P L D 1964 (W (PLP)

This is a criminal reference made to this High Court by Mr. Muhammad Yusuf C. Khawaja 2nd Additional Session; Judge, Hyderabad, recommending that the sentence of a fine only of Rs. 200 or in default simple imprisonment for one month awarded to the opponent by the Extra Joint Sub‑Judge and F. C. M., Hyderabad, in respect of an offence under section 304‑A, P. P. C., be enhanced.

2. The brief facts giving rise to this reference are that at about noon time on 9‑8‑1962 as Mr. Abdul Wahid Cane Develop ment Officer, Fouji‑Sugar Mills, Tando Muhammad Khan, was being driven in his jeep by the accused into Hyderabad City, this jeep collided with a rickshaw coming in the opposite direction in which one Mushtaq Ahmad a young man of 22 years of age was a passenger and as a result of which collision he lost his life. It is in evidence that that day, 9‑8‑1962, was a rainy day in Hyderabad and the road being wet and slippery, this jeep is said to have slipped and thus crashed into the rickshaw coming in the opposite direction. The trial Magistrate, because the road was slippery on account of rain, has taken a lenient view of the guilt of the accused despite his plea of guilty and has only sentenced him as mentioned in para. 1 above. The present reference is for enhancement of this sentence.

3. I have heard Mr. Moinullah appearing on behalf of the State and has invited my attention to the note made by me at the time of admitting this reference to a regular hearing to the effect that the maximum punishment now prescribed in West Pakistan for an offence under section 304‑A, P. P. C. is four years' R. I. He has also pointed out that as it was a rainy day and the road was slippery, it was the duty of the accused/ jeep driver to drive his jeep at a slow speed so as to ensure that it would not skid. Mr. Moinullah submitted that it was on account of the negligence of the jeep driver that this jeep collided with the rickshaw thereby causing the death of Mushtaq Ahmed a young man who had just obtained employment in the office of the D. M. Hyderabad and who was then a passenger in this rickshaw.

4. On behalf of the accused/jeep driver I have heard Mr. Mukhtar Ahmed Advocate who has invited my attention to certain Case Law in support of his contentions that this is not a fit case in which the sentence imposed upon the accused should be enhanced. The cases referred to by Mr. Mukhtar Ahmad are to be found in A I R 1925 Sind 188, A I R 1937 Bom. 96 and P L D 1959 Kar. 30.

5. I have considered the arguments urged before me at the Bar in this reference. It is true that the punishment of an offence under section 304‑A, P. P. C. has recently been enhanced in West Pakistan to four years' R. I. and the reason for this, obviously, is that it is the intention of Government that this offence should be put down with a strong hand. At the same time, as pointed out by Mr. Mukhtar Ahmad, appearing on behalf of the accused, it is necessary that the negligence on the part of the accused should fully be established. The last case referred to by Mr. Muktar Ahmad namely Muhammad Yaqoob v. The State (P L D 1959 Kar. 30), points out that the rash and negligent act of the accused must be conclusively proved by direct evidence before he can be con victed of an offence under section 304‑A, P. P. C. In the instant case, the negligence of the accused consists in driving his jeep on a rainy day on a slippery road in such a manner that it skidded and crashed into a rickshaw which, admittedly, was coming on its proper side from the opposite direction. It seems to me that this jeep if it had been driven with reasonable caution ought not to have slipped or skidded. The cause of a skid is the sudden applica tion of the brakes and, in this particular case, the sudden applica tion of the brakes caused by the accused/jeep driver would indicate that his jeep was going faster than it should have been when approaching the oncoming rickshaw. It was to reduce his speed that the jeep driver must have applied his brakes and it is this sudden application of the brakes on a slippery road that has occasioned the skidding of the jeep and its crashing into the oncoming rickshaw.

6. The second case relied upon by Mr. Mukhtar Ahmad appearing on behalf of the accused/jeep driver is the case of the Emperor v. Khan Muhammad (A I R 1937 Bom. 96) in which a Bench presided over by Sir John Beaumont, C. J. held that :‑ " the mere fact that a human life is lost due. to negligent driving of a motor car does not justify the Court n passing a deterrent sentence, if the loss of life could not have been reasonably anticipated by the accused." In this reported case the man who was killed was a passenger in the very motor lorry which was being driven by the accused. As a result of a bump this passenger fell out from this motor lorry and thus met his death. Thus, the facts of this reported case are clearly distinguishable from the facts of the instant case and, therefore, I am not inclined to place reliance upon this judg ment of the Bombay High Court. The third case relied upon by Mr. Mukhtar Ahmad is reported in A I R 1925 Sind 188 in which a Bench of the Court of the Judicial Commissioner in Sind held that a plea of guilty by accused persons is to be considered from the habits of the Indian criminals, as due, to hope, reasonable or otherwise, of leniency of punishment, and, therefore, it is not proper to enhance the punishment as it might attach suspicion of perfidy to the Judiciary. But, in the instant case, the statement of the accused shows that the accident occurred because in his own words :‑ " the jeep slipped due to rain and collided with the rickshaw by accident." He was then asked what else he had to say to which he replied:

" I plead for mercy " It would thus appear from the answers of the present accused when examined under section 342, Cr. P. C. that his plea of guilty in this case was not occasioned by a desire to be dealt with mercifully. His main defence appears to be that the collision occurred because the jeep slipped due to rain and thus acci dentally collided with the rickshaw.

7. There is, again, no doubt that in Pakistan today these offences of rash and negligent driving resulting in road accidents and in death are becoming increasingly com mon. The toll of the road is today higher than it has ever been in this country. It is because of this fact that the Legislature has considered it necessary to enhance the punishment prescribed under section 304‑A, P. P. C. from two years to four years' R. I. In this view, then, I feel that I would be failing in my duty unless I enhance the sentence imposed upon the accused in this case. Accordingly, I direct that the sentence imposed upon him of a fine of Rs. 200 only or in default one month's S. I., be enhanced to six months' R. I. The fine of Rs. 200 will remain and as mentioned by the trial Magistrate this money, if recovered, shall be paid over mother of the deceased as compensation under section 545 Cr. P. C. The accused is in Court. He is remanded to custody to serve out this sentence. S. Q. Reference accepted.