1976 P Cr (PLP)

Muhammad Ali Shaikh for Applicant. Usman Ghani Rashid, Asstt. A.‑G. for the State. Date of hearing : 16th June 1975. This is a revision application against the orders dated 31‑8‑1972 passed by the learned Assistant Commissioner and S. D. M., Old Town, Karachi and the order dated 5‑6‑1973 passed by the learned Sessions Judge, Karachi, whereby the former convicted the applicant under section 304‑A, P. P. C. and senten ced him to suffer rigorous imprisonment for three years and pay a fine of Rs. 1,000 or to undergo further R. I. for six months in default of payment of fine and the later upheld this order in appeal.

2. The facts leading to this revision application are that the applicant who was driver of Truck No. K A B 6170 was driving his truck on Mangho pir Road and when he reached near Bismillah Hotel he overtook a rickshaw and a car. Meanwhile, one Atiqur‑Rehman riding a scooter turned towards Manghopir Road from a side‑lane. While taking the turn he collided with the right side bumper of the truk. He received injuries and was taken to Hospital for treatment where he succumbed to his injuries after a short while. A case was accordingly registered against the applicant under section 304‑A, P. P. C. who was tried by Sub‑Divisional Magistrate, Old Town, Karachi and finally convicted to the sentence mentioned above.

3. The applicant has in his defence pleaded innocence and submitted that he was driving his truck at a normal speed when the motor‑cyclist emerged from a side lane all of a sudden and dashed against the rear body of his truck and fell down. After the accident he applied the brakes and stopped the truck and took the deceased to the hospital for treatment. According to him, the truck stopped at 10 to 12 paces ahead from the place of the accident after the brakes were applied following the accident.

4. After the accident the F. I. R. was lodged with the police and inves tigation started. The first informant was A. S. I. police of Pak Colony. The deceased was admitted to hospital where it was found that he had suffered three injuries of which two were lacerated wounds on the parietal regions and one abrasion on right index finger. Dr. S. Irfan Hussain who had examined the deceased had left Karachi for good and therefore the result of his examination was brought on record by Dr. Umer Khan who appeared as P. W. No. 10 in the case. According to him, the cause of death as given by Dr. S. Irfan Hussain and by Dr. Salim who had also examined the deceased was interacranial haemorrhage. It is an admitted feature in the case that no post‑mortem was conducted and therefore a doubt is naturally created about the cause of death of the deceased.

5. The prosecution has examined six eye‑witnesses and all of them have stated that the truck was running at a high speed, it overtook a car and a rickshaw shortly before the accident took place. These witnesses are also unanimous on the point that no brakes were applied immediately when the accident took place and as such there were no marks of skiding on the road. None of the witnesses has stated as to what was the approximate speed of the truck. Similarly, the witnesses have also not stated anything about the sped of the scooter. However, P. W. No. 5 has stated that the truck stopped at a distance of 15 or 20 paces away from the place of occurrence after the accident. He is supported by P W No. 6 who has deposed that when he reached the spot the truck was standing at a distance of 20 paces from the place of accident. From the fact that soon after realising that an accident had taken place the applicant applied the brakes and the truck stopped at a distance of 15 to 20 paces, we can ascertain the approximate speed of the truck. Had the speed been very high the truck would not have stopped between 15 to 20 paces from the place of accident after the application of the brakes. It also negatives the prosecution version that the foot brakes of the truck were weak. If the foot brakes had been weak and the truck had been running at an excessively high speed, then it could not have stopped between 15 to 20 paces after the application of the brakes. From these facts it has become crystal clear that the applicant was not driving the truck at a high speed. As far as rash and negligent driving is concerned, there is nothing on the record to show that the truck was being driven at a high speed and in violation of traffic rules, I have already observed that the speed of the truck has not been fixed approximately by any witness. On the other hand, speed being of the primary considera tion, the facts disprove it that the speed was high. Even otherwise, if it is assumed for the sake of arguments that the speed was high, it would not necessarily follow from it that the applicant was also rash and negligent because even if the speed is high one may not be rash and negligent. To run a vehicle at a high speed is not an offence in itself. Rather, the offence is to drive rashly and negligently. Word rashness does not necessarily point at the high speed but it has an element of negligence also. Then, it would differ from place the place and it will have to be essentially established as t what the approximate speed should normally be in a particular area in view of the quantum of traffic in that area.

6. As I have observed above, no post‑mortem was carried out and there fore it cannot be safely inferred that the death of the deceased was the direct result of the injuries suffered by him as a result of the accident. Post‑mortem examination was necessary to bring out the fact that the death had occurred due to injuries received by the deceased on account of said accident. While taking this fact in view, I am fully supported by Abdul Latif v. State (1972 Cr. L J 1095) wherein it is held as under "A formal post‑mortem examination was however necessary to find out the exact cause of his death. As a result of this unfortunate omission the prosecution had failed to establish that the death of Ajaib Khan deceased was the direct result of the injuries suffered by him on account of the rash or negligent act of the petitioner. He could be held guilty of an offence under section 304‑A, P. P.C. only after it was proved by the necessary medical evidence that the resultant injuries were the immediate, proximate arid efficient cause, the causa causans and not merely the cause sine qua non of death, without the intervention of any other negligence."

7. From the above discussion it is obvious that the prosecution has 'been able to establish its case against the applicant under section 304‑A, P. P. C.

8. The learned counsel for the State has argued that post‑mortem exami nation was not necessary to substantiate that the death occurred due to rash or negligent driving. I am unable to agree with his view particularly in the presence of the ruling cited above. At the same time I am unable to agree with this contention that the truck was being driven by the applicant rashly and negligently. So far as the allegations of rashness and negligence are concerned there is nothing on record to show that while driving the truck the applicant did not observe the traffic rules. There is also no cogent evidence to substantiate that the speed at which the truck was being driven in this area was excessive for the area keeping in view the quantum of traffic on the road. On the other hand, the record shows that the truck was stopped between a distance of 15 to paces after the accident which goes to show that the speed was not high. Even otherwise, as I have observed earlier it is not necessary that driving at a high speed may always be relatable to rashness and negligence. The fact as to what should the approximate speed be in a particular area would differ from locality to locality and would be a fact ascertainable on the consideration of the quantum of traffic in the parti cular area. The fact as to what was the quantum of traffic in that area and what was the approximate speed of the truck has not come on the record and therefore it cannot be safely said as to what the speed of the truck should have been. However, in any event, it does not seem to be excessive for the reasons which I have given above. There is also no evidence as to the negligence of the applicant in driving the truck or as regards his non observance of the traffic rules.

9. For the foregoing reasons I find that a case under section 304‑A, P. P. C. has not been made out against the applicant who is acquitted of the charge. He is already on, bail and his bail bound stands discharged. Petition accepted.