TARIQ SALEEM SHEIKH, J.---Facts giving rise to this petition are that Muhammad Bashir (PW-1) lodged FIR No. 468/2006 dated 01-11-2006 at Police Station Bhera stating that he was a resident of Mauza Hajka Sharif. On 27- 10-2006 at about 11:00 a.m. his wife Zarina Bibi (PW-4) and brother Muhammad Nawaz (PW-5) were coming from Bhera to Mauza Hajka on a bicycle. When they reached near Eidgah Bhera, Shahpur Road, a rickshaw which was driven by Petitioner Muhammad Yasir came from the back and rammed into their bicycle. Muhammad Nawaz and Zarina Bibi both fell down and were injured. Ghulam Rasool (PW-2) and Zahoor Elahi (PW-3), who were passing that way, took them to the Rural Health Centre Bhera which referred them to the Civil Hospital Sargodha.
Muhammad Bashir alleged that the Petitioner caused hurt to Muhammad Nawaz and Zarina Bibi while driving his rickshaw rashly and negligently for which he was liable to be punished. During investigation the police found that the Petitioner had committed the of fence. Report under section 173, Cr .P.C. was submitted accordingly .
2. The learned Judicial Magistrate indicted the Appellant on 21-05-2008. The Petitioner denied the charge and claimed trial. The prosecution produced six witnesses to prove its case. On the close of the prosecution evidence the Petitioner was examined under section 342, Cr.P.C. He altogether denied the occurrence and alleged that the Complainant had lodged a fake FIR against him. He neither got his statement recorded on oath under section 340(2), Cr.P.C. nor produced any evidenc e in his defence. On the conclusion of the trial, vide judgment dated 23- 07-2010, the learned Judicial Magistrate convicted and sentenced the Appellant as follows: Convicted under section 337-G, P.P.C. for causing Jurh Ghayr Jaifah Mudihah to Zarina Bibi and sentenced to pay Daman to the tune of Rs.20,000/-. Convicted under section 337-L(2), P.P.C. and sentenced to pay Daman to the tune of Rs.5000/- to Muhammad Nawaz.
Convicted under section 279, P.P.C. and sentenced to simple imprisonment for one year and fine of Rs.500/- and in default thereof to undergo simple imprisonment for a further period of 10 days.
3. The Petitioner preferred an appeal in the Sessions Court against his aforementioned conviction and sentence.
The learned Additional Sessions Judge, Bhalwal, partly accepted the appeal vide judgment dated 19-10-2010 detailed as follows: Conviction under section 337-G, P.P.C. was maintained but sentence of Daman payable to Zarina Bibi was enhanced from Rs.20,000/- to Rs.50,000/-. Conviction and sentence under section 337-L(2), P .P.C. was set aside. Conviction and sentence under section 279, P .P.C. was maintained.
4. The Petitioner has filed this revision petition under sections 435/439, Cr.P.C. to assail the vires of the above- mentioned judgment of the learned Additional Sessions Judge dated 19-10-2010.
5. In support of this petition the learned counsel for the Petitioner contended that the impugned judgment was not sustainable under the law. He argued that the Petitioner was a juvenile at the time when the alleged occurrence took place. The Petitioner was not tried under the Juvenile Justice System Ordinance, 2000. Therefore, the trial was vitiated. On merits, he submitted that the Petitioner was innocent and the Complainant had lodged a false FIR against him. The alleged occurrence never took place. The prosecution had failed to prove the charge. The learned Courts below had failed to appraise the evidence properly which had caused serious miscarriage of justice. Lastly , the learned Additional Sessions Judge had no jurisdiction to enhance the sentence of Daman from 20,000/- to Rs.50,000/- while exercising appellate jurisdiction. He prayed that this petition may be accepted and the Petitioner be acquitted.
6. On the other hand, the learned Deputy Prosecutor General assisted by the learn ed counsel for the Complainant vehemently opposed the aforementioned contentions and supported the impugned judgment. He prayed that this petition may be dismissed.
7. Arguments heard. Record perused.
8. The fundamental contention of the Petitioner is that his trial stands vitiated on the ground that he was a juvenile at the time of the alleged occurrence and was not tried by a Juvenile Court under the Juvenile Justice System Ordinance, 2000. Perusal of the record shows that the Petitioner did not claim juvenility during the trial. He raised this plea for the first time in his appeal before the learned Additional Sessions Judge. Then he abandoned it at the time of filing the instant revision petition before this Court which is evident from the fact that it is conspicuously missing in this petition. However , during the course of final hearing of this case today he urged it again. It is by now well settled that where a accused claims minority he must take such a plea at the earliest available opportunity .
Further , an adverse inference would be drawn against him in the event of delayed claim. In "Muhammad Aslam and others v . The State and another " (PLD 2009 SC 777 ), the Hon'ble Supreme Court of Pakistan ruled: "...Where an accused claims minority then such a plea must be taken by him at the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the Courts at the fag end of the trial or at the appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner ."
In the above judgment the apex Court further observed: "It was the convict himself who had chose n a rather late stage of the trial, i.e. during the course of his examination under section 342, Cr.P.C., to lay claim to minority . Where was, in the circumstances, an occasion or opportunity for the prosecutor or even for the Court to put the entry of his birth in the relevant Register , to him during the said statement? Punishing the prosecution in such a situation would be giving premium to a party for his own follies which could not be approved. Secondly , the special plea of minority , in order to escape death penalty , had been taken by the accused. Onus thus lay on him to prove the said fact beyond all doubts. The accused could not be deemed to have discharged the said burden by merely placing a School Leaving Certificate on record and more so when no opportunity had been provided to the other side to test the veracity or the genuineness of the said document or the contents thereof. Thirdly , the accused, might well be a favorite child of law but then this favoritism could not be permitted to be extended to an extent where the legal requirements had to be ignored and sacrificed."
9. The above view was reiterated in the case of "Muhammad Raheel alias Shafique v. The State " (PLD 2015 SC 145). Accordingly , the first contention of the learned counsel is repelled.
10. Now I advert to the merits of the case . The FIR was lodged at the instance of Muhammad Bashir (PW-1) who alleged that on 27-10-2006 at about 11:00 a.m. the Petitioner caused hurt to Muhammad Nawaz and Zarina Bibi while driving his rickshaw rashly and negligently . The prosecution produced two independent witnesses, namely , Ghulam Rasool (PW-2) and Zahoor Elahi (PW-3), and both the injured persons, namely , Zarina Bibi (PW-4) and Muhammad Nawaz (PW-5) to prove the charge against the Petitioner . They were coherent on all material aspects.
All of them testified that the Petitioner was driving the rikshaw rashly and hit the bicycle which Zarina Bibi and Muhammad Nawaz were riding. Further , there was no fault of Muhammad Nawaz in the accident. The statements of these witnesses inspire confidence. All of them stood the test of cross-examination and the Petitioner could not extract anything from them that could favour him. None of these witnesses had any reason to falsely implicate the Petitioner in this case. The ocular account was fully corroborated by medical evidence furnished by Dr. Noor-ul- Ameen (PW-6). I am, therefore, inclined to agree with the learned Courts below that the accident took place due to the negligence of the Petitioner .
11. The next question that arises for cons ideration is that of conviction and sentence of the Petitioner . The learned Additional Sessions Judge has recorded a conviction against him under section 337-G, P.P.C. as well as section 279, P .P.C. This could not have been done. Section 279, P .P.C. reads as under:
279. Rash driving or riding on a public way.---Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to two years or with fine which may extend to three thousand rupees, or with both.
This section is attracted where --
(i) a person drives a vehicle or rides on a public way;
(ii) such driving or riding must be rash or negligent, and
(iii) it should endanger human life or is likely to cause hurt or injury to any person.
On the other hand, section 337-G, P .P.C. ordains: 337-G. Punishment for hurt by rash or negligent driving.--- Whoever causes hurt by rash or negligent driving shall be liable, to the arsh or Daman specified for the kind of hurt 'caused and may also be punished with imprisonment of either description for a term which may extend to five years as ta'zir .
12. A bare reading of the two provisions would show that they apply to two different situations. An offence is committed under section 279, P.P.C. where the rash or negligent driving or ride on a public way endangers human life but where such driving actually causes hurt to a person, section 337-G, P.P.C. would be attracted. The offender cannot legally be convicted under sections 279, P.P.C. and 337-G, P.P.C. B simultaneously . In ,"Ragho Prasad v.
Emperor " (AIR 1939 Pat. 388), a Division Bench of the Patna High Court ruled that "imposition of separate sentences would not be justified where the acts constituting two different offences form part of the same transaction against the same accused." The dictum laid down in the Ragho Prasad case was followed in "Badshahzada v. The State " (1993 PCr.LJ 699), "Haris Khan v. The State " (PLD 1993 Pesh. 146) and "Muhammad Hanif v. The State " (1984 PCr .LJ 746 ).
13. In the instant case, it was proved that the Petitioner actually caused hurt to Zarina Bibi and Muhammad Nawaz by his rash and negligent driving. The offence would squarely fall within the ambit of section 337-G, P.P.C. The learned Additional Sessions Judge erred in convicting him under sections 279, P.P.C. and 337-G, P.P.C. simultaneously . Resultantly , the Petitioner's conviction under section 279, P .P.C. is set aside.
14. While convicting the Petitioner under section 337-G, P.P.C. the learned trial Court had sentenced him to pay Daman in the sum of Rs.20,000/- to Zarina Bibi. The learned Additional Sessions Judge enhanced the 'amount of Daman to Rs.50,000/-. The contention of the learned counsel for the Petitioner that the learned first Appellate Court had no jurisdiction to enhance the quantum of Daman carries weight. Section 53, P.P.C. clearly states that Daman is one of the punishments that can be handed down to an offender under the Pakistan Penal Code, 1860. In the present case, only the Petitioner had preferred an appeal against the judgment of the learned trial Court dated 23- 07-2010. The Complainant did not file any revision there against for the enhancement of his sentence. Therefore, the learned Additional Sessions Judge while exercising appellate jurisdiction was not competent to enhance his sentence in view of clause (b) of section 423(1), Cr .P.C. The enhancement in question is accordingly struck down.
15. In view of the foregoing, this revision petition is partly allowed . The Petitioner's conviction and sentence under section 279, P.P.C. is set aside. His conviction under section 337-G, P.P.C. is maintained but his sentence of Daman is reduced to Rs.20,000/- the amount originally awarded by the learned trial Court and the enhancement made by the learned Additional Sessions Judge is set aside.
16. The sentence of the Petitioner was suspended by this Court vide order dated 22-11-2010 and he was released on bail. His bail is hereby extended for a further period of six months subject to his furnishing fresh bail bond in the sum of Rs.20,000/- with one surety in the like amount to the satisfaction of the trial Court to enable him to pay Daman which shall be paid within a period of six months in two equal quarterly installments. In case he fails to make payment of Daman as aforesaid, he shall be taken into custody and kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the amount is paid in full. The Daman shall be paid to Zarina Bibi (injured).