1989 P Cr (PLP)

(c) Penal Code (JU.V of 1860)‑‑ ‑‑‑Ss. 279 & 337‑‑Sentence, quantum of‑‑Accused remained in jail for about one month‑‑Appeals dismissed by Sessions Judge five years ago‑‑Held, sending accused to jail for serving two more months would not be conducive to justice and sentences already undergone would meet the ends of justice in circumstances. Muhammad Munir Akhtar Minhas for Petitioner. Ch. Muhammad Akram for the State. Date of hearing:24th Apri1,1989. Muhammad Riasat (petitioner in Criminal Revision No.78 of 1983), and Muhammad Nawaz (petitioner in Criminal Revision No.81 of 1983) on trial by a Magistrate for an offence under section 279, P.P.C. were convicted and sentenced to three months' R.I. and a fine of Rs.500 or in default thereof one month's S.I. each under section 279, P.P.C.; the latter was also convicted for the offence under section 337, P.P.C. and awarded three months' R.I and a fine of Rs.300 or in default thereof further S.I. for one month. Their appeals having failed in the Court of the learned Sessions Judge, they have filed the present revision petitions which are being disposed of together.

2. Sardar Muhammad Adam complainant (P.W.6) was going by his Car No.PRE‑1304 from Rawalpindi towards Peshawar side on G.T. Road, on 20‑8‑1981, and reached near Lawrencepur at 7‑30 a.m. From the opposite side truck No.RID 8086 and Wagon No.RIJ 475, respectively driven by Riasat and Muhammad Nawaz petitioners, were seen approaching. The truck driver, either due to negligence or having gone to sleep, first swerved to his right and then to left upon which the complainant went on his extreme left, but m the meantime the wagon collided head on with his car as a result of which he was injured. On these facts the F.I.R. was lodged the same day at 12‑30 p.m.

3. The version given in the F.I.R was supported at the trial by Sardar Muhammad Aslam complainant (P.W.66) corroborated by Sher Muhammad and Muhammad Riaz (P.Ws. 2 and 4) who were present on the road side and wanted to cross it to 'fetch water from the hand‑pump on the opposite side. They are independent and disinterested witnesses. The accident is an admitted fact. It is also clear from the statements of the witnesses that it was the wagon which had hit the complainant's car and injured him. The site plan (Exh.P.G.) makes the position all the more clear the learned Magistrate correctly appreciated that due to the negligence of Riasat petitioner, the truck driver, who swerved at the place e of occurrence and his close follow up by Muhammad Nawaz petitioner in his wagon resulted in the accident. The negligence of the truck driver and the rashness and negligence of the wagon driver were proved. Hence there is no reason to differ with or interfere with the conclusions on facts recorded by the learned trial Court or appellate Court.

4. Muhammad Nawaz petitioner was simultaneously convicted for the offences under sections 279 and 337, P.P.C. There was accident and the complainant, as observed above, was injured. Hence conviction only under section 337, P.P.C. could have been recorded. The offence under section 279 merged in the one under section 337, P.P.C. This very legal position finds support from the case as reported in Bagho Prasad v. Emperor A I R 1939 Patna 388 anti Muhammad Hanif v. State 1984 P.Cr. L J 746.

5. The result is that the revision filed by Muhammad Nawaz petitioner is partly allowed and his conviction and sentence under section 279, P.P.C. are set aside. His conviction under section 337, P.P.C., and that of Riasat petitioner, under section 279 ibid are maintained. They have been behind the bars a little less than a month and after five years of dismissal of their appeals by the learned Sessions Judge sending them to jail for two more months would not be conducive to justice. The sentence already undergone and the fine imposed would suffice in the case of Muhammad Riasat and the sentence already undergone and a fine of Rs. 500 or in default thereof two months' S.I. would meet the ends of justice in the case of Muhammad Nawaz petitioner. Order accordingly.

6. The revision petitions stand disposed of. S.A./M‑1310/L Sentence reduced.