P L D 1985 Lahore 529_ (PLP)

(c) Penal Code (XLV of 1860)

S. 304-A-Sentence, held, is a part of substantive law and does not fall under procedural law.-[Sentence]. Ch. Muhammad Rashid for Appellant. M. Islam for A.-G. for the State. Dates of hearing : 17th and 24th April, 1985. JUDGMENT Altaf Hussain (35) bus driver, was tried for the murder of Ghularn Rasool. On 5-5-1983, Additional Sessions Judge, Toba Tek Singh, found him guilty under section 304-A, P. P. C. and sentenced him to 7 years' R. I. with a fine of Rs. 2,000 in default to undergo 6 months R. I. Fine if recovered was ordered to be paid as compensation to the heirs of the deceased. The convict has come up in appeal. 2. In the afternoon at 1-15 p. m. on 21-7-1979 Altaf Hussain was Driving Bus No. LEG-4097 of Sabir Goods Transport. As he reached near the crossing of Police Station, Kamalia, he struck against Ghulam Rasool. His bus ran over him. The driver stopped the bus at some distance and thereafter he fled away. Ghulam Rasool died at the spot. Besides, P. W. 6 Muhammad Siddiq informant, the occurrence was witnessed by Muhammad Ashraf and Ahmad Ali. P. W. 6 Muhammad Siddiq went to Police Post, Kamalia, where he made the report Exh. P.F. on the basis of which case was registered at - Police Station, Kamalia, the same day. P. W. 18 Muhammad Bashir A. S. I. went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination. He took into possession Bus No. LEG-4097. 3. P. W. 15 Dr. Ghulam Ahmad, Medical Officer, Civil Hospital, Kamalia, held the autopsy on the dead body of Ghulam Rasool at 3.30 p. m the same day and found five injuries on it. In his opinion, Ghulam Rasool died of shock and haemorrhage due to injuries to brain, skull and chest, which were sufficient to cause death in the ordinary course of nature. On 21-7-1979 Sajjad Hussain Kharal, produced the accused before the Investigating Officer. 'On the following day, he got the bus examined through Fateh Muhammad, Mechanic, whose report is Exh. P. A. The owner of the bus P. W. Muhammad Ismail produced the relevant papers of the bus before the Investigating Officer. After completing the investigation, the accused was tried in due course. 4. It may be mentioned at the outset that the prosecution tried to make out a case of intentional killing but had failed. The trial Court had rightly taken note of it and came to the conclusion that the offence was nothing more than the one under section 304-A, P. P. C. In this regard, it may be mentioned that in the F. I. R. which was made after the occurrence, Muhammad Siddiq, informant, clearly stated that the occurrence took place due to rash and negligent act of the appellant. It did not contain any motive which was later put up by P. W. 5 Muhammad Akram that the accident was intentionally caused due to professional rivalry and the appellant deliberately struck his vehicle against the deceased who was standing near the bus stand. 5. The appellant's case is that he was not the driver of the involved bus. He stated that it was one Talib who was driving the bus. No doubt Sajjad Hussain Kharal who had produced the appellant before the police was not produced by the prosecution but this would not help the defence because according to the eye-witnesses they had seen the appellant driving the vehicle. Much reliance was placed on the statement of 'P. W. 7 Ahmad Ali who at first in the examination-in-chief said that Talib Hussain struck the deceased but in the same breath, he corrected himself and named Altaf Hussain as the accused. It appears that at first, he inadvertently mentioned the name of Talib Hussain instead of the accused. However, under cross-examination, he said that he did not remember as to who suggested accused 's name to him. Since the appellant fled away from the place of occurrence, it appears that he is taking advantage of this by putting up names of others as the driver of the bus which was involved in the accident. The identity of the appellant is fully established by the owner of the bus and the eyewitnesses. On the other hand, the appellant led no evidence to show that he was elsewhere at the time of occurrence. In fact the appellant has produced no evidence in his defence. 6. It was next contended that there is- no evidence to show that the appellant was driving rashly and negligently. It is abundantly clear from the report of the Mechanic that there was no mechanical defect. Steering, Foot brake and Tie-rod were in order. According to the Mechanic, the hand brake was not in order. Hand brake is only applied when the vehicle is parked or when the foot brake suddenly runs out of order. According to the Mechanic's report, the foot brakes were in order. The case is overwhelming, against the appellant. There is no ground for interfering with the conviction. 7. In so far as the sentence is concerned, the occurrence took place on 21-7-1979 on which date, the offence under section 304-A P. P. C. carried a sentence of four years and fine. It was later on 3rd February, 1980, that Criminal Law Amendment Ordinance III of 1980 came into force by virtue of which the sentence for the offence was enhanced to 10 years. Since the amendment will have no retrospective effect, therefore, the appellant could not be sentenced under the amended law. In support of this proposition, reliance is placed on the case of Abdul Mijid v. Stare (P L D 1974 Kar. 309) where it was held that sentence being part of the substantive law, any amendment in law relating to it did not effect any penalty or punishment already incurred. In the cited case, the appellant was sentenced to transpiration for life instead of imprisonment for life but since they murder was committed at a time when the offence carried the punishment of transportation for life, therefore, it was held that the amendment will not have a retrospective effect because a sentence is a part of substantive law and does not fall under procedural law. In this view of the matter, the sentence awarded was not correct. I, therefore, reduce the sentence to 4 years R. I. The convict shall be given the benefit of section 382-B Cr. P. C. i. e. the period which he has spent in custody before conviction shall be deducted from his sentence of tour years. The sentence of fine is maintained with the modification that in default of payment of fine, he shall suffer one month R. I. further. M. Y. H. Appeal dismissed. Ch. Muhammad Rashid for Appellant. M. Islam for A.-G. for the State. Dates of hearing : 17th and 24th April, 1985. Altaf Hussain (35) bus driver, was tried for the murder of Ghularn Rasool. On 5-5-1983, Additional Sessions Judge, Toba Tek Singh, found him guilty under section 304-A, P. P. C. and sentenced him to 7 years' R. I. with a fine of Rs. 2,000 in default to undergo 6 months R. I. Fine if recovered was ordered to be paid as compensation to the heirs of the deceased. The convict has come up in appeal. 2. In the afternoon at 1-15 p. m. on 21-7-1979 Altaf Hussain was Driving Bus No. LEG-4097 of Sabir Goods Transport. As he reached near the crossing of Police Station, Kamalia, he struck against Ghulam Rasool. His bus ran over him. The driver stopped the bus at some distance and thereafter he fled away. Ghulam Rasool died at the spot. Besides, P. W. 6 Muhammad Siddiq informant, the occurrence was witnessed by Muhammad Ashraf and Ahmad Ali. P. W. 6 Muhammad Siddiq went to Police Post, Kamalia, where he made the report Exh. P.F. on the basis of which case was registered at - Police Station, Kamalia, the same day. P. W. 18 Muhammad Bashir A. S. I. went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination. He took into possession Bus No. LEG-4097. 3. P. W. 15 Dr. Ghulam Ahmad, Medical Officer, Civil Hospital, Kamalia, held the autopsy on the dead body of Ghulam Rasool at 3.30 p. m the same day and found five injuries on it. In his opinion, Ghulam Rasool died of shock and haemorrhage due to injuries to brain, skull and chest, which were sufficient to cause death in the ordinary course of nature. On 21-7-1979 Sajjad Hussain Kharal, produced the accused before the Investigating Officer. 'On the following day, he got the bus examined through Fateh Muhammad, Mechanic, whose report is Exh. P. A. The owner of the bus P. W. Muhammad Ismail produced the relevant papers of the bus before the Investigating Officer. After completing the investigation, the accused was tried in due course. 4. It may be mentioned at the outset that the prosecution tried to make out a case of intentional killing but had failed. The trial Court had rightly taken note of it and came to the conclusion that the offence was nothing more than the one under section 304-A, P. P. C. In this regard, it may be mentioned that in the F. I. R. which was made after the occurrence, Muhammad Siddiq, informant, clearly stated that the occurrence took place due to rash and negligent act of the appellant. It did not contain any motive which was later put up by P. W. 5 Muhammad Akram that the accident was intentionally caused due to professional rivalry and the appellant deliberately struck his vehicle against the deceased who was standing near the bus stand. 5. The appellant's case is that he was not the driver of the involved bus. He stated that it was one Talib who was driving the bus. No doubt Sajjad Hussain Kharal who had produced the appellant before the police was not produced by the prosecution but this would not help the defence because according to the eye-witnesses they had seen the appellant driving the vehicle. Much reliance was placed on the statement of 'P. W. 7 Ahmad Ali who at first in the examination-in-chief said that Talib Hussain struck the deceased but in the same breath, he corrected himself and named Altaf Hussain as the accused. It appears that at first, he inadvertently mentioned the name of Talib Hussain instead of the accused. However, under cross-examination, he said that he did not remember as to who suggested accused 's name to him. Since the appellant fled away from the place of occurrence, it appears that he is taking advantage of this by putting up names of others as the driver of the bus which was involved in the accident. The identity of the appellant is fully established by the owner of the bus and the eyewitnesses. On the other hand, the appellant led no evidence to show that he was elsewhere at the time of occurrence. In fact the appellant has produced no evidence in his defence. 6. It was next contended that there is- no evidence to show that the appellant was driving rashly and negligently. It is abundantly clear from the report of the Mechanic that there was no mechanical defect. Steering, Foot brake and Tie-rod were in order. According to the Mechanic, the hand brake was not in order. Hand brake is only applied when the vehicle is parked or when the foot brake suddenly runs out of order. According to the Mechanic's report, the foot brakes were in order. The case is overwhelming, against the appellant. There is no ground for interfering with the conviction. 7. In so far as the sentence is concerned, the occurrence took place on 21-7-1979 on which date, the offence under section 304-A P. P. C. carried a sentence of four years and fine. It was later on 3rd February, 1980, that Criminal Law Amendment Ordinance III of 1980 came into force by virtue of which the sentence for the offence was enhanced to 10 years. Since the amendment will have no retrospective effect, therefore, the appellant could not be sentenced under the amended law. In support of this proposition, reliance is placed on the case of Abdul Mijid v. Stare (P L D 1974 Kar. 309) where it was held that sentence being part of the substantive law, any amendment in law relating to it did not effect any penalty or punishment already incurred. In the cited case, the appellant was sentenced to transpiration for life instead of imprisonment for life but since they murder was committed at a time when the offence carried the punishment of transportation for life, therefore, it was held that the amendment will not have a retrospective effect because a sentence is a part of substantive law and does not fall under procedural law. In this view of the matter, the sentence awarded was not correct. I, therefore, reduce the sentence to 4 years R. I. The convict shall be given the benefit of section 382-B Cr. P. C. i. e. the period which he has spent in custody before conviction shall be deducted from his sentence of tour years. The sentence of fine is maintained with the modification that in default of payment of fine, he shall suffer one month R. I. further. M. Y. H. Appeal dismissed.