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Criminal Appeal No. 368 of 1986, decided on 26th July, 1987.

---S.304-A--Rash and negligent driving--Accused hitting deceased when he was on his way home--Duty and responsibility of driver to drive in such a fashion so as to pass without striking any person or to have stopped it short of any person by application of brake- Accused's act indicating nothing else than his rashness and negligence and deceased was in no way to be blamed--Conviction and sentence maintained.

Ghulam Sarwar Chaudhry for Petitioner.

Muhammad Rafi Siddiqui for the State.

Dates of hearing: 22nd, 23rd, 30th June and 7th July, 1987.

Khalil Ahmad, son of Muhammad Ismail, caste Arain, aged 25 years, cultivator, resident of Chak No. 59, Police Station Raiwind, tehsil and district Kasur, has approached this Court in appeal against the judgment of the learned Additional Sessions Judge, Kasur, dated the 31st May, 1986, whereby he was convicted of the offence of causing the death of Muhammad Ashraf, son of Mehrban, caste Rajput, aged 33 years, resident of village Ghausia, police station Raiwind by rashly and negligently hitting him with his tractor under section 304-A of the Pakistan Penal Code and sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs. 2,000 and in default of payment thereof to suffer further rigorous imprisonment for six months. Fine, if realized, was directed to be paid to the widow of the deceased.

2. Admittedly Muhammad Ashraf died in consequence of the injuries that he received being struck with the tractor (No. KS 278), owned and driven by the appellant on the 18th September, 1981, at about 3-30 P.M. The deceased was carrying fodder on his head and proceeding to his village when the appellant came driving from behind, the truck struck the deceased who fell down and succumbed to the injuries at the spot almost immediately' thereafter.

3. In the first instance Islam-ud-Din, sister's husband of the deceased, P. W.4, reported the matter to the police as simple case of commission of offence punishable under section 304-A of the Pakistan Penal Code. However, subsequently on the complainant's representation that the appellant had intentionally killed the deceased due to grudge emanating from the dispute re sale of a buffalo the police challaned the appellant for the alleged commission of offence of culpable homicide not amounting to murder punishable under section 304 of the Pakistan Penal Code. The learned trial Court, nevertheless, charged the appellant with the commission of offence of murder punishable under section 302 of the Pakistan Penal Code. Ultimately the learned Court came to the conclusion that the alleged motive set up by the complainant was baseless and that the appellant had no deliberate intention of causing the death of the deceased. It convicted him of the commission of offence punishable under section 304-A of the Pakistan Penal Code and sentenced him as mentioned in the beginning of this judgment.

4. According to the statement of the appellant that he made on oath before the learned trial Court it is evident that the deceased died as a direct result of the injuries that he received when he was hit with the tractor driven by the appellant. The appellant gave explanation that he had been driving tractor at normal speed, that he had blown horn again and again and that the deceased had initially turned behind and when the tractor went near him he came in front of the tractor all of a sudden and was hit by the side of the tractor. However, this version of the occurrence was not put to any of the prosecution witnesses. It seems to be an afterthought and a manufactured affair. According to the eye-witness account the tractor driven by the appellant hit the deceased when he was on his way home and that the appellant did not take any care to avoid the accident. It was the appellant's duty and responsibility to drive the tractor in such a fashion so as to pass without striking the deceased or to have stopped it short of the deceased by the application of brake: His act of hitting the deceased with the tractor resulting in the death of the deceased indicates nothing else than his rashness and negligence, the deceased was in no way to be blamed. The appellant has been rightly convicted. The sentence passed upon him is appropriate and does not need reduction. The appeal is dismissed.

M.A. K./K-35/L

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