1976 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)‑-- ‑‑ S. 439‑Offence under S. 304‑A, P. P. C.--‑Nothing on record to suggest recklessness or rashness on part of accused‑Accused given benefit of doubt‑Order of appellate Court based on sound reasoning and neither perverse nor illegal nor facts wrongly stated so as to warrant interference in revision--‑Petition dismissed.‑[Benefit of doubt‑Revision (criminal)]. Habibur Rehman Khan for Applicant. Manzoor Hussain for the State. Sadik Ali G. Khoja for Respondent No.

2. Date of hearing : 15th August 1974. Respondent No. 2 Hamid Ali Bhojani was tried by Sub‑Divisional Magistrate, New Town, Karachi for an offence under section 304‑A, P. P. C. for having caused death of one Riazuddin as a result of negligent driving of his car. He was convicted and sentenced to undergo rigorous imprison ment for four years and also to pay a fine of Rs. 5,000 or in default to suffer further R. I. for a period of one year. On appeal the Sessions Judge, Karachi reversed the judgment of conviction and found the respondent to be not guilty. Against his acquittal the wife of the deceased has moved this revision application.

2. The facts of the case in brief are that on 9‑7‑1970 at about 6‑30 or 7 p.m. respondent Hamid Ali Bhojani was coming driving his Volks Wagon car at a fast speed from Drigh Road side on the Karachi‑Hyderabad highway. Deceased Riazuddin was on the left hand side of the road holding his son aged about 5 or 6 years by one hand and the packet of sweets in the other hand. The said Riazuddin tried to cross the road along with the boy, unmindful of the moving traffic. When he was nearly on the middle of the road the car of the respondent came in contact with him on the front left hand side with the result that Riazuddin fell down on the ground and sustained a lacerated wound on the right side of his fore‑head. The respondent stopped his car about 20 or 25 paces from the point of impact and came back to the scene of accident. Riazuddin was removed to Jinnah Central Hospital where he was admitted as an indoor patient. He, however, expired on 17‑7‑1970 at 4‑30 a.m. due to respiratory failure as a result of the head injury. The respondent was sent up by the police for an offence under section 304‑A, P. P. C.

3. The respondent was convicted by the trial Court on the assumption that the deceased was still on the kutcha footpath by the side of the road when he was hit by the car which was being driven at a very fast speed of about 40 miles per hour. In the appellate judgment the learned Sessions Judge scrutinized the evidence and arrived at a conclusion that the impact occurred in the middle of the road while the deceased and his minor son were crossing it. This, finding of fact, finds support from the evidence of P. W. Shah Mohammad, another witness P. W. Zahiruddin has been contradicted with reference to his police statement that the deceased was lying in the centre of the road. The sketch of the scene of offence and mashirnama also show that there were stains of blood on the metalled road 6 paces from the kutcha. The accused had also explained in his statement under section 342, Cr. P. C. that he was driving at a normal speed of 20 or 25 miles per hour when one person namely Riazuddin came all of a sudden in front of his vehicle, wanting to cross the road alongwith his small child. The finding of the learned Sessions Judge that the deceased was crossing the road and impact took place on the centre of the road is thus quite consistent with the evidence. The learned Sessions Judge also found that the car could not have been driven at a very fast speed as alleged by some of the witnesses. The deceased had sustained only one head injury which could be the result of his fall on the hard metalled road and could not have been the direct result of the impact. If the car had been driven at a fast speed the impact would have resulted in multiple injuries to the deceased who may possibly have been run over by the car. It has also come in the evidence that there were no skid marks or tyre marks on the metalled road which would result from sudden application of the brakes when the car was being driven at a fast speed. On the other hand there is evidence that the car was stopped at 20 paces from the place of the accident. This would show that the car was not being driven at a reckless speed. In any case the speed of the car does not appear to be the direct cause of the accident. Nor does it constitute a rash and negligent act when there was no curve or obstruction on the open stretch of road to put the driver on guard for taking special precau tions. The respondent was driving his car at a moderate speed on the left hand side of the road and the accident might have taken place possibly because the deceased unexpectedly crossed the road in spite of the moving traffic and failed to see the car coming from Airport side possibly because his attention was diverted to his boy whom he was holding and helping to cross the road with him. It is true that the driver of a motor vehicle cannot plead in his defence the negligence of a pedestrian, but culpable, negligence on the part of the driver has to be proved. In this case them is hardly anything to suggest the recklessness or rashness on the part of the respondent. The respondent has accordingly been allowed benefit of doubt. The appellate order is based on sound reasoning and it is neither B perverse nor illegal nor have the facts been wrongly stated so as to warrant interference in revision. Mr. Manzoor Hussain appearing on behalf of the Advocate‑General does not support the revision application. Under the circumstances the appellate order of the learned Sessions Judge is maintained and the revision application is dismissed.