1988 PLP r (PCRLJ)

(c) Penal Code (XLV of 1860)

Ss. 304-A & 338--Negligent and rash act--Engine of vehicle which accused was driving suddenly stopped and accident took place--Perusal of evidence showing that there was no negligence or rash act on part of accused in causing accident which resulted in death of three persons and injuries to others--No conviction and sentence under Ss.304-A & 338, Penal Code, held, could be recorded in circumstances--Conviction and sentence awarded to accused under S.304-A, Penal Code, set aside. Mahmood Ali Khan v. The State 1975 P Cr. L J 813 rel. Q. Mohammad Asif Khan for Petitioner. Kh. Nazir Ahmed, A.A.-G. for the State. Date of hearing: 30th March, 1988. Petitioner Kala Khan was driving Suzuki Pick-up No. MA-1882 on Murree Khairagali Road on 4-6-1984. There were about 15/16 passengers in the vehicle. At 13-30 hours the engine of the vehicle stopped when it reached a turning which was at more height. The vehicle retreated and fell down the road as a result of which three passengers died at the spot and 8 were injured. Kala Khan one of the passengers made a report of the occurrence in Police Station Dongagali at 14-30 hours where F.I.R. No.55 was recorded. The petitioner was accused of offences under section 279/304/337/338, P.P.C. and sent up for trial before M.I.C., Abbottabad where he was charged under section 304-A and 338, P.P.C. The State produced 7 witnesses in support of the prosecution case. The statement of the petitioner was also recorded under sections 342, Cr.P.C. After the conclusion of the trial the learned trial Magistrate convicted the petitioner under section 304-A, P.P.C. and sentenced him to undergo rigorous imprisonment for 2 years on each count and also to pay a fine of Rs.1,000 on each count. In default of payment of fine he was to further undergo rigorous imprisonment for 1 . months on each count. The learned trial Magistrate by his judgment, dated 17-1-1987 acquitted the petitioner for the offences under sections 279, 337 and 338, P.P.C. The petitioner filed an appeal which was heard by the learned Sessions Judge, Abbottabad but he dismissed it on 13-9-1987. Still feeling aggrieved the petitioner has come up in the present revision petition.

2. I have heard learned counsel for the parties who have also led me through the record of the case.

3. The admitted facts of the case are that the petitioner was driving the said vehicle on the fateful day, its engine stopped when he was negotiating a turn on the Murree Khairagali Road which was at a height and the vehicle retreated and fell down causing death of 3 passengers and injuries to others. However, the contention of the learned counsel for the petitioner is that the accident did not take place as a result of any rash and negligent act on the part of the petitioner. His contention was that the petitioner was driving the vehicle and there was no defect in its engine but suddenly when it was going at a height the engine stopped and the vehicle retreated. In this circumstance there was no fault of the petitioner neither any negligence on his part. Even otherwise at that time the driver had attempted to stop the vehicle and had ordered the conductor to place stones under the wheels so that the vehicle could stop from going down but unfortunately he could not succeed.

4. I have minutely considered this contention of the learned counsel for the petitioner. It is a fact that there was no technical defect in the vehicle and the report of the Motor Vehicle Examiner confirms this but suddenly the engine stopped and the accident took place. In such a case the petitioner could not be accused of any negligence because there was no negligence on his part and also he could not be accused of any rash act. A person can be convicted and sentenced for an offence under section 304-A, P.P.C. if it is proved that death of any person occurred due to any rash and negligent act on the part of the accused. Similarly a person could be convicted under section 338, P.P.C. when it was proved that hurt had been caused to any person by doing any act rashly and negligently by that person. The perusal of the evidence recorded in this case would show that there was no negligence or rash act on the part of the petitioner in causing the said accident. From the evidence produced in the case it cannot be found that death of 3 passengers and injuries to others were caused by the petitioner by any negligence or rash C act on his part. As such the conviction and sentence under both the offences under sections 304-A and 338, P.P.C. could not be recorded against the petitioner. Both the learned lower Courts failed to appreciate this aspect of the matter. In arriving at this conclusion I also draw support from the case of Mahmood Ali Khan v. The State 1975 P Cr. L J 813.

5. The net result of the above discussion is that I will accept this criminal revision, set aside the conviction and sentence of the petitioner under section 304-A, P.P.C. and will acquit him of the said offence. He is on bail. His bail bonds are also discharged. I find from the judgment of the learned trial Magistrate that he had also acquitted the petitioner for the offences under sections 279 and 337, P.P.C. whereas the petitioner was not charged for these offences. Perhaps the learned trial Magistrate did not consult the charge-sheet before writing the judgment. From the impugned judgment of the learned Sessions Judge also I find that he also perhaps did not consult the charge-sheet and erroneously mentioned the offences under sections 279 and 337, P.P.C. in paragraphs 3 and 8 of his judgment. M. Y. H./622/P Revision allowed.