P L D 1959 (W (PLP)

Mazhar‑ul‑Haq for Advocate‑General for Respondent. Dates of hearing : 25th and 26th May 1959. Muhammad Din, while driving truck No. P J L 8191, on the Qasur‑Dipalpur Road towards Qasur, struck against bus No. 467 being driven towards Dipalpur by Ibrahim (P. W. 1) in the area of village Bahadurpur on the 1st May 1958, at about 6 a.m. Taj Din, who was sitting on the front seat of the bus had his shoulder fractured as a result of the impact. He died later.' The truck was being driven at a fast speed and though the driver of the bus took it to his extreme left, Muhammad Din petitioner did not give way and one of the angle irons of the body of the truck struck and damaged the right side of the bus. The peti tioner did not stop. Ibrahims turned round and pursued the petitioner and stopped him near the petrol pump. He proceeded to Police Station Sadar Qasur, which is five miles from the spot and made the report Exh. P. A at 8‑15 a.m. The petitioner has been sentenced to 18 months' rigorous imprisonment under section 338, P. P. C. and this is a revision on his behalf.

2. Ibrahim (P. W. 1), Muhammad Buta (P. W. 2), Qasim (P. W. 5) and Nizam Din (P. W. 7) have deposed to the incident. Muhammad Buta and Nizam Din were travelling in the bus and Qasim was standing on the road. Nizam Din (P. W. 7) deposes that the truck was travelling at a fast speed. Ibrahim (P. W. 1) and Nizam Din (P. W. 7) though say that the bus went to the kacha portion of the road, the truck did not give way and struck and damaged the right side of the bus. The statements of the eye‑witnesses establish that the petitioner did not stop the truck but went on while Ibrahim (P. W. 1) turned round and chased him. Both the Courts below have accepted the prosecution evidence. The lower Appellate Court has held that the conduct of the petitioner in running away strongly supports the prosecution case.

3. Taj Din was admitted in the hospital and was examined by Dr. Ata Ullah (P. W. 3). His left arm was fractured and he had another simple injury. He died two days later. Before his death, his statement Exh. P. D., was recorded by Muhammad Nazir, Head Constable (P. W. 4). He states that the truck was travelling at a fast speed and it struck against the bus in which he was travelling in the front seat, and the fault was that of the truck driver who did not stop and ran away.

4. The petitioner denied the prosecution allegations and stated that he was driving his truck at the usual speed of 20 miles an hour, and the accident happened as the bus driver was not used to left‑hand driving. He denied that lie had tried to run away. No evidence was led in defence.

5. The deceased in his statement Exh. P. D and Nizam Din (P. W. 7) have stated that the appellant was driving his truck at a fast speed. The other witnesses do not say so, not even Ibrahim who made this allegation in the first information report. Ibrahim and Nizam Din (P. W. 7) have deposed that Ibrahim took the bus to the kacha portion of the road but the appellant did not give way. This statement is belied by the plan Exh. P. C., prepared by K. Garden (P. W. 6) Seargent of the Traffic Police. The plan shows that the truck and the bus collided exactly in the middle of the road. It, therefore, appears that the bus did not go to the extreme left and neither the truck nor the bus wanted to give way or go off the pucca road, when in passing each other an angle iron of the body of the truck struck the right side of the bus, as a result of which the left arm of Taj Din was fractured by the force of the impact. I find no force in the contention that Taj Din had his arm outside. It was his left arm which could not be outside the window. In my view this is a case of contributory negligence on the part of the drivers of the truck and the bus, so that the responsibility for the injury to Taj Din rests on their shoulders. It is not a case of pure accident so that the petitioner is not responsible at all. The learned counsel for the petitioner argues that it is not true that the petitioner ran away with his truck, because if he had tried to run away he would not have been caught at the petrol pump, but it may be that he had to stop there to take petrol, as he had run short of it. As he has struck against the bus, his natural instinct must have been to go on as he did and as is proved by all the witnesses.

5. The learned counsel for the petitioner argues further that the statement Exh. P. D is not admissible in evidence as it is not formally proved that Ta j Din had died. Boota (P. W. 2) has stated that Taj Din had died and Muhammad Nazir Head Constable (P. W. 4) has also deposed that he recorded the state ment Exh. P. D of the deceased. There was no cross‑examination on this point. It is, therefore, established that Taj Din had died and the statement Exh. P. D is admissible under section 32 of the Evidence Act. The learned counsel further argues that the opinion of the witnesses that the petitioner was driving at a high speed is not relevant as the opinion is not covered by sections 45 to 51 of the Evidence Act. He relies on Ghulam Muhammad v. The Grown (P L D 1953 Lab. 260). 1n this case speed is not the material question for determination. Speed by itself on an open public highway where a vehicle is not crossing another vehicle or animals, where there are no travellers or obstructions so long as the vehicle is under, ' control may not amount to a rash act, but it is the duty of drivers, of public vehicles to slow down in crowded highways and thorough fares and when crossing animals, to see that the road is clear and visible when overtaking and passing other, vehicles, to keep the vehicle under control, and to give way for other, vehicles to pass or cross. The case here is one of culpable negligence, i.e., lack of caution and care which the petitioner should have exercised in crossing another vehicle, which is expected of the drivers of public vehicles with a view to safeguard against hitting the other vehicle and causing injuries to its passengers. It is a gross and culpable negligence if reasonable and proper precaution and care is not exercised in driving a vehicle, which al reasonable or prudent man ought to in order to safeguard against, hitting a crossing vehicle and causing injury to the passengers and the members of the public using the highways. Where there is such lack of care and caution, which it is the duty of a reasonable, or a prudent person to exercise, there is culpable negligence, which renders a person guilty under section 338, P. P. C. Persons who are driving public carriers, or vehicles, are expected to drive in such a way as to pass each other without striking and to have proper control of their vehicles on the road, so that there is no collision. This care was not taken by the petitioner in crossing the bus, as it was the angle iron of his truck which struck against the right side of the bus. The evidence of all the witnesses is conclusive on that point. If his vehicle was under his control and he had taken reasonable care and caution which it was his duty to exercise, he could have avoided the impact. The responsibility cannot thus be avoided by him. It is conceded by the learned counsel for the petitioner that the petitioner cannot avoid respon sibility in case of contributory negligence of the drivers. The conviction of the petitioner under section 338, P. P. C., is, there fore, maintained.

6. As it is a case of contributory negligence on the part of the two drivers of the vehicles, and as Siraj Din, brother of the deceassed, has applied for a compromise, which could not be allowed, I consider that the sentence already undergone and a fine of Rs. 100 will meet the ends of justice and order accordingly. In default of payment of fine he shall undergo rigorous imprison ment for three months. K. B. A./A. H. Order accordingly.