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Criminal Revision No. 1005 of 1976, heard on 3rd August, 1987.

---S.304-A--Rash and negligent driving--Truck loaded with iron bars was being reversed with the help and direction of deceased conductor--Truck hitting against Pulli and its wheels going into the drain in this process and it fell on its right side causing death of conductor--Evidence not disclosing that accused was in any manner oblivious of due care and caution required of a prudent driver--Case, held, appearing to be one of mere error of judgment of driver and no criminal liability could be fastened upon him--Conviction and sentence set aside.

Ghulam Mehmood Qureshi for Petitioner.

Cornl. Abdul Rashid for the State.

Date of hearing: 3rd August, 1987.

This is an application in revision by Muhammad Zaman, a truck driver, who was convicted by Assistant Commissioner/ Magistrate Section 30, Wazirabad, under section 304-A, P.P.C. and sentenced to two years' R.I. on 24-2-1976 and whose appeal was dismissed by Additional Sessions Judge, Gujranwala on 26-10-1976.

Prosecution case was that on 17-7-1975, the applicant was reversing truck No. GT-5967 loaded with iron bars, in a rash and negligent manner, when it struck against the Pulli and fell down on its right side causing the death of Mushtaq conductor. On the statement of Rana Dilawar Hussain (Exh. P.C), a case under section 304, P.P.C. was registered at police station City, Wazirabad, on the same day at 8-25 a.m. vide F. I. R. Exh. P.C. /1. After investigation, accused was sent up to face trial under section 304-A P.P. C . before the Assistant Commissioner/ Magistrate Section 30, Wazirabad. Seven witnesses gave evidence for prosecution. On its examination, the trial Magistrate found a case made out against the accused and gave him a formal charge-sheet under section 304-A, P.P.C. on 20-2-1976. Accused denied the charge, pleaded innocence and also desired to produce evidence in his defence. In his statement, he deposed that the death of Mushtaq was a pure case of accident and was not the result of any rash or negligent act of driving on his part. In fact, the accused fixed the responsibility for the accident on the deceased conductor. He produced two witnesses in his defence, who supported the stand taken by him. It was brought out in defence evidence that the truck had fallen down because of the wrong direction given by the deceased conductor. Learned Magistrate found him guilty for the offence, with which he was charged, and gave him two years' R.I. It was held that the alleged contributory negligence on the part of the deceased conductor could not negative the proved rash and negligent driving of the applicant. On appeal, conviction and sentence both were maintained. Learned Appeal Court found that the appellant being driver was duty bound to see the location and to drive back the truck in a safe manner, but he failed to do so and acted negligently, in the result whereof, truck dashed against the Pulli, fell down on its right side and caused the death of the conductor.

For the applicant, it is contended by Mr. Ghulam Mehmood. Qureshi, Advocate, that the facts established on record do not prove either want of due care or breach of any duty. Counsel also urged that there is no indication on record as to the speed of the truck, at which it was being reversed or that the applicant in doing so was, culpably negligent. In fact, evidence disclosed that the truck loaded with iron bars was being reversed with the hemp and direction of the deceased conductor. In this process truck is shown to have hit against the Pulli and its wheels went into the drain and it fell on its right fide causing the death of Mushtaq conductor. Learned State counsel supported the decisions of the Courts below and argued that on facts found conviction was rightly recorded.

Facts are not much in dispute. Neither the death of the conductor nor that the applicant drove the truck are in dispute. In fact, occurrence is admitted. The question, which really arises, is whether the accused/ applicant was rash and negligent in driving the truck. From the facts established on record, it clearly appears to be a case of mere error of judgment of the driver, and no criminal liability can be fastened upon him. Despite all precautions and the aid of the conductor, truck in question met with a mishap taking an innocent life. Whether or not the applicant was rash or negligent was, a question of fact turning on appreciation of evidence, which, in the' case, did not disclose that the accused was in any manner oblivious' of due care and caution required of a prudent driver. In my judgment, prosecution failed to establish clearly the guilt of the accused. I would, therefore, allow this application in revision, set aide the order of conviction and sentence passed upon the applicant and acquit him. The applicant is on bail and need not surrender.

M.A. K./M-336/L

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