1969 P Cr (PLP)

3. In his defence, in both the Courts, the appellant has admitted that he was driving the car which hit and killed Thaver deceased. But he has denied negligence, and has said that he was driving the car at a reasonable speed, near the place of occurrence, because a bus was standing there. He further said that the deceased came out suddenly in front of the bus, therefore he could not avoid hitting the deceased, who was knocked down and killed. In support of his defence he examined D. W. Manzoor‑ul‑Haque. Administrative Manager of the Company in which he was employed.

4. As the appellant has admitted that the car driven by him knocked down the deceased thereby causing his death, the only question for consideration in this appeal is whether the appellant was driving his car in a manner which amounted to a rash and negligent act and which caused the death of Thaver deceased.

5. In support of its case, as I have observed, the prosecution examined P. W. Muhammad Zaman, Rasool Khan, Gul Muhammad and Abdul Azim. Muhammad Zaman owns a hotel near the place of occurrence. He said in evidence that on the day of the occurrence, he bad alighted from a bus to go to his hotel, and was going to cross the road (Drigh Road) when he saw the appellant's car approach and hit the deceased. The deceased was thrown on the bonnet of the car by the impact, the car then swerved back into the main road carrying the deceased on its bounet, after which the deceased fell off, and was dragged by the car and died instantaneously. He further said that the deceased was working on the katcha portion at the edge of the road when the accident occurred, and that skid marks of the car as well as blood‑stains were visible on the katcha portion of the road. He also said that at the time of the occurrence the appellant was talking and looking back towards a passenger in the back seat of the car and that the ,speed of the car at that time must have been about 50 miles per hour. P. Ws. Rasool Khan, Gut Mohd. and Abdul Azim have also said in their evidence that the deceased was struck whilst lip; was on the katcha portion of the road and that the appellant was looking backwards and driving very fast or at a speed of 50 to 60 miles per hour at the time of the accident.

6. The learned Additional Sessions Judge has rejected the plea of the appellant and accepted the ocular evidence as reliable despite discrepancies in the prosecution evidence, which he has treated as immaterial. He has therefore held that the deceased was first hit on the katcha portion of the road and that the appellant was looking backwards and driving very fast at the time of the accident. Hence the conviction. Learned counsel for the appellant has argued that the learned Additional Sessions Judge has erred in treating the discrepancies in the prosecution evidence as immaterial, and he has submitted that the evidence fails to establish any negligence against the appellant. I shall therefore consider the question whether there are any discrepancies in the prosecution evidence.

7. As the appellant's plea was that the deceased suddenly came out in front of a bus, the question whether a bus was parked at the scene of the offence is relevant. P. W. Gut Muhammad and Abdul Azim said that there was no bus on the road at the time of the accident. On the other hand, P. W. Muhammad Zaman said that he had alighted from a bus to cross the road and the occurrence took place immediately thereafter, but that the bus had driven away before the accident. Finally, P. W. Rasool Khan said that a bus was parked on the road when the accident took place.

8. Learned counsel next pointed out that whilst P. ‑W. Muhammad Zaman said that the deceased was working on the katcha portion of the road at the time of the accident the other eye‑witnesses had said that the deceased was waiting to cross the road. This discrepancy is not materiel, but the question whether the deceased was on the katcha portion of the road when he was hit by the appellant's car is important, because if this allegation is true, by itself it is an important piece of evidence to prove that the appellant was negligent. If the deceased was hit on the katcha portion of the road it is obvious that there would be wheel marks or brake marks on the katcha portion and perhaps blood‑stains also, therefore all the four eye‑witnesses have said that wheel marks were visible on the katcha portion of the road, that these marks had been seen by the Police who came for investigation immediately after the occurrence, and P. Ws. Muhammad Zaman, and Gut Muhammad have even said that these were blood spots on the katcha portion of the road. However, the mashirnama which was witnessed by two of these eye‑witnesses, namely, P. Ws. Muhammad Zaman and Rasool Khan, does not refer to any wheel marks or brake marks on the katcha portion of the road nor does it show any blood spots on the katcha portion of he road. In view of this discrepancy in the prosecution evidence, P.W. Nasim Hussain, who prepared the mashirnama and investigated the offence, has been examined about the wheel marks and the blood spots. In his evidence P. W. Nasim Hussain has said: "I did not mention in the mashirnama Exh. 3 that, there were any wheel marks or blood spots in the katcha where Thaver is said to have been standing at the time of the impact. I did not find any skid marks on the road, and, therefore, there was no question of measuring the length of skid marks." Again whilst P. W. Gut Muhammad claimed to have shown the wheel marks and the blood marks to P. W. Nasim Hussain, P. W. Nasim Hussain has said "P. W. Gul Muhammad did not show me any wheel marks or blood marks in the katcha, nor did P. W. Abdul Azeem point out to me any skid marks." This discrepancy in the prosecution case is material and in view of the same I hold that the prosecution has failed to prove that the deceased was hit whilst he was sitting or standing on the katcha portion of the road. According to the mashirnama of the vardat. (Exh. 3) the body of the deceased was lying on the main road, there is no reason to believe that the mashirnama is not correct, therefore this means that the deceased was hit by the car driven by the appellant whilst he was trying to cross the road.

9. The second allegation against the appellant which has been accepted by the trial Court is that he was looking backwards and talking to the passenger in the back seat at the time of the accident. This allegation has obviously been made with a view to support the prosecution case that the deceased was hit by the car whilst he was on the katcha portion of the road. Whilst all the prosecution witnesses except P. W. Rasool Khan have said that they saw the appellant look backwards at the time of the accident, according to P. W. Nasim Hussain, none of the eye‑witnesses had informed him that the appellant was looking backwards at the time of the accident. Not only that, but in respect of the evidence of P. W. Rasool Khan, P. W. Nasim Hussain has said: "Rasool Khan did not state before me that a car came and dashed against Thaver who was standing in the katcha Rasool Khan has stated before me that he suddenly heard the sound of a car striking against something he then looked in that direction and saw a Labourer whose name subsequently transpired to be Thaver lying on the car." This is completely discrepant with P. W. Rasool Khan's statement that he had seen the entire occurrence similarly in his cross‑examination P. W. Gut Muhammad has also made an admission which does not inspire confidence. When he was cross‑examined about occurrence P. W. Gul Muhammad said: "The dead body of Thaver was lying about 10 or 15 paces away from the katcha. At that time I was not in my proper senses. Therefore I cannot describe the distances correctly." In the circumstances discussed, it would not be safe in my opinion to accept the ocular evidence that the appellant was looking backward; at the time of the accident, the more so as the claim of the eye‑witnesses that the deceased was hit whilst he was on the katcha portion of the road is obviously not correct.

10. The only other allegation against the appellant is that he was driving very fast. Here I have to observe that there is no discrepancy in the evidence of the eye‑witnesses P. Ws. Gul Mohammad and Abdul Azim have said that the appellant vas driving fast, whilst P. Ws. Rasool Khan and M. Zaman have said that he was driving at a speed of 50 or 60 miles per hour. However, no expert evidence has been produced to prove the speed at which the appellant was driving at the time of the accident. On the other hand, P. W. Muhammad Zaman is a hotel keeper, P. W. Rasool Khan is a petrol pump attendant whilst P. Ws. Abdul Zaman and Gul Muhammad are Labourers. Bearing in mind the fact that they have exaggerated the occurrence I cannot place reliance on their estimate of the speed at which the appellant was driving. At the highest the evidence may lead to the conclusion that the appellant was driving fast at the time of the accident, but by itself this will not amount to a ,t rash or negligent act within the meaning of section 304‑A, P. P. C. P. W. Hanif Muhammad Khan, a Motor Vehicles Expert, examined by the prosecution has said in his evidence that he had examined the car driven by the appellant within a couple of hours of the accident and that it was mechanically fit and that the brakes were in working order. Again both P. W. Muhammad Zaman and P. W. Nasim Hussain, the investigating Officer, have said in their evidence that there was not much traffic on the road at the time of the accident. Assuming therefore for the sake of argument that the appellant was driving fast at the time of the accident, in the circumstances discussed, this by itself will not constitute a rash or negligent act.

11. In the result, the prosecution have failed to prove beyond reasonable doubt that the death of Thaver deceased was caused by a rash or negligent act on the part of the appellant. The appeal is therefore allowed and the conviction and sentence of the appellant are set aside, and the bail bond executed by him will he cancelled. Appeal allowed.