' Applicant Mohammad Akhtar son of Mohammad Qasim, who was convicted under section 304-A, P. P. C. By the Addl. City Magistrate, Karachi and sentenced to suffer R. I. For two years, had filed an appeal before the VI Addl. District and Sessions Judge, Karachi. The appeal was rejected and therefore he has filed this revision application under sections 435 and 439, Cr. P. C. Before this Court.
2. The facts of the case briefly stated are as under :- ' On 15th May 1971 the applicant was driving a taxi bearing No, KAX 2707 along Andrew Road from Kenmare and going towards Bhutto Village when a boy of about 10 years of age got knocked down.
The boy was dragged for some distance till the applicant stopped the taxi by applying the brakes.
It was the case of the prosecution that the incident was witnessed by two persons, namely Abdul Sattar and Ali Gohar, who live in the neighborhood. Moosa uncle of the boy took him with the help of the applicant to the Civil Hospital in the same taxi. The boy died soon after reaching the hospital.
3. The applicant pleaded not guilty to the charge under section 304-A, P. P. C. At the trial. He professed his innocence and stated that he was driving the taxi at a slow speed and the boy had suddenly crossed the road running after a kite, dashed against his taxi and had been injured. On behalf of the applicant it has been urged that the trial and appellate Courts failed to consider whether the applicant was guilty of any rash or negligent act. It is contended that the word "speed" had been confused with rashness and negligence.
' A perusal 'of the record of the case would show that both the eyewitnesses, namely Abdul Sattar and Ali Gohar had stated that the applicant was driving the taxi on the Andrew Road which is about 10 feet wide, at a high speed. There is also evidence of these witnesses in whose presence the sketch of the scene of occurrence was prepared that there were 17 ft. Long skid marks on the road. However, the aforesaid evidence cannot be considered to prove that the applicant was driving that taxi in a rash and negligent manner. The learned counsel for the applicant has pointed out that even the allegation of two eye-witnesses that the taxi was being driven at a high speed is vague, in that, they apparently have no concern with automobiles or cars, their evaluation as to what is "high speed" may not tally with the generally accepted notions. He further pointed out that the fatal accident took place on a public road and there is nothing in the evidence on record to show that there was any congestion of traffic at the time. P. W. Abdul Sattar on the contrary had admitted in his cross examination that there was no vehicle other than the taxi of the applicant accused on the spot. The other eye-witness also stated in his cross-examination that the road is a thoroughfare and that at the time there was no other person on either side of the road.
' P. W. Draz Khan, the Motor Vehicle Inspector, certified that there was no mechanical or other defect in the vehicle.
Driving a car at high speed cannot be considered as a rash and negligent act as modern technology provides, for reasonable safeguard of stopping the vehicle within known distance and time. In order to prove rashness and negligence by the driver the prosecution had to establish that he failed to take proper care by omitting to take some action through which he could have avoided the accident.
' There have been a number of judicial decisions on the point that high speed ipso facto does not amount to rashness or negligence on the part of the driver. Reference in this respect is invited to the decision reported in Noor Khan v. The State (1). In that decision it was inter alia observed that conviction under section 304-A of Pakistan Penal Code requires that some rash or negligent act on the part of the accused must be conclusively established by direct evidence. In the decision reported in State v. Mohib Gul (2) it was,inter alia, observed that criterion to determine rash and negligent driving lies in finding out whether upon evidence on record a person can be said to have been driving with due care and caution or else had been negligent. In the instant case that aspect of the matter does not seem to have been enquired into and the evidence on
(1) 1974 P Cr. L J at p. 56 (2) PLJ 1974 Cr. C (Pesh.) 586 ' record is by no means conclusive. In another case of Jia Khan v. The State (1) a learned Single Judge of this Court (as he then was) held that an error of judgment in driving by the accused is a good defence for him and he cannot be held guilty of the offence of rash and negligent driving as punishable under section 304-A, P. P. C. In the instant case, however, there is even no evidence as to such error of judgment in driving by the applicant.
4. Having said so much about the legal aspect of the case as to rash and negligent driving, I may point out that the learned counsel for the applicant has, by reference to the record of the case, showed that the victim of the accident who according to medical evidence was a boy aged 10 years apparently was not wearing any garment covering lower parts of his body as the only covering found by the doctor was a shirt which was blood-stained and there was no lower garment. From this particular circumstance the learned counsel for the applicant argued that a normal boy of that age usually does not roam about the roads of the city without wearing trousers and therefore the victim in al! Probability was abnormal and the fact lends support to the version of the applicant that it was the boy who was responsible for the accident. In any case a perusal of the sketch of the scene of accident would show that on both sides of 10 feet wide road there is katcha ground so that there could have been no obstruction to the view of the driver and there was no necessity for any pedestrian even to use the pucca portion of the road.
' It was for the prosecution to prove that the accused applicant acted in a rash and negligent manner and in absence of such proof his conviction cannot be maintained.
5. 1, therefore, set aside the conviction and sentence of the applicant. He shall be set at liberty forthwith unless required in any other case.
(1) PLD 1974 Note 46 at p. 83