1994 P Cr (PLP)

Date of hearing: 26th September, 1992 Nazir Ahmad appellant was charged under section 302, P.P.C. but convicted under section 320 ibid by a learned Additional Sessions Judge, Lahore vide judgment, dated 29-1-1992 and sentenced to five years' (sic) R.I. and Diyyat of Rs.1,70,610...He has come up in appeal.

2. The occurrence took place. at 8-40 a.m. on 10-1-1991. Muhammad Raft, S.I. of P.S: Nawari Kot, Lahore (P.W.9) reached the spot and there recorded the statement (Exh.P.A.) of Ashiq Hussain, complainant (P.W.1) at 9-35 a.m. It was sent to the police station where formal F.I.R. (Exh.P.A./1) was registered by Jamat Ali, S.I. (P.W.5). 3, Manzoor Hussain, A.S.I. Police Post Hanjarwal is the deceased of, the case. He was the real uncle of Ashiq Hussain, complainant and a brother of Muhammad Hussain (P.W.4). On the day of occurrence Ashiq Hussain alongwith Abbas and Muhammad Hussain (P. Ws. 1, 3 and 4) started for Hanjarwal to see the deceased. They were going in Bus No. GLTA 474 at Multan Road, Lahore while a motor-cycle was going ahead towards Multan Road Octroi Post, near Fruit Market, Iqbal Town. The bus was being driven by Nazir Ahmad, 'appellant. Seeing the motor-cyclist he accellerated the speed. He was asked to drive carefully but he told that he was tired of the A.S.I. (the motor-cyclist) who did not allow him to take passengers on the roof. Thus driving- at a rash speed, the bus went up the motor-cycle and it was dragged along. It stopped at a sufficient distance.When the passengers and the P.Ws. alighted from the bus, it was found that it was Manzoor Hussain, A.S.I. The appellant-driver ran away from the spot.

5. The case was investigated by Muhammad Rafi, S.H.O. (P.W.9). On coming to know of the accident he soon reached the spot and after recording the statement of the complainant (EXh.P.A.) started investigation. He prepared rough sketch of the place of occurrence (Exh.P.H.). He, also prepared injury statement and inquest report (Exhs.P.J. and P.K.) and sent the body for post-mortem examination. He examined the eye-witnesses present at the spot. He secured blood-stained earth from the spot vide memo. (Exh.P.C.), motor-cycle (P.2) vide memo. (Exh.P.B.) and bus (P.1) vide memo. (Exh.P.D.). He also got prepared site plans (Exhs. PF and PF/1) from Muhammad Hussain, Draftsman.

6. In his statement at the close of the trial the appellant stated "The deceased was coming from the opposite direction and he was driving the motor cycle at a very high speed. The deceased hit the road-belt and he came under the back wheels of the bus which I was driving and was killed due to his own negligence. He produced Muhammad Hanif and Muhammad Hayat (D.Ws. 1 and 2) who claimed to be travelling in the bus of the appellant at the fateful time, to support his version. He also made statement on oath.

7. From the above narration of facts of the case it is admitted that the appellant was the driver of the bus which met with an accident at Multan Road, the deceased, A.S.I. was injured, died at the spot. The question, therefore, that remained to be determined is whether the deceased was done to death intentionally by the appellant or it was a pure case of accident and if so, whether the accident was due to the negligence of the deceased himself or the appellant was driving the bus rashly and negligently. Munawar Beg, H.C. (P.W.11) was examined as to motive. He was disbelieved by the learned-trial Judge. After having gone through his statement and the judgment, I am inclined to agree with the appreciation of the learned trial Judge.

8. Learned counsel for the appellant contended that Ashiq Hussain, Abbas and Muhammad Hussain, P. Ws., the eye-witnesses were close relatives of the deceased, they could not be expected to be present in the bus of the appellant at the time of occurrence, the deceased being an A.S.I. the witnesses had been called by the police and cooked up to depose falsely against the appellant. Let us ignore the statements of these witnesses and see whether any case is made out against the appellant.

9. Muhammad Rafi, S.H.O. (P.W.9) had prepared a rough sketch of the place of occurrence (Exh.P.H.). In cross-examination he told that the dead body was lying by the side of the front left wheel of the bus and the blood had fallen on the tyre of the bus. He was not further cross-examined on this aspect. The appellant himself admitted that the deceased was done to death as a result of accident with his bus. Both the D.Ws. were not known to the appellant, they even if passengers in his bus, could not have been possibly contacted to be produced in defence. They are not the residents of the place, where the occurrence took place. From the statement of the investigator and the site plans it is more than clear that the deceased was hit by the front wheel of the appellant's bus. Thus the version in defence that the deceased A.S.I. was coming from the opposite side, struck the intervening separating boundary of the two lanes of the road and fell on the back side of the bus under the hind wheel, is without any substance. Even if we have no evidence of the bus being driven) rashly, the negligence is very much there.

10. The upshot is that the charge under section 320, P.P.C. was correctly' concluded against the appellant. However, in the circumstances of the case the sentence of two years' R.I. and Diyyat as already determined by the learned trial, Judge would meet the ends of justice. Order accordingly. The appellant would have the benefit of the provisions of section 382-B, Cr.P.C. N.H.Q./N-109/l Sentence reduce