P L D 1958 Karachi 445 (PLP)

Hassan Ali for Respondent. Date of hearing : 19‑5‑1958. WAHIDUDDIN AHMED, J.-- Muhammad Siddiq the applicant was convicted under section 338, P. P.. C. by Shaikh Zikrur Rehman, S. D. M., Nazimabad on the 23rd of August 1957 and sentenced to six months' R. I. The matter was taken in appeal and Mr. A. H. Kureishy, IV Additional District and Sessions Judge, Karachi by order dated 28‑10‑1957 maintained the con viction and dismissed the appeal. The applicant has now come in revision and has challenged the findings of both the Courts below on the ground that the facts proved in this case do not warrant the conviction under section 338, P, P. C. The applicant was driving a passenger bus No. KAP 4416 on 3‑7‑1956 towards Nazimabad. At the Golimar Bridge end he knocked down a boy by name Maqsood, aged nine years. This boy ran to cross the road from the left side of the road to the right side, was knocked down by the front side of the applicant's bus and received serious injuries on his arm and forehead. The trial Court convicted the applicant on the ground that the accident took place due to insufficient and inadequate brakes and due to improper speed. The appellate Court, however, came to the conclusion that the bus had defective brakes, that this by itself constituted both rashness and negligence, that the applicant must have known as a bus driver that without proper brakes he was jeopardising the lives of human beings and refused to interfere with the conviction as accidents by buses have become a menace in the City of Karachi. The learned counsel for the applicant has taken me through the entire evidence in the case. It shows that the applicant's bus at the time of the accident was running at a moderate speed, that it was on .the right side of the road and the accident took place because the boy concerned ran to cross the road from the left side to the right side of the road: It would thus appear that the conviction of the applicant is based merely on the ground that his brakes were not in proper condition and were defective in certain respects. In my opinion this fact alone cannot lead to the conviction of the applicant under section 338, P. P. C. The learned counsel for the applicant is perfectly justified that this by itself may be good ground for conviction under section 121 of the Motor Vehicles Act, and that the conviction under section 338, P. P. C. must be based on the finding that the negligent act was directly responsible for the accident in question. I have carefully examined the prosecution evidence. 4.11 the prosecution witnesses have admitted that the applicant promptly applied brakes and the bus was stopped within four or five paces from the place where the impact with the boy took place. This clearly shows that the defective brakes were not the direct cause of the accident. I am aware that large number of accidents are taking place by rash and negligent driving in Karachi, but this does not mean that every case of accident should result in conviction. It is the duty of the learned Magistrates and the appellate Courts to find out whether the alleged offence comes within the purview of the relevant provisions of the Penal Code. As pointed out by Shabir Ahmad, J. in Ghulam Muhammad v. The Crown (P L D 1953 Lah. 260) : " A man driving a motor vehicle at the speed of about 20 miles an hour on a road on which children of small age are running about will be rash and negligent while the same person driving his vehicle at the speed of, say, 70 miles an hour on a clear road will not be so". It is therefore a question of fact in each case whether the accident in question was due to the rash and negligent driving of the motor vehicle. The facts of this case disclose a different state of affairs. The applicant was driving the vehicle at a moderate speed and was at the end of the bridge, on the slope side, when a boy who ran to cross the road was knocked down by its front mudguard. The most important witness P. W. 1 Yaseen Khan of Traffic Police, at the time of the accident was sitting in the rear portion of the bus. He admitted that the bus was going at a moderate speed and that it stopped when the brakes were applied. Now what is to be seen in this case is whether the applicant was negligent in applying the brakes. In my opinion the evidence in this case points to the contrary and shows that the applicant acted promptly and that is the reason why the boy was found in between the fore wheels of the bus. The learned counsel for the State has invited my attention to two authorities : Kanshi Ram v. Emperor (A I R 1927 Lah. 165) and Emperor v. Abdul Latif and another (A I R 1944 Lah. 163) in support of his contention that in the case of a person driving a motor‑car the car should always be kept in a state of control sufficient to enable the driver to avoid running into any passenger who may fail to step off the road, however annoying the dilatoriness of the foot passenger may be to the driver. I entirely agree with the observations of the learned Judge in A I R 1927 Lah. 165 on the above facts, but as I have already observed the present case is distinguishable on facts in so far as the driver was able to control his vehicle and that is why the accident in question did not result in fatal injuries. So far as the other authority A I R 1944 Lah. 163 is concerned, I do not think it is applicable to the present case. There the learned Judges only discussed what is negligence. No body can dispute the definition of negligence given in that case. The case reported in Pulin Behary Nandi v. Emperor (30 Cr. L J 402) supports the contention of the applicant. In that case it was held that the accused could not be convicted of an offence under section 338, P. P. C. when it was found that the speed of the motor lorry driven by him was moderate, that he was driving on the right side of the road and that the accident took place when a little boy in crossing the road came in contact with the lorry and received injuries. In another case reported in Emperor v. Akbar Ali (A I R 1936 Oudh 400) it was held " The rash and negligent act referred to in S. 304‑A and B S. 338 of the Penal Code means the act which is the immediate cause of death and not any act or omission which can at best be said to be a remote cause of death." . The learned Judges in that case held that the mere fact that the accused's lorry had no horn or had insufficient brakes cannot, in the circumstances of the case, be taken into consideration in convicting the accused under section 304‑A of the Penal Code. It appears to me that the decision of each case depends on its own facts. In some cases drivers going at a moderate speed may be found guilty of rash and negligent acts resulting in grievous hurt and death of the pedestrians. There may be other cases where drivers going at a high speed may not be found guilty of any negligence or rash act resulting in grievous hurt or death. The determining factor in such cases should be the amount and degree of negligence. If it is a case of high degree of negligence or the negligence is the direct cause of the accident, it will come within the purview of section 338, P. P. C. This case, however, is entirely of a different nature and I do not think that it will be safe to convict the applicant merely on the ground that the brakes were found in a defective condition. The evidence, on the contrary shows that this defect was not at all responsible for causing grievous hurt to the boy in question. The bus was brought under control immediately and saved the life of the boy. I will, therefore, allow this application and set aside the applicant's conviction under section 338, P. P. C. for the reasons given above. The application is allowed. The bail bond of the applicant is cancelled. K. B. A Conviction set aside.