1988 PLP r (PCRLJ)

This is an appeal against the judgment of learned Ex-Officio Additional Sessions Judge, Karachi, dated 4-10-1987, whereby he convicted the appellant under section 304, P.P.C. and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.5,000 or in default thereof R.I. for three months more.

2. The facts of the case in brief are that on 28th August, 1985 at about 5-50 p.m. the present applicant was driving Truck No. 810-817 at a high speed through Syed Mir Hussain Ali Road, when it ran over a boy Sajid Mahmood son of Nazar Muhammad, who died instantaneously. The appellant left the truck and ran away. The incident was witnessed by P.W. Saleem, Yousuf and others. S.I.P. Naseer Ahmed of Police Station Kalakot registered the F.I.R. The dead body was sent for post-mortem examination and after usual investigation the case was challenged in the Sessions Court and the appellant was convicted as above.

3. The fact that the appellant was driving the truck and that the boy died because he was crushed under the truck is not disputed.

4. Mr. Mumtaz Hussain Shah learned counsel for the appellant contended that the evidence on record did not show, that either the appellant drove the vehicle with the intention and knowledge that by such driving he would kill the deceased or that he drove his vehicle so rashly or negligently so that he may be culpably liable for this accident. It is contended that the appellant was driving the truck very cautiously, but the deceased, who was a young boy, while flying kite, tried to cross the road and, therefore, came under the rear wheel of the truck.

5. As pointed above, there is evidence of two eye-witnesses namely, Saleem and Yousuf. P.W. Saleem states that while he was standing at the milk shop, all of a sudden the truck appeared from Mir Mohammad Hassan Ali Road, dashed the child with'-bumper's side and, thereafter crushed the child from back wheel. In his cross-examination he has further stated that Hassan Ali Road is a small road and only one vehicle can pass. He has further stated that the truck was on the wrong side.

6. P.W. Yousuf has stated, that the truck was coming with high speed and the child came from the Gali, who was crossing the road, and the truck hit the bumper to the said child and ran away, due to which the child died on the spot. In cross-examination he has stated that the road is twelve feet wide.

7. Both the witnesses have admitted that they are from the same Mohalla as the father of the deceased, but they have denied any relationship with the father of the deceased. In the cross-examination P.W. Saleem has stated, on the suggestion of the learned counsel for the appellant, that the accused also resided in the same Mohalla. Thus, all the parties viz. the accused/ appellant deceased and the witnesses belong to same Mohalla.

8. Under the circumstances the learned trial Judge has rightly held that the witnesses could neither be considered as unnatural witnesses nor could they be considered as interested witnesses.

9. The appellant has examined himself and he has stated on oath that he was driving the truck at the speed of 10-12 miles an hour, when one boy aged 4-5 years came under the back wheel of truck and may have been pushed by some body. He further states that people gathered and wanted to beat him, therefore, he ran away. He has examined D.W.Jan Muhammad in his defence. He also states, that some boys were flying kite in the street when the truck reached the street, a boy came under the back side wheel of the truck. The driver applied the brake to stop the truck. At that time people gathered there and told the driver to run away otherwise people will kill him.

10. The defence witness does not belong to the Mohalla, but states that at that time he was standing near the milk shop. It may be pointed, that it is not suggested to any of the prosecution witnesses, that the people tried to kill the appellant or that they advised him to run away and, therefore, he ran away. This plea explaining the running away of the appellant is an afterthought. Prima facie abscondence indicates guilty mind or guilty knowledge. The fact remains that the street through which the truck passed is a narrow street about 12 feet wide. If the appellant is to be believed that at that time certain boys were flying kites on the road, it was more obligatory upon him to drive the vehicle more slowly and cautiously. Even on his own admission he was driving the vehicle at a speed of 10-12 miles an hour which cannot be considered as a cautious and careful driving in such a narrow street and under such circumstances. Therefore, there can be no doubt that the applicant was driving the truck rashly and negligently.

11. However, the contention of the learned counsel for the appellant that- the offence, if any, would not fall under section 304, P.P.C. but under section 304-A, P.P. C. appears to have much weight. He I has relied upon the case of Arshad Muhammad v. The State 1986 PCr.LJ 330 wherein the then learned Chief Justice of this Court has differentiate between section 304, P.P.C. and section 3G4-A, P.P.C. It has been observed as under:- "While section 304-A, P . P . C . speaks of an act which is rash or negligent, section 299, P.P.C. speaks of the doing of an act with the knowledge that such act or omission is likely to cause death. The distinction no doubt is thin but it is substantial. While rash or negligent driving does not contemplate mens rea in the sense that the man knew that he was likely to cause death, section 299 contemplates guilty mind of person who by doing an act is likely to cause death. In either case the mind of the doer of the act provides sufficient guidance to arrive at the conclusion whether the act was merely rash or negligent or the act was of the nature which should normally put the doer of the act in the category of such persons who know the act is likely to result in death." I am in respectful agreement with the above observations and find that it fits in with the fact of the present case. Neither the evidence nor the act of the appellant shows that he had knowledge that his driving the truck at the speed of 10-12 miles an hour was likely to result in the death of the deceased. It is not alleged that he had any enmity with the deceased or his father. Considering all the facts discussed above, I alter the conviction awarded to the appellant to one under section 304-A , P.P.C. and reduce the sentence of rigorous imprisonment to three years' R.I. and also reduce the fine to Rs.3,000 or in default of payment of fine the appellant to further undergo R.I. for three months. If the fine is realised, it may be paid to the father of the deceased as compensation as ordered by the learned trial Court. With the above modification the appeal is dismissed. S.A./M-400/ K Order accordingly