1984 P Cr (PLP)

5. When examined under section 342, Cr.P.C. the appellant entirely denied the prosecution case and professed innocence. He did not lead evidence in his defence either.

6. Rasool Bakhsh (P.W.2) almost gave the same version, he had narrated in the F.I.R. In cross-examination, he stated. that Hafiz Dalel Khan, his maternal-uncle, was a very careful person and after every short interval he used to instruct his driver, Muhammad lqbal (deceased) to drive at slow speed. He saw the bus coming from the front side for the first time, when it was only 5/7 Karams away from the car coming to the middle of the road and collided with their car. He denied that their car was also to the middle of the road at that time. He admitted that Muhammad Amin, Nazir Ahmad and Ilam Din P.Ws. reached the spot from a brick kiln which was only 8/10 Karams away from the scene.

7. Muhammad Amin (P.W.3) and Nazir Ahmad (P.W.2) stated that the appellant was not driving his bus rashly and negligently. According to them, they were present at their brick kiln at the time of occurrence and they saw that a white Toyota car (in which Rasool Bakhsh and the two deceased persons were travelling) was trying to overtake a bus going ahead of it. In that attempt it went out of control of its driver and collided with the bus of the appellant coming from the oppsite direction. They laid entire blame on the shoulders of the car-driver. 'It is to be noted that these eye-witnesses, though did not support the prosecution, were neither got declared hostile nor the prosecutor cross-examined them and their statements remained unchallenged. The Investigating Officer admitted that when he reached the spot he found both the vehicles standing in their original position after the accident, and within 15 to 20 minutes of his arrival he got them photographed.

8. While considering the material on record, the learned Magistrate observed that excepting Rasool Bakhsh (P.W.2) the other eye-witnesses had not seen the occurrence. Relying on the evidence of Rasool Bakhsh he concluded that the appellant was grossly negligent in driving the bus which banged into the car resulting in the death of two persons and injuries to the third. The appellant was thus held guilty under section 304, P.P.C., for the reasons summed up in para. 11 of his judgment, which reads as under:- "The material question left to be resolved in this case is as to whether this is a case under section 304, P.P.C. or that of section 304-A, P.P.C. A bus driver is a custodian of about 40/50 passengers and has the knowledge that his rashness and negligent act can endanger the innocent lives. He, therefore, is expected to be careful and is not required to exhibit acrobatic acts to the passengers. He is required to be more careful at G.T. road which is the busiest road of the country. In this particular case, the rashness can be well imagined-from the damage caused according to which 2 persons were killed on the spot and the car was totally smashed. The record also shows that he had no driving licence and in that case it becomes more evident that he was not competent to drive the bus. Thus, the provisions of section 304, P.P.C. are clearly attracted in the circumstances of the case."

9. I have heard the learned counsel for the parties and also perused the record.

10. At the outset I may express that the conviction of the appellant is not sustainable on facts as well as on law for variety of reasons enumerated hereunder.

11. In the first place, the charge framed against the appellant contains the substance which particularly has reference to the language of section 304-A , P . P . C . although the number of section noted on the charge is 304, P.P.C. The English rendering of the charge for facility of reference is reproduced beloved:- "I, Rai Muhammad Amin Khan, Magistrate Section 30, Sahiwal, do hereby charge you, Muhammad Sadiq, accused, as follows:- That you on 24th June, 1980 at morning time in the vicinity of Chak No.135-N /9-L while driving Lorry No.7596/LEV at high speed and in a rash and negligent manner banged it into Car No.4545/VR as a result whereof Hafiz Dalel Khan and Muhammad lqbal died on the spot and Rasool Bakhsh suffered grievous injuries (factually wrong) which amounts to committing cuplable homicide not amounting to murder and thereby committed as offence punishable under section 304, P.P.C. and within my cognizance. (Sd.) 22-9-1980, Magistrate Section 30, Sahiwal."

12. From the language of the charge quoted above, the appellant was obviously given notice that he was being tried for "rash and negligent) driving which resulted in the death of two persons and injuries to the third" which clearly falls within the mischief of section 304-A and not 304; P.P.C. for the simple reason that "rash or negligent act" is not and essential ingredient of an offence under section 3,04, P.P.C. Rather it talks of "acts of killing done with intention to kill or to inflict bodily injury likely to cause death or with the knowledge that the same must be its most probable result". Rashness involves insufficient advertence or complete inadvertence and negligence means failure to take proper care and caution while doing an act, therefore, such acts cannot be said to have been done with particular intention or knowledge. Thus, "death" occurring as a result of "rash and negligent act" is not covered by the exceptions of section 300, P.P.C. and cannot, therefore, be termed as "culpable homicide not amounting to murder".

13. The learned Magistrate having used the language of section 304-A, P.P.C. in the charge has erred in law by convicting the appellant, under) section 304, P.P.C. which is not permissible under law as the latter offence is graver than the former.

14. The next question is whether the appellant can be held guilty under section 304-A, P.P.C. on the basis of the evidence available on record. As stated earlier, out of the three independent witnesses one has resiled and the other two, namely, Muhammad Amin (P.W.3) and Nazir Ahmad (P.W.4) did not support the prosecution case. They, in fact, have blamed Muhammad lqbal (deceased) driver of the ill-fated car for the tragic accident.

15. We have solitary evidence of Rasool Bakhsh P.W. who stated that the appellant was driving his bus rashly and negligently, as a result of which the accident had taken place. Let us see if his evidence inspires confidence. Admittedly, Rasool Bakhsh P.W. is the sister's son of Hafiz Dalel Khan, one of the victims of the accident and, therefore, he is to some extent an interested witness. It may be observed that driving at a fast speed does not necessarily imply rashness or negligence because on a clear road driving at a very high speed may not be called rash or negligent driving but at the same time driving at 20 miles per hour on a road passing through a locality where children are normally found playing, would certainly be regarded as rash and negligent driving. According to Rasool Bakhsh P.W. when he first saw the bus it was only 5/7 Karams away from the car, coming from the front side in the middle of the road. If it was so, then the driver of the car could/should have taken his car to the left to avert the collision. It is not the prosecution case that the appellant's bus chased the car by going on the wrong side and collided with car. Rasool Bakhsh did not tell us the reason why he could not see the bus earlier. He did not say that he was dosing at that time or there was sharp turn of the road obstructing the view or that due to fog, mist and dust he could not see beyond 7/8 Karams. The story given by the other eye-witnesses that the collision had taken place when the car was trying to overtake the bus running ahead of it has impressed me. Muhammad Iqbal (deceased) driver of the car, was a rash driver by temperament. It is in evidence that he was frequently checked during the journey by Dalel Khan and instructed him to slow down. It appears that he was driving at a very high speed and in that momentum he suddenly went on his right to overtake the bus going ahead of his car when the appellant's bus appeared in the front coming from opposite side. In that situation it became impossible for him to pull on his left side as that side was already blocked by the vehicle, he was trying to overtake and, therefore, the car ran straight into the bus of the appellant. The evidence of Rasool Bakhsh in my view, therefore, renders strength to the story given by Muhammad Amin and Nazir Ahmad, P.Ws.

16. In these circumstances, I am left in no manner of doubt that the collision took place due to sheer rashness and negligence on the part of Muhammad lqbal (deceased), the car driver, and not of the appellant. For the said reasons both charges under sections 304-A and 337, P.P.C. against the appellant, therefore, fail. This appeal is allowed, the convic tions and sentences of the appellant are set aside and the appellant is acquitted. He is directed to be released forthwith, if not wanted in any other case. S.G.D. Appeal allowed