P L D 1962 (W (PLP)

These two revision petitions arise from the same case in which both the petitioners were tried together for an offence under section 304‑A, P. P. C., and were convicted by the Magistrate with section 30 Powers, Sheikhupura, and were sentenced to 1 years' rigorous imprisonment. Both of them appealed and the Sessions Judge, Sheikhupura, maintained their conviction by his judgment dated the 3rd October 1961, but he reduced their sentence to one year.

2. The facts of the case briefly stated are these: Two vehicles were proceeding in the same direction towards Sheikhu pura side. One of these was a motor lorry which was driven by the petitioner Nur Ahmed and the other was a car which was being driven by the other petitioner Rahim Bakhsh. When these vehicles reached near village Feroze Watowan, Rahim Bakhsh, the driver of the car, attempted to overtake the bus, and while so doing, its rear bumber got entangled with the front bumper of the bus and the car turned turtle and went over the left side of the road and one pedestrian Muhammad Jamil came under it and was killed. Two witnesses saw the collision. These were Mokha (P. W. 2) and Muhammad Yunas (P. W. 5). Both the Courts below found that both the vehicles were being driven at a high speed and the driver of the car acted negligently in trying to overtake the bus in that speed. The learned Sessions Judge also came to the conclusion that the two vehicles were competing with each other in speed and the driver of the lorry was not willing to allow the driver of the car to pass him and it was in this situation that when the car driver ultimately was about to overtake the lorry the collision took place, because the lorry driver would not allow the car to cross it.

3. P. W. 2 Mokha left Muhammad Yunas (P. W. 5) on the spot and himself proceeded to make a report. He met the Assistant Sub‑Inspector on the way and come back with him to the scene of the collision. Both these vehicles were seized and it was found that the rear bumper of the car was damaged and so was the front bumper of the bus. The car subsequently suffered much greater damage as a result of having been overturned after its impact with the bus. Several photographs of the two vehicles were taken and these, along with the site plan of the accident, give a fairly clear idea of how the accident took place. The car had gone on the kacha side of the road in order to pass the lorry. The road is a fairly broad one and if the bus driver had given the side to the driver of the motor car which was a Chev., it would not have been necessary for the latter to go so much on the kacha side of the read in order to cross the lorry. There is evidence on record to show that the pacca road was broad enough to enable the car to pass the lorry without going on the kacha part of the road. Apart from the damage to the right hand side of the front bumper of the bus, it is clear from Exh. P. 10 that there was also a deep dent on the front of the right mudguard of the bus. The Inference, therefore, is clear that when the driver of the bus found that the car was about to overtake him he slightly turned his vehicle towards the right. It was in this process that the front of his right mudguard came into contact with the rear portion of car which was followed by the entangling of the bumpers of the two vehicles. In these circumstances it becomes clear that both the drivers acted with gross negligence. The driver of the car acted negligently inasmuch as he tried to overtake the lorry when the driver of the latter had not given him the side. On the other hand, the driver of the lorry acted against the rules of the road in refusing to allow the car to pass it. Not only that, it also tried to arrest the overtaking by trying to obstruct it in the manner indicated above. I am, therefore, satisfied that the finding of the Courts below as regards the negligent act of both the drivers is correct. It was as a result of this negligence that the impact of the two vehicles took place resulting in the unfortunate death of an innocent pedestrian who was walking on the left hand side of the road on its kacha portion. As the death of the pedestrian was caused by a collision, which was the result of the negligence on the part of both the drivers, they were rightly held to have been guilty of an offence under section 304‑A, P. P. C.

4. The learned counsel for petitioner Rahim Bakhsh raised a legal objection that the joint trial of these petitioners was bad in law and, therefore, the whole trial was vitiated. It was argued that under section 233, Criminal Procedure Code, for every distinct offence there has to be a separate charge and every such charge has to be tried separately unless the case was covered by sections 234, 235, 236 and

239. Criminal Procedure Code. It was pointed out that the only provision which could be applied in this case to justify the joint trial would apparently be section 239, sub‑clause (a). This reads as follows: ‑ "The following persons may be charged and tried together, namely: ‑ (a) persons accused of the same offence committed in the course of the same transaction." It was common ground that it was this provision, which enabled the joint trial of these two petitioners. Mr. Saeed‑ur‑Rahman, the learned Advocate for Rahim Bakhsh, contended that the two drivers of the respective vehicles were driving them independently of each other and there was neither any common purpose between them nor they were acting in concert with each other. Even the alleged rash and negligent acts imputed to them were independent actions of the two drivers and, therefore, the collision cannot be held to be the result of common action or committed in the course of the same transaction. He relied upon two decisions of the High Court of Travancore‑Cochin and is reported in Edward Top and another v. State (A I R 1954 Trav. Co. 4). In this case, the two accused persons were driving two cars from almost opposite directions and the charge against them related not only to the collision of the cars and the consequences that followed, namely, the death of one David Daniel and hurt to another, but also to the rash and negligent driving of their cars along the public road as to endanger human life or to be likely to cause hurt or injury to other persons. These latter acts fell under sections 279 and 336, Penal Code. The commission of the offences under these two sections was anterior to the collision. Upon these facts it was held that whatever might be said of the collision and its con sequences, proximate or remote, it could not be held that the driving of the car by accused No. 1 on the one hand, in a rash and negligent manner so as to attract the penal provisions in sections 279 and 336 and similar conduct with his car by accused 2 on the other, constituted a "same transaction" within the meaning of section 239 (a) or section 239 (d), Criminal Procedure Code. It was further observed that those were distinct acts un connected with each other committed by different persons at different places and there was no warrant for the delinquents being jointly tried for those acts.

5. It was upon the findings stated above, that it was held that the joint trial of the two accused persons was bad. However, the learned Judges took note of a Madras case Balliah v. Emperor (1931 Mad. W N 550) in which it had been held that a collision was one transaction and the trial of the two drivers under section 304‑A was valid. Their Lordships of the Travancore and Cochin Court did not dissent from this view taken in the Madras case, though they said enough to show they had their doubts about its correctness.

6. The other case relied upon by the learned counsel is the one Umar Din v. The State (A I R 1954 Saurashtra). In that case also the decision turned upon the point that the joint trial of the two drivers for an offence under section 279, I. P. C., was bad as it was difficult to see how the offence under that section could be deemed to have been committed in the course of the same tran saction to which the two accused were parties as being animated by the same purpose. For the purposes of discussion it was assumed that the offences under sections 304‑A and 338, I. P. C. could be said to have been committed in the course of the same transaction so far as the two accused were concerned. The Madras case referred to above was brought to their notice and all that they said was that the point emphasised in that case was not free from doubt and since the case before them could be decided on other grounds, they preferred to leave the question open. It would, therefore, be noticed that in neither of these two decisions the view taken in the Madras case was dissented from.

7. I have myself given the question my mature consideration and have come to the conclusion that the joint trial of the two petitioners for the offence under section 304‑A, P. P. C. is covered by the provisions of section 239 (a), Criminal Procedure Code. It is true that the two drivers were not acting in concert to cause a collision nor had they intended that such a result should have occurred which in its wake caused the death of a pedestrian. But it must be noticed that an offence under section 304‑A, P. P. C. Itself does not contemplate the intentional causing of death. This penal provision deals with cases of rash or negligent act. The element of intention is not an ingredient of cases falling under negligence. Negligence consists of the failure to take due care which a person is expected to take in the circumstances of a particular situation. When, therefore, two drivers of motor vehicles acting negligently cause a collision resulting in the death of a third person, I think it can reasonably be held that the collision constituted one transaction and both of them can, there fore, be tried jointly for the offence which resulted from an act which was jointly committed by both of them, though they did not act in concert. I, therefore, hold that the joint trial of the two petitioners was warranted by law.

8. In view of the conclusions reached by me, I dismiss both these revision petitions. S. B./A. H. Petition dismissed.