sentence is concerned the same needs to be enhanced.

I have heard the learned counsel for the petitioner in response to the suo motu notice issued by this Court to show cause as to why the sentence of the petitioner be not enhanced. Learned counsel confined himself to the defence plea raised by the petitioner, which have already discarded. Accordingly, I would direct that the petitioner shall suffer rigorous imprisonment for a term of five years and to pay a fine of Rs.10,000 (Rs.ten thousand only) or in default of the payment of fine, to suffer further rigorous imprisonment for a term of nine months. It is further directed that the amount of fine, if recovered, shall be paid to the heirs of the deceased as compensation under section 544-A, Cr. P.C.

With these observations this revision petition is dismissed.

M.Y.H./B-32/L Petition dismissed.

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