' MUHAMMAD SADIQ LEGHARI, J.---Appellant Muhammad Yousuf, driver of mini-bus was tried along with his co-accused Tariq Mehmood and convicted for offence under sections 320 and 337-G, P.P.C. By learned First Additional Sessions Judge, Karachi-East vide judgment dated 29-4-2004. He was awarded sentence of five years' R.I. With direction to pay diyat amounting to Rs,275,762 to the legal heirs of the deceased Muhammad Nasir for offence under section 320, P.P.C. And for one year R.I. With the fine of Rs,1,000 for offence under section 337-G, P.P.C.
2. Facts of the case are that on 9-10-1997 deceased Muhammad Nasir and Muhammad Aslam were sitting in a Pick-up No,JE-6808 being driven by Tariq Mehmood the appellants co-accused.
The said driver parked the vehicle bearing in the middle of the road near Itrani Nadi, Qayoomabad, Karachi. After that the Minibus No,JE-3603 being driven by appellant Muhammad Yousaf rashly and negligently came there and hit the Pick-up. In the result, thereof Muhammad Nasir and Muhammad Aslam were injured. They were taken to the hospital. Muhammad Nasir succumbed to the injuries.
3. Information about the incident was given to A.S.-I. Muhammad Aslam Warraich of Zaman Town police station who visited the place of incident and registered the case being himself complainant on behalf of the State. After the investigation both the drivers namely Tariq. Mehmood and Muhammad Yousaf were sent for trial. They pleaded not guilty to the charge and the prosecution was invited to produce their evidence. The prosecution examined injured witness Abdul Rehman besides complainant/ Investigating Officer Muhammad Aslam. Then P.C. Aijaz Ahmed was examined on the question of non-availability of other witnesses. After that the learned trial Court pronounced judgment dated 29-4-2004 awarding the conviction and sentence to the appellant as mentioned above. His co-accused Tariq Mehmood had absconded away after grant of bail to him during the trial therefore his case was kept on dormant file.
4. Muhammad Yousuf appealed against the conviction/sentence. Mr. Zafar. Ahmed Khan, the learned Advocate representing the appellant contends that in fact the entire responsibility of the incident lies upon Tariq Mehmood, who even according to the prosecution, parked vehicle in the middle of the road. The learned Advocate further contended that the evidence shows that the appellant was driving the bus in normal speed and carefully but all of a sudden encountered with unexpected situation finding one bus/Pick-up parked in the middle of the road. In such a situation the appellant cannot be held responsible of rash and negligent driving specially when he made efforts to stop his vehicle and avoid collusion. The learned Advocate stated that the fact is that the appellant diverted his vehicle due to which only back portion of right corner of the parked vehicle was hit. He also contends that the brakes of the bus being driven by the appellant had also failed at the moment when it were applied all of sudden and with full pressure, in order to avoid the accident.
5. The last contention of the learned Advocate was that the learned trial Court even did not extend benefit of section 382-B, Cr.P.C. To the appellant.
6. Mr. Sardaruddin Qureshi, learned State counsel has supported the conviction and sentence half- heartily saying that efforts made by the appellant do show that vehicle was driven vigilantly and not negligently.
7. In fact the argument regarding the vigilance of the appellant do not get support from the evidence specially the deposition of injured witness Abdul Rahman. No such suggestion was put to him in cross- examination. His examination>in-chief does not show any vigilant act to have been performed by the appellant.
8. Although the fact that Tariq Mehmood had stopped the vehicle in middle of the road and tlie appellant was Caught in the situation unexpectedly deserves consideration but that too does not take his case out of the scope of rashness and negligence. Had he been careful and vigilant he would have successfully averted the accident. However the question of quantum of the sentence of imprisonment deserves to be considered in the circumstances. Since the appellant is penalized and directed to pay diyat to the legal heirs of the deceased, the quantum of the imprisonment deserves to be revised in the facts and circumstances of the case. The same is hereby modified and reduced from 5 years to 4 years for the offence under section 320, P.P.C. And the sentence awarded to him for section 337-G, P.P.C. Is maintained. Both of the sentences are to run concurrently. Benefit of section 382-B, Cr.P.C. Is hereby extended to the appellant in respect of both of the convictions. With this order the appeal is disposed of.