P L D 1982 Lahore 171 (PLP)

Javaid Jan was tried by a section 30 Magistrate of Lahore under section 304/338/279, P. P. C. for the death of Mohammad Azam deceased and injuries to Mst. Tasneem and Mst. Shahida Fakhar through his rash and negligent driving and for driving rashly on a public way. The trial Magistrate, by his judgment dated 29-9-1980, convicted Javaid Jan under the said three sections and sentenced him under section 304, P. P. C. to seven years' R. I. with fine of Rs. 2,000 or in default thereof to further undergo one year R. 1. under section 338, P. P. C. to two years' R. I. with fine of Rs. 1,000 or in default thereof to further undergo six months' R. 1. and under section 279, P. P. C. to one year R.

1. The appeal of Javaid Jan, convict, is now before me for disposal.

2. The brief facts of the case are that on 10-11-1978 at about 8 a.m. Mst. Tasneem P. W. 1, with Shahida Fakhar and her two year old son, was proceeding in a Rickshaw No. LET 9172 on Durand Road in the direction of Shimla Hill crossing. All of a sudden, a jeep bearing No. M Y 7620 driven by Javaid Jan accused rashly and negligently came and struck the rickshaw, which was proceeding on the left side of the road, with the result that not only the rickshaw toppled over injuring Mst. Tasneem P. W. 1 and Mst. Shahida Fakhar (given up P. W.), but hit Mohammad Azzm a passerby, causing his death. After the accident, the passersby caught Javaid Jan, accused., The deceased and the injured were taken to the Hospital. At 9-05 p.m. Ghulam Qasim; A. S.

1. P. W. 6 recorded the statement Exh. P. A. of Mst. Tasneem P. W. 1 at the Ganga Ram Hospital. The accused was arrested the same day and his Jeep bearing No. M Y 7620 and the damaged rickshaw L E T 9172 were both taken into custody by the Police.

3. The learned trial Judge convicted Javaid Jars, accused, on the basis of the testimony of the eye-witnesses, namely, Me. Tasneem P. W. 1, Mazammal Pervaiz P. W. 2, Mohammad Saleem P. W. 3 and Mohammad Iyaz Hashrri`i P. W. 4, supported by the medioal testimony furnished by Dr. Sabir Ali P. W. 5 and Mushtaq Ahmad, Record Keeper, Ganga Ram Hospital P. W. 9, who proved the post-mortem report of the deceased and the medico-legal reports of the injured witnesses, and the testimony of Ghulam Qasim, A. S. I. P. W. 6, Mohammad Naeem, A. S. I. P. W. 7 and llyas P. W. 8 with regard to the investigation conducted by the Police in the case.

4. I have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. With the assistance of the learned counsel for the appellant, the evidence has been read. From the testimony of the eye-witnesses, it is clear that Mst. Tasneem P. W. 1, with her daughter-in-law, Mst. Shahida Fakhar, and her minor grandson, was proceeding in Rickshaw No. LET 9172 on the Durand Road in, the direction of Shimla Hill crossing. The rickshaw was ,on the left side of the road. Since Mst. Tasneem P. W. 1 was a heart patient, the rickshaw was proceeding at a slow pace. A Jeep bearing No. MY 76ZQ rashly and negligently driven by Javaid Jan, appellant, came and struck the rickshaw in which the two ladies and the minor child were travelling. The rickshaw was struck when it was proceeding on its own proper side of the road. According to the testimony of all the eye-witnesses, the jeep was coming at a very fast speed and struck the rickshaw when it was on its proper side of the road. This shows that the jeep was being driven on the wrong side of the road. Due to the rash and negligent driving of the appellant, the jeep first hit the rickshaw, in which the two ladies and the minor were travelling and thereafter hit Mohammad Azam, a passerby, who subsequently died. Mohammad Azam, deceased, was proceeding along the road with his two nephews, namely, Mazammal Pervaiz P. W. 2 and Mohmmad Saleem P. W.

3. Nothing has been brought out in the cross-examination of these eye-witnesses to show that the appellant was not driving the jeep rashly and negligently. The accident occurred on an open road. Had the appellant not been driving rashly and negligently, he would have steered clear of the rickshaw. According to the consistent testimony of the above eye-witnesses, the jeep was being rashly and negligently driven and according to the testimony of the Investigating Officer, the appellant was drunk at that time. In these circumstances, the appellant was culpably liable for the accident in question which caused the death of Mohammad Azam, deceased, and grievous injuries to Mst. Tasneem P. W. 1 and Mst. Shahida Fakhar (given up P. W.). It is contended that as the death of Mohammad Azam, deceased, took place after the jeep had struck the rickshaw and the appellant lost control over the jeep and the said death could not be avoided, as it occurred due to an Act of God or an inevitable accident, the appellant is not liable under section 304-A, P. P. C. This contention must be rejected, for whoever is guilty of a rash and negligent act, is not only liable for any death or injury to a person or persons which may initially result from the same, but for any death or injury to a person or persons which may follow thereafter in a series and are interlinked to his initial rash and negligent act. Thus, A where a person by his rash and negligent driving first strikes his vehicle with another, injuring the passengers in the other vehicle, and then losing control over the jeep, hits another vehicle or vehicles or person or persons, he is liable for all offences which arise out of the chain reaction that follows as a result of his rash and negligent act. For the purpose of imposing sentence, the considerations may perhaps be different, but for the purposes of determining culpability, the position admits of no exception. In these circumstances, the appellant was culpably liable for his rash and negligent act which caused the death of Mohammad Azam, deceased and grievous injuries to Mst. Tasneem P. W. 1 and Mst. Shahida Fakhar (given up P. W.).

5. The only question that now remains to be determined is that relating to the offences committed by the appellant. Section 304-A, P. P. C. specifically covers a case where death is caused by any rash and negligent act of a person, which otherwise does not amount to culpable homicide. This is I the proper section applicable in the instant case. The appellant's conviction under section 304, P. P. C. is wrong and is hereby altered to that under section 304-A, P. P. C. The conviction of the appellant under section 338, P. P. C. with respect to grievous injuries caused to Mst. Tasneem P. W. 1 and Mst. Shahida Fakhar (given up P. W.) as a result of his rash and negligent act, is correct and must be upheld. Since the appellant has been convicted under section 338, P. P. C. there is no need for any conviction under section 279,1 P. P. C., which conviction is set aside.

6. Since the appellant has been found guilty under section 304-A, P. P. C. for the death of Mohammad Azam, deceased, the sentence to be imposed upon him in this connection requires consideration. It cannot be forgotten that initially the appellant's jeep struck against the complainant's rickshaw, toppling it over, and then having got out of control, struck against Muhammad Azam, deceased, injuring him seriously as a result of which he died. The latter incident was accidental and not out of reach or control of the appellant. The jeep having hit the rickshaw, the appellant very likely lost control over it and in a few split seconds the jeep went and hit Mohammad Azam, who was a passerby on the road. It cannot be denied that at this stage the appellant could not have been able to fully and effectively control his jeep, however, well he may have tried to control the situation as a reasonable and prudent man would have attempted in' the circumstances. In these circumstances, for the purposes of sentence under section 304‑A, P. P. C. a reasonable view should be taken. This is a case where the offence took place on 10‑11‑1978 when the amendment to section 304‑A, P. P. C. increasing the maximum sentence then in force was four years' rigorous imprisonment. The appellant has undergone approximately fifteen months' detention both as an under‑trial prisoner and as a convict. This period is equivalent to sentence undergone by a convict convicted to twenty months' imprisonment, less remissions etc., earned. In these circumstances, the detention undergone by the appellant should meet the ends of justice. The appellant is, therefore, sentenced under section 304‑A, P. P. C. to the period of detention already undergone together with a fine of rupees One Thousand (Rs. 1,000) or in default of payment of fine to undergone further rigorous imprisonment for one year. Fine, if recovered, shall be paid to the heirs of Mohammad Azam, deceased, as compensation. The appellant is sentenced under section 338, P. P. C. on two counts to the periods of detention already undergone on both the counts, together with fine of Rupees Five Hundred (Rs. 500) on each of the two counts or in default thereof to further undergo six months' rigorous imprisonment on each count. The fines, if recovered, shall be paid to the two injured ladies in equal shares. The sentences of the appellant shall run concurrently. The sentence of the appellant imposed under section 279, P. P. C. is set aside.

7. This appeal, therefore, stands partly accepted in terms of alteration of conviction and reduction in sentences, as stated above. Subject to the appellant depositing the fine of rupees One Thousand (Rs. 1,000) imposed on him under section 304‑A, P. P. C. and rupees Five Hundred (Rs. 500) imposed on him under section 338, P. P. C. on each of the two counts, he shall be released forthwith, if not required in any other case. If the said fine is not paid, the appellant shall be detained to serve out the periods of his sentences imposed in default of payment of fine. s. Q. Order accordingly.