1968 P Cr (PLP)

(c) Penal Code (XLV of 1860)

S. 304‑A‑‑Rash and negligent act ‑Prosecution unable to establish case of rashness and negligence against accused and manner in which deceased met his death unreliable‑Defence version set up at earlier stage more plausible and reasonable in circumstances‑No justification for conviction of accused under S. 304‑A can be said to exist. Salima Nasiruddin for Appellant. Manzoor Hussain for the State. Dates of hearing : 14th and 15th February 1968. This revision application seeks to revise the order of the learned Sessions Judge, Karachi, dated 5th April 1966 by which he maintained the conviction of the applicant under section 304‑A, P. P. C. but reduced the sentence imposed by the learned S.D.M., Old Town Karachi of two years' R. I. and a fine of Rs. 500 in default further R. I. for two months to one year's R. I. and a fine of Rs. 250. It must be stated that in the course of the hearing of appeal filed by this applicant against his conviction by the learned S. D. M., Karachi the applicant and his counsel at the time signed a statement that they did not press their appeal on merits but only prayed for a reduction of the sentence on the ground that the applicant was a married man having several children was the sole supporter of his family, that he had been in custody for some days and that the accident had taken place about a year before the appeal was filed and he bad suffered mental agony. The applicant according to the learned Sessions Judge has thus "thrown himself at the feet of the Court and prayed for mercy" and that the learned Public Prosecutor at the time was agreeable to a reduction of the sentence in accordance with which the impugned order was passed. 2. When the matter was heard before me learned counsel for the State. Mr. Manzoor Hussain who incidentally was the State counsel before the learned Sessions Judge urged that the applicant‑appellant in view of his statement made before the learned Sessions Judge was bound by it and, therefore, this Court was precluded from allowing the counsel for the applicant to argue the case on merits and to only argue if possible on the aspect of the sentence imposed in consequence of his conviction. The first point, therefore, that arose for determination is whether in these circumstances this Court in its revisional power: should go into the facts of the case to see if there was a necessity for interference to prevent injustice. In Sarwar v. The State (P L D 1959 Lah. 50) considering whether an appeal filed beyond limitation can be treated as alt application for revision observed that‑‑‑ ? "The prohibition against revision contained in section 439 (5), Criminal Procedure Code is only in those cases where a party comes to the High Court on the revisional side without filing an appeal. The powers of the High Court under sections 435 and 439, Criminal Procedure Code are very wide and if any matter comes to their notice in which some illegality has been committed, the High Court has ample power to interfere under this provision of law to prevent injustice in spite of the fact that an appeal lies and has not been filed within limitation. In appropriate cases, the High Court is competent to treat an appeal filed beyond limitation to be an application for revision." The present case is distinguishable initially on the score 'that an appeal was filed and in spite of the statement made by the applicant before the First Appellate Court. I feel that this is one of those cases in which this Court in its revisional jurisdic?tion should probe into the evidence recorded to find whether the law has been vindicated and to prevent injustice. Reference has been made in P L D 1959 Lah. 50 to Pars Ram v. Emperor (A I R 1931 Lah. 145, at p. 148) where Tek Chand, J. observed that the power of the High Court to exercise revisional Jurisdiction under subsection (1) of section 439, Cr. P. C. in all cases namely those in which the records have been called for by itself or which have been reported to this Court for orders under section 438 or which otherwise come to its knowledge, was untouched and that High Courts have of their own motion set aside the convictions of persons convicted at one trial but who have not preferred appeal though they could have done so but in which the matter had come before the Court on appeal or revision filed by other convicts, if on examin?ing the records it was discovered that the lower Court had acted illegally on a point which affected all the convicts, equally and further that if the High Court is satisfied that a serious miscarriage of justice has taken place and after examining the record and in the circumstances required has exercised its power of revision under section 439, Cr. P. C. In Tejumal Hassomal v. Emperor (A I R 1932 Sind 211) the revisional powers of this High Court on this particular aspect have also been upheld. For these reasons I consider it necessary in the interest of justice that the merits of the case should be examined and assessed in accordance with law. 3. The prosecution case against the applicant was that on the 4th January 1965 at about 6 p.m. he was driving Bus No. K A P 8998 at a fast speed along the Napier Road heading towards the Lea Market where at a traffic island he took a sharp turn into the Herchandrai Road and that when he did so the front wheels of the bus struck the deceased Muhammad Bashir who was crossing Herchandrai Road at the time. The bus felled this Bashir and its rear wheels ran over him causing injuries which Dr. Anwarul Hassan Police Surgeon at the post‑mortem examination described as multiple abrasions, fractures on the arm, chest and the face which resulted in his death which was due to being run over by a heavy vehicle. The defence of the appellant in the trial Court was that he did in fact drive the bus on Napier Road and had turned into the Herchandral Road when his attention was drawn by a passenger to a person who had been trying to board had fallen and had been run over by the rear wheels of his bus. He stopped the vehicle and reported the matter to the police. The implication of the applicant resulting in his conviction rested on the testimony of three prosecution witnesses namely Akram P. W. 2, Gul Zamir a taxi‑driver P. W. 6 and Traffic Constable Abdul Malik P. W. 5. Akram in his evidence stated that he was in front of Irani Hotel near Lea Market when he saw the applicant's bus heading towards Chakiwara driven at a fast speed when this bus took a sharp turn in the direction of the Napier Police Station which is situated at the end of Herehandrai Road and a man crossing the road was struck by the left front mudguard of the bus and then run over by it. He states that the bus stopped about fifteen paces from the place of the accident. Gul Zamir's evidence was to the same effect namely that the deceased was crossing Herchandrai Road when the applicant's bus at a fast speed had taken a sharp turn into the Herchandrai Road and struck him down. He has stated that there were passengers in the bus and the accident took place immediately after the bus had taken turn into the Herchandrai Road. Abdul Malik Constable was on traffic duty and saw the applicant's bus taking a sharp turn at a fast speed knocking down the deceased and running over him. He blew his whistle and the bus stopped. 3. In defence two witnesses were examined namely Husain conductor of the bus driven by the applicant and Mr. Shaikh Mumtaz Illahi Pleader practising in Karachi. Both of those witnesses have supported the defence plea that the deceased was attempting to enter the ladies compartment of the bus, entrance to which, is bad by a separate door in front of the bus, that the ladies objected to the deceased attempting to enter their com?partment and that the deceased was holding some articles in his right hand and at the same time attempting to cling to the handle of the bus by his left hand, that at that time the bus had taken a turn and thus the deceased lost his balance and fell down and was seen lying between the rear wheels. Husain in cross‑exami?nation has stated that there were about 14 ladies passengers in the bus of whom about 5 were sitting and 9 standing and there were about 36 male passengers sitting and 40 male passengers standing. Thus there were in all 75 or 80 passengers and the seating capacity of the whole bus was 42 seats. Shaikh Mumtaz Ilahi stated that he was near the Lea Market and saw the bus driven by the applicant from Napier Road Den and turning towards the Herchandrai Road when he saw the deceased getting into the ladies compartment and was clinging to the lower handle of the ladies entrance at the same time running with the bus and that while attempting to get into the bus the man lost his grip and fell down headlong rolling ever under the rear wheels of the bus. It may be noted that Mr. Wali Muhammad the Motor Mobiles Inspector inspected the applicant's bus on the day of the accident and found no mechanical defect in it no except that the hand‑brake was out of order, that there was no damage done to the vehicle and that the blood‑stained marks were visible on the left side rear wheel of the bus. He did not see any mark or dent in the front of the bus. In the context of this aspect it is to be assessed whether there was sufficient evidence of rashness or negligence on the part of the applicant in driving the bus. The mere fact that three prosecution witnesses stated that the bus was being driven by the applicant at a very fast speed without giving particulars would not necessarily indicate that the bus was in fact being driven at a fast speed for we have no indication what was the approximate actual speed of the bus. It is also to be observed in the context of the sketch of the scene which is at page 39 of the Sessions Court Record (Exh. 7‑B) in that Court, that if the bus was driven on Napier Road and had turned into Herchandrai Road, it had to pass a traffic island or what has been described as a square in the sketch. It is difficult to believe that a heavy vehicle containing at least 40 or 50 passengers would be able to take such a sharp turn off a traffic island into a sharp turning at a fast speed. Reliance has been placed by the learned counsel for the applicant on Muhammad Yaqub v. The State (P L D 1959 Kar. 30) where Abdul Hamid, J. in considering a case under section 304‑A against the driver of an ambulance car the hand‑brake of which was completely unserviceable but the foot‑brake was in working condition, held that a conviction under section 304‑A, P. P. C. requires that some rash or negligent act on the part of the accused must be conclu?sively established by direct evidence and that if the hand‑brake is defective that has no effect on speed and if there was a defect in the foot‑brake that defect only pulled the car to the left when the brake was put to work and thus that defect in the brake of the car would not by itself constitute the driving of the car as a rash or negligent act. Further, that it must be established by evidence that at the time of the accident the driver was driving the car set at an uncontrollable speed and was guilty of rash or negligent act. Therefore, bearing in mind the weight of the vehicle, its length and the passengers contained in the bus and the sharp turning that, according to the sketch, the bus must have taken to enter into the Herchandrai Road, it is difficult to believe that it was being run at a fast or indeed an uncontrollable speed. The learned trial Magistrate has accepted the evidence of the three prosecution witnesses already referred to as correct and based the conviction of the accused thereon. On the other hand, he has discarded the defence evidence for what in my view are flimsy reasons and there is little justification for the observation that the sum‑total of the evidence of Akram, Abdul Malik and Gul Zamir establishes the belief that It was the accused's rash driving of the bus which caused the accident. It is true that great caution must be expected from a driver specially when he was driving in a busy market place like the Lea Market but what has to be taken into consideration additionally is if it was possible to drive such a vehicle at an uncontrolled or fast speed in the circumstances which are plain on the prosecution evidence adduced and the sketch of the scene. It cannot, therefore, be held without reservation that the act of the applicant was reckless or indifferent to the consequences. On the other hand, the evidence of the defence witnesses as to the manner in which the deceased met his death appears to be more plausible and likely in the circumstances. Indeed I am impressed by the fact that Mr. Shaikh Mumtaz Illahi D. W. 2 a practising pleader of Karachi has given evidence which cannot be lightly cast aside. He is an entirely disinterested witness and appears to be a civic-?minded citizen. He states as earlier given the details of the manner in which the deceased was attempting to enter the bus and then to hold, on to the handle of the entrance to the ladies side of the bus and it was whilst he was doing so that the bus had taken a turn when he lost his balance and was thus thrown out on to the road and as the vehicle was taking a turn at the time the deceased was crushed by its rear wheels. The bona fides of Mr. Mumtaz Illahi are further established by the fact that he went up to the police and reported to the Sub‑Inspector about the accident and also that he was prepared to give a statement in that connection, that this desire on his part was not acceded to by the Sub‑Inspector, that he returned to the scene at about 10‑30 p.m. only four hours after the accident and gave a chit to the conductor giving his name and address. The fact that this chit was not produced by the conductor is not of very much consequence but what is important is that the evidence of Husain the bus conductor substantially corroborates the evidence of Mumtaz Illahi. The learned trial Magistrate disbelieved Mumtaz Illahi's evidence merely because the Court could not understand how he found it necessary to take such a great deal of interest in the accused and that there was conflict between his evidence and that of the bus conductor and lastly because there was a certain amount of contradiction in the evidence of Mumtaz Illahi and quaint as to the apparel the deceased was wearing at the time of the accident. Whether the deceased was wearing a Pyjama or a Shalwar is of little consequence in assessing general veracity. I am of the firm view, that Mumtaz Illahi's evidence has been wrongly discarded by the trial Court. His evidence supported as it is on the main factors of the case by Muhammad Husain is more likely and plausible as to the manner in which the deceased unfortunately met his death. Besides the additional circumstance is as indicated by the evidence of the Motor Vehicles Inspector and bearing in mind the prosecution case that there was no blood mark on the front wheels of the bus nor in the front‑mudguard of the bus. 4. For the reasons that the prosecution has been unable to establish the case of rashness and negligence against the applicant and that the manner in which the prosecution alleged the deceased met his death is unreliable whilst the version given by the defence is more plausible and reasonable in the circum?stances and further that this defence was the one that has been set up by the applicant at the earlier stage, it cannot be stated that there was justification for the conviction of the applicant under section 304‑A, P. P. C. and the sentence imposed in consequence. For ‑‑these reasons the conviction of the applicant cannot, therefore, be maintained. I, therefore, accept the revision, and set aside the conviction of the applicant under section 304‑A, P. P. C. The applicant is on bait. His bail bonds are cancelled and be is forthwith set at liberty unless wanted in any other case. Petition accepted.