1986 PLP 1926 (MLD)

(f) Penal Code (XLV of 1860)‑‑ ‑‑‑S.304‑A‑‑Negligence‑‑"Conscious negligence" as distinguished from 'unconscious negligence"‑‑Advertent and inadvertent negligence‑‑No difference between two for purpose of awarding punishment‑ "Unconscious negligence" was nothing but failure on part of person responsible for such negligence, to take such steps which he would take in normal course of business‑‑Accused, held, could not escape punishment even if he was proved to have committed such type of negligence. Rogers v. The State 1977 P Cr. L J 138; Taj Muhammad v. The State 1979 P Cr. L J 985 and Muhammad Akhtar v. The State 1980 P Cr. L J 103 ref. G.M. Paryani for Applicant. Imam Bux Sheikh for the State. Date of hearing: 20th February, 1986. This is a revision application whereby the applicant Qadir Bakhsh has impugned two judgments one of first Class Magistrate, Court VII South Karachi, dated 5‑5‑1981 and another of IIlrd Additional Sessions Judge, South Karachi, dated 17‑10‑1985. By the first judgment the applicant was convicted under section 304‑A, P.P.C. and sentenced to R.I. for six months. The appeal preferred from this judgment was dismissed by the Second judgment. Briefly stated the facts of the case are that on 10‑10‑1979, Fida Muhammad, a boy of 12 years lost his life in a motor accident on Mirza Adam Khan Road. The accident took‑ place at 6 p.m. near Quetta garage where the victim boy was working. It is said that he was hit by Bus No.801‑47, which the applicant was driving rashly and negligently. The boy came under the rear wheel of the Bus and was dragged for several feet with the result that his left leg and testicles were badly damaged. He was immediately removed to the hospital where his leg was amputated obviously in an attempt to save his life but he succumbed to the injuries on the third day of the occurrence i.e. 12‑10‑1979. The police registered a case and took up investigation. The applicant /accused ultimately placed on trial with the result stated above. It was contended by the learned counsel for the accused that the learned lower appellate Court has not properly discussed the grounds that were urged before him in support of the appeal nor has he given cogent reasons to reject the said grounds. He further submitted that both the Courts below have not given due attention to the major contradictions appearing in the evidence of the witnesses. According to him the lower Courts have also failed to comprehend the distinction between advertent and inadvertent negligence and consequently the conclusions reached by them are erroneous. The learned counsel also referred to some reported cases. It may be stated at the outset that while exercising revisions jurisdiction, this Court has limited scope for interference. It is by now well‑settled that High Court cannot interfere in exercise of its powers of revision, unless the impugned order or judgment is patently erroneous, perverse, foolish or absurd that it cannot be legally sustained. It has been repeatedly held that the concurrent findings of fact of the lower Courts cannot be disturbed merely because the alternate argument could be advanced in support of appreciation of evidence. I have perused the judgments of the lower Courts, which do not seem to suffer from any such flaw as pointed out above. 'It is an admitted position that the' deceased died of the injuries he had received as a result of the running over of the ill‑fated bus. The accused's defence is bare denial of the allegations that he was driving the bus rashly or negligently. Two witnesses examined by him in his defence are of no help to him and as such the trial Court, has rightly ignored their evidence. On the other hand the prosecution examined three eye‑witnesses in support of their case. They have unanimously stated that it was peak hour of the traffic at the time of incident and that the bus which hit the victim boy was coming at fast speed. The main grievance of the learned counsel for the applicant was that the Courts below have not given due importance to major contradictions appearing in the evidence of the eye‑witnesses. I have gone through the statements of all the three witnesses namely Ghulam Rasool, Afzal Khan and Muqarib Khan. The only contradiction worthy of mention that I have come across is that unlike first two witnesses who have stated that the victim boy was standing when he was hit by the speeding bus, Muqarib Khan is shown to have seen the said boy running towards the other side of the road when he came under the rear wheel of the bus. The observation of the learned Additional Sessions Judge that he has not found any major contradiction in the statement of P.Ws. clearly shows that he has not only considered the contradictions but has also not regarded them as major contradictions. I share the view of the learned appellate Judge and do not consider even the contradiction pointed out above of any importance. Such contradictions are only natural and they cannot be taken as ground for disbelieving, the witnesses. Even if the statement of. Muqarib Khan is believed as against the evidence of other two witnesses, such belief would not by itself absolve the accused from liability. Merely because the said witness saw the victim boy running towards the other side of the road, it would not follow that the accused was not in the wrong. Whether the accused was rash and negligent in driving the bus could be decided in the light of totality of the circumstances in which the accident took place. Admittedly the incident occurred at the time when the load of traffic was at its peak. It was evening time. Therefore, the accused was expected to be extra‑cautious in his driving. In the situation cr4letted by over‑crowding and traffic jam even the speed of 20‑25 miles may, be regarded as fast speed. In case of congestion of the traffic, the driver has to ensure that the vehicle is in his perfect control so that he is in a position to save the happening of any accident. In the instant case the vehicle is certified by the vehicle Inspector to be free from any mechanical defect. But the Mashirnama of the Vardat is silent as to any marks of indications found at Vardat suggesting that the driver of the ill‑fated bus in his attempt to save the life of the boy had applied brakes or had taken any other step. On the contrary it shows that it was not a case of mere hitting or knocking down of the boy but he was crushed under the rear wheel of the bus and dragged along for several feet and in result the testicles and one leg of the boy were so damaged that the leg was to be amputated and yet the boy could not survive. In these circumstances, I do not see how the unanimous verdict of the two lower Courts that valuable human life was lost on account of rash and negligent driving of the accused was either perverse or in any way suffered from illegality. I am unable to agree with the argument of the learned counsel for the accused that the learned Additional Sessions Judge has given no reason to meet the contentions raised before him. His judgment is self‑explanatory. I need not repeat the comments he has made on the arguments advanced before him. The learned counsel's grievance that he was bound to either reject or accept all the grounds taken in support of the appeal and give reasons for his findings, does not appear to be correct. The learned appellate Judge has taken into consideration all such points argued before him that were material for disposal of the appeal. That was all what was expected from him. The next argument of the learned counsel for the accused that there is difference between advertent and inadvertent negligence and that the accused has been punished for his inadvertent negligence is also without force. In my opinion there is hardly any difference between the two for the purpose of awarding punishment. Of course there can be conscious negligence as distinguished from unconscious negligence. But the latter negligence is also nothing but failure, on the part of the person responsible for such negligence, to take such steps which he would take in normal course of business. The accused cannot escape punishment even if he is proved to have committed latter type of negligence. Lastly I may refer to authorities cited by the learned counsel for the applicant. They are: Rogers v. The State 1977 P Cr. L J 138; Taj Muhammad v. The State 1979 P Cr. L J 985 and Muhammad Akhtar v. The State 1980 P Cr. L J

103. The facts of the cases reported above are distinguishable from those of the instant case and as such they render no assistance to the applicant. For above reasons I see no justification for interference. Accordingly the revision application is dismissed. M.Y.H. Petition dismissed.