2001 SCMR 1416 (PLP)

‑‑‑‑S.320‑‑‑Punishment for "Qatl‑i‑Khata" by rash or negligent driving‑‑ Section 320, P.P.C. does not admit for its attraction a qualification that a person should die on the road on account of accident, which is against law and is not contained in any of the provisions of the Penal Code‑‑‑Only ingredient is "Qatl‑i‑Khata" by rash and negligent act‑‑‑Consideration of being on a road on foot or inside a vehicle is not there and should not be read into the law. (e) Evidence‑‑‑ ‑‑‑‑ Appreciation of evidence‑‑‑Principle‑‑‑If no finding is given with regard to the truthfulness or otherwise of a witness,. his statement has to be accepted with regard to the truthfulness or otherwise of a witness. Sh. Muhammad Naeem, Advocate Supreme Court for Appellant. K.G. Sabir, Advocate‑on‑Record for Respondent No.

1. Nemo for Respondents Nos.2 &

3. Date of hearing: 13th and 14th March, 2001. RASHID AZIZ KHAN, J. ‑‑‑Leave to appeal. was granted by the Court on 11‑11‑1995 to examine whether the learned Judge of the High Court has rightly interpreted section 302, P.P.C.

2. Facts leading to granting of leave to appeal are that a case under sections 279/320/337/427, P.P.C. was got registered by Nasim Shah with Police Station Shahbaz Garhi with the allegation that a Flying Coach bearing No.PKJ‑3919 coming from Mardan side in a rash and negligent state collide with complainant's ox which died on the roadside arid thereafter collided with a tree resulting in the death of one Imtiaz Ahmed and injuries to number of passengers. After usual investigation, challan was submitted in Cour which came up for hearing before Additional Sessions Judge, Mardan who vide his judgment dated 25‑1‑1995 found respondent No.l, Taus Khan guilty under section 320, P.P.C. and sentenced him to three years R.I. with direction to pay Diyat of Rs.2,20,000 in six equal instalments. The convict appealed. A learned Judge of Peshawar High Court vide his judgment dated I1‑6‑1995 accepted the appeal and set aside the conviction and sentence, State, through Advocate‑General, N.‑W.F.P., filed the present appeal challenging the judgment of learned Judge in Chambers whereby respondent was acquitted.

3. We have heard both the sides at length and perused the file. Learned Judge in Chambers, while accepting the appeal, mainly was influenced by the word "Qatl" defined in section 300 P.P.C. According to learned Judge there was no substitute of word "qatl" in English dictionary and word "murder" was "Qatl‑i‑Amd" which was different from "Qatl‑i‑Khata". Learned Judge in Chambers also proceeded to hold that since a passenger travelling in the Flying Coach was killed, inside the vehicle and not on the road, therefore, ingredients of section 302, P.P.C. were not attracted and there was no other provision which could take care of such a situation.

4. We have carefully considered the reasoning advanced in the judgment impugned but are constrained to observe that they are not in consonance with the established principles of criminal jurisprudence. As fat the word "Qatl" is concerned, it obviously means "murder" or it can also be defined as "homicide". It is established principle of criminal jurisprudence that "homicide" is of two categories. First is "culpable homicide which amounts to murder" and other is "culpable homicide which does not amount to murder". The framers of Penal Code were conscious of this difference that is why sections 302/304‑A were incorporated in the P.P.C. the equivalent o1 which now is section 302(a), (b) and (c) and section 320, P.P.C. There is no dearth of judgment on the point that cases which fell under section 304, P.P.C. earlier now are covered by section 302((), P.P.C. Similarly section 304‑A, P.P.C. has been replaced by section 320, P.P.C. which reads l~ as follows:‑‑ "

320. Punishment for Oatl‑i‑Khata by rash or negligent driving.‑ Whoever commits Qatl‑i‑Khata by rash or negligent driving shall, having regard to the facts and circumstances of the case,‑in addition to Diyat, be punished with imprisonment of either description for a term which may extend to ten years."

5. A bare perusal of section 320, P.P.C. indicates that there are certain ingredients mentioned therein for awarding punishment. An offence under section 320, P.P.C. would be constituted only if all the ingredients are present. First of all there should be rash and negligent driving. Learned Judge in Chambers has erred in law by holding that the word "driving" has not been defined. In other words learned Judge in Chamber wanted to extend the scope of this section to a particular type of driving otherwise this section does include the act of driving from a cycle up to heavy vehicle. In the instant case the allegation was a rash and negligent act by a person who was driving a Flying Coach. In order to determine whether the driving was rash and negligent act attending ‑circumstances have to be looked into. In the instant case speed can very easily be determined by the fact that the vehicle went out of control hitting an ox which died at the spot and thereafter collided with a tree with such velocity that a person sitting in the Flying Coach died immediately and a number of passengers were injured. This shows that the learned Judge had erred in law by holding that prosecution failed to prove rash and negligent driving.

6. The reasoning that section 320, P.P.C. can be attracted only if a person on the road dies op account'of accident is also against the law. Such a qualification is not contained in any of the provisions of Penal Code. The only ingredient is "Qatl‑i‑Khata" by rash and negligent act. Consideration of being on a road on foot or inside a vehicle is not there and should not be read into the law.

7. We have also noticed that there has been misreading as well as non reading of evidence. There was no basis for the learned Judge in chamber's to come to the conclusion that the ox was tied on the road which met with the accident and there was no rash and negligent driving. Complainant in his statement on oath had specifically stated that respondent No. 1 was driving the Coach in a rash and negligent manner and his (complainant's) ox had died which was tied on the road side. Without giving any finding with regard to the truthfulness or otherwise of a witness, the statement has to be accepted. The statement of the witness was not even challenged by the defence on these points.

8. In view of the above discussion we accept the appeal, set aside the' judgment of the High Court and restored that of the trial Court. Taus Khan, respondent No.l, shall be taken into custody for serving out remaining part of this sentence. N. H. Q./S‑112/S Appeal accepted.