S. A. NUSRAT, J.-This acquittal appeal has been filed by the State against judgment dated 15th October, 1973, passed by the Additional City Magistrate Court No. XX, Karachi, acquitting the respondent of offences under sections 337 and 304-A, P. P. C.
2. According to prosecution on 25th March, 1971, at 5-15 p.m. The respondent, while he was driving a taxi on Frere Street, Saddar, Karachi, caused injuries to two children, namely, Nasreen and Isbaque, of whom the latter died.
The F.
1. R. Regarding the accident was recorded by S. H. O. Haider Zaman of Frere Police Station, Karachi on 25th March, 1971 at 10-30 p.m. Under sections 279/337 and 304-A, P. P. C., on the basis of a telephonic message received by him from one Muneer Ahmed who had reported the accident.
This message was entered in Station Diary. The said S. H. O. Visited the scene of accident and prepared a site-plan indicating the direction of the taxi, the spot where the accident had occurred and the place where the same had stopped after the impact and conducted necessary investigation.
3. The prosecution examined as many as nine witnesses while the accused produced three witnesses in defence. Mr. Agha Ghulam Ali, learned counsel for the State, vehemently challenged the findings of the learned, trial Court and took us through the evidence to show that the acquittal had resulted in miscarriage of justice because there was sufficient unimpeachable evidence on record which warranted conviction.
4. According to the Medical Report and deposition of Dr. Muhammad Iqbal Kamaluddin, the deceased Ishaque son of Saleemuddin, aged 7 years had died of head injury and shock.
5. The respondent in his statement before the trial Court did not deny the accident but pleaded that he was not at fault. He stated that the speed of the taxi was slow and normal and a boy and a girl, who were -coming from street, themselves hit against the back aside of the taxi. He .Further stated that steering of the taxi was not in proper order.
6. The occular testimony in the case consists of P. Ws. Abdul Majid son of Suleman, Abdul Majeed son of Karim Bux and Mst. Ghafooran wife of Irfan Shah. Of these witnesses we would not place reliance on the statement of Abdul Majeed son of Suleman who may be an interested witness because his nephew was also injured in the accident.
7. Abdul Majeed son of Karim Bux stated that some children were standing on the side of his cabin when he saw a taxi coming with a very fast speed from Saddar side which hit the two children and then entered a but. He saw a girl aged 9/10 years bleeding from her head and a boy lying injured under the rear wheel of the taxi belonging to the accused. Both the boy and girl were hit on the Katcha Road by the taxi. The taxi dashed into a but next to his cabin and its speed was so fast that it had dragged the boy along towards the but. He further stated that he was so shocked by the accident that he closed his shop and went away. In his cross-examination he stated that there were very few vehicles plying on the road and he confirmed having seen that the taxi had dragged the children towards the cabin. He denied the suggestion that his attention was attracted when the taxi had actually dashed into the but. He also denied the suggestion that the accident had taken place when the children were crossing the road. He further confirmed that the boy and the girl were lying injured on the Katcha Road.
8. The other eye-witness was Mst. Ghafooran. According to her, she was present in her shop where she sold toys and other small items. According to her one boy and one girl had purchased some articles from her. She then saw one taxi coming in speed which hit both the children. One was hit and thrown aside and the other was dragged. The taxi then rushed into a shop made of mats run by a tailor and damaged the same. She identified the accused as driver of the taxi. She denied the suggestion that children were crossing the road when they were bit by the taxi. She later confirmed that the children were found in the Charpai-seller's shop from where they were removed. She was a natural witness of the incident and her testimony inspires confidence. Her statement was corroborated by Muhammad Usman son of Rahim Bux read with Mashirnama Exh. 1/B in whose hutment Shop No. 6 the taxi had entered dragging the boy. He stated that he was present in front of his shop when the accident had taken place. He also identified the taxi driver and stated that he bad stopped him as the driver wanted to run away with the taxi. In cross---examination he stated that the road was 8-10 paces broad but the accident had taken place in Katcha. This witness is also Mashir regarding the scene of accident (Exh. 1/B) which fully describes the scene of accident.
According to the said Mashirnama the taxi was found in Shop No. 6 belonging to Rahim Bux (father of this witness). The plan of the scene of the accident, which was prepared at the spot by P. W.
Haider Zaman, Investigating Officer, and was proved by him also confirms description of the scene of accident given by the witnesses. The prosecution also examined Motor Vehicle Inspector, Syed Rashid Hassan who had examined the taxi. He stated that foot brakes of the taxi and steering wheel and hand brakes were also out of order.
9. The evidence produced by the defence consists of witnesses who do not appear to be natural witnesses of the accident and do not inspire confidence. Muhammad Ishaque, D. W. 1 was an employee in the K. M. C. Workshop and stated that he was travelling in the taxi of the respondent along with one other person. He stated that he had seen that two children who were standing at the shop wanted to cross road by running and in order to save them the driver applied brakes which failed and the steering wheel of the taxi also failed, and the respondent, therefore, drove the taxi towards a mats and Charpai shop. In the examination-in-chief he had simply stated that there was another person with him in the taxi. In the cross---examination he identified the man being his uncle. This witness was a mistri by profession and repaired vehicles and had also allegedly repaired the taxi of the respondent.
The other D. W. Abdul Qayum was the uncle of D. W. Muhammad Ishaque who gave an identical version as his nephew. The testimony of this witness also does not inspire any confidence. His deposition in cross---examination is damaging to the case of the defence itself. According to him the taxi had first hit the children and then the Charpai shop and did not strike with any other obstacle. This would prove that the taxi had already defective brakes and it cannot be said that the brakes had failed suddenly on account of impact with some other article before hitting the children.
The last defence witness was one Jan Muhammad who while giving similar account, as the earlier two witnesses,, stated that the children had themselves hit against rear portion of the taxi. He further stated that the taxi driver drove the taxi towards huts where it stopped on the obstacle of stone. According to him the driver had told him that the brakes of the taxi had failed as also the steering.. This witness himself is driver by profession. He stated in his cross-examination that soon after the accident he had gone away to his house and no other conversation had taken place with the respondent except what was stated in examination-in---chief. He also stated that the accused did not know him before the day of the accident, yet he stated that the respondent had approached him a day earlier asking him to appear on his behalf as defence witness. He further stated that the respondent did not know his house and had gone to Company where he worked.
The witness is clearly a got-up witness and cannot be relied upon as against the eye-witnesses examined by the prosecution about whom it cannot be said that they had any motive of falsely implicating the respondent.
10. Mr. Agha Ghulam Ali, learned counsel for the State, apart from referring to the evidence discussed above, pointed out that the trial Court had completely failed to take notice of the serious defects found in the vehicle, namely the defective foot and hand brakes and steering wheel.
According to the learned counsel the manner in which the accident had occurred was itself telltale and confirmed recklessness and negligence on the part of the respondent. The action of the respondent in plying the taxi with defective foot and hand-brakes and steering wheel was itself fraught with danger and the respondent ran the risk of endangering human lives on a public road by plying a taxi with patent defects therein and driving such a vehicle with speed and dashing the same against by-standing children, dragging one of them into a pavement of hutment-shop, do go to prove rashness and negligence. The requirements of safe-driving may be inferred from provisions contained in section 99 of the West Pakistan Motor Vehicles Ordinance, 1965, which lays down as to what would constitute an offence of reckless and dangerous driving. The said section reads as under :- "(1) Whoever drives a motor vehicle at a speed or in a manner which is dangerous to human life or property, having regard to all the circumstances of the case, including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, and if the vehicle be a transport vehicle, with imprisonment which may extend to one year and with a fine which may extent to one thousand rupees."
Section 104 of the Ordinance further makes the driver of a vehicle liable to prosecution who drives or causes or allows to be driven in any public place a motor vehicle having a defect which the said person knows or could have discovered by the exercise of ordinary care and which is calculated to render the driving of the vehicle a source of danger to persons and vehicles using such places. If, therefore, any person drives a vehicle violating the above-mentioned provisions of the Motor Vehicles Ordinance, the infraction A thereof together with other evidence proving such infraction would justify the conclusion of rashness and negligence on the part of the driver o such a vehicle.
11. Mr. Gul Zaman, learned counsel for the respondent placed reliance upon Muhammad Siddique v.
The State (PLD 1958 Kar. 445and contended that the accident having occurred due to defects in its brakes, the respondent could not be held responsible for the same. In that case a boy-was knocked down by a passenger bus while crossing the road and had sustained injuries. The trial Court had convicted the driver on the ground that the accident had taken place due to inefficient and inadequate brakes and due :o improper speed.
On appeal the Appellate Court had reached the conclusion that the bus had defective brakes and this fact by itself constituted both rashness and negligence and the driver of the bus could have known that without proper brakes he was jeopardizing human life. The High Court had found, as a fact that the bus in question was running at a moderate speed and was on the right side of the road and the accident had taken place because the boy concerned ran to cross the road from the left side to the right side of the road. The prosecution evidence also disclosed in that case that the bus driver had applied brakes and the bus had stopped within 4/5 paces from the place of impact, and as such the defective brakes were not direct cause of the accident. It was held that the conviction was based merely on the ground of certain defects in brakes, and this fact alone could not lead to conviction under section 338, P. P. C. The facts of the said case were quite different and, therefore the same is distinguishable on facts and is of no help to the defence. The learned counsel further relied upon a judgment of this Court reported as Alt Mahammad v. The Date (PLD 1973 Kar.
427 ). In that case a car had dashed against a wall causing it to collapse and thereby killing one child and injuring another. It was found that the ti-rod of the vehicle was broken and there was no evidence indicative of cause of such breaking, Motor Vehicle Inspector was not examined nor any other prosecution witness was examined to prove by direct or presumptive evidence as to when ti- rod was broken. In the circumstances, probability of vehicle having dashed against wall on account of sudden breaking of ti-rod and consequential loss of control by driver was held, in the circumstances, not eliminated and the case of the prosecution was held to be doubtful resulting in the acquittal of the accused. This judgment also does not support the defence.
12. Considering the evidence as discussed above, the irresistible conclusion reached by us is that the respondent was responsible for causing the death of deceased Ishak and simple hurt to Nasreen by his negligent driving and he is, therefore, guilty of offences under section 337, P. P. C.
And section 304-A, P. P. C. We would, therefore, accept this acquittal appealand sentence the respondent to suffer R. I. For one year under section 304-A, P. P. C. And 3 months' R. I. Under section 337, P. P. C., both the sentence to run concurrently. As the accused/respondent stood acquitted he will be take into custody to serve the sentence.