1. The applicant has filed this Revision Application under sections 435 and 439, Cr. P. C. Against the judgment of Sessions Judge, Thatta, dated 3rd October, 1981 whereby the learned Judge had dismissed the appeal of the applicant against his conviction and sentence for offence under section 304-A, P. P. C. Recorded by Civil Judge and F. C. M., Thatta by his judgment, dated 17th March, 1981. The applicant was sentenced to R.
1. For 12 months and fine of Rs, 1,000 or in default R. I. For six months.
2. The facts of the case are that on 10th April, 1979 complainant Sher Khan was going to Karachi from Thatta driving a truck loaded with vegetables. P. W. Taj Muhammad was cleaner of this truck. P. Ws.
3. Noor Muhammad, Chutto and deceased Hashim were owners of the vegetables and were also travelling in the same truck sitting with the driver on the front seat. At about 10-30 p. m. When the truck was at mile No, 34/44, another truck came from the opposite side, that is, Karachi, which was loaded with iron bars. When the two trucks were on the point of crossing each other, iron bars of the Karachi truck, which were projecting outside the body of the truck, hit the wind screen of the complainant's truck and pierced into the chest of Hashim who was sitting near the complainant in his truck on the front seat. Hashim died at the spot as a result of impact of the iron bars.
4. Complainant Sher Khan went Dhabeji Police Outpost and lodged report at 2-30 a.m. The same night.
5. Mr. M. Afzal A. S. I. Recorded the F. I. R. And went to scene of offence. The dead body of Hashim was sent to Thatta Hospital for post-mortem examination. Mashirnama of wardat was prepared in presence of mashir Rahim Dad. The A. S.-I. Recorded statements of P. Ws. Noor Muhammad, Taj Muhammad and Chutto and arrested the applicant who was said to be driver of the truck which was coming from Karachi side in which iron bars were loaded. After investigation the case was challaned before Civil Judge and F. C. M., Thatta.
6. Before the trial Court complainant Sher Khan (Exh. 2), Noor Muhammad (Exh. 3), Taj Muhammad (Exh. 4) and Chutto (Exh. 6) were examined on the point of accident. P. W. Rahim Dad (Exh. 5) was mashir while Mr. Muhammad Afzal A. S. I. (Exh. 7) is the Investigation Officer.
7. P. W. Sher Khan has given the same story as stated above and has further deposed that the applicant was driving other truck in which iron bars were loaded and that he had given his name as Muhammad Haroon, soon after the incident. Many other people had collected there. P. W. Noor Muhammad who was in the same truck as the complainant does not support the complainant and states that he did not see the driver of the other truck. P. W. Taj Muhammad categorically states that the driver of other truck was not present at the spot. He further states that the other truck which was loaded with iron bars was standing away on its own side in the Katcha. He further stated in his cross-examination as under "It is not correct to say that the present accused was driving the other truck. It is correct that our truck was standing in the middle of the road while the other truck was on its own side of the road." P. W. Chutto stated that the present applicant was not the driver of the other truck. Thus, all three witnesses who were travelling with complainant Sher Khan in the same truck, have contradicted him on the fact that the applicant/accused was driver of the other truck in which iron bars were loaded.
8. It would appear that the evidence of complainant Sher Khan (Exh. 2) that the accused was driving the other truck coming from Karachi, has been belied by P. Ws. Noor Muhammad (Exh. 3), Taj Muhammad (Exh. 4) and Chutto (Exh. 6) who were travelling with Sher Khan in his truck at the time of the incident. They have categorically stated that the applicant was not present at the sopt nor was he driving the other truck. The learned trying Magistrate and the First Appellate Court have not given cogent reasons for discarding the evidence of the last mentioned three witnesses, who were co-travellers with Sher Khan in the same truck which the latter was driving.
9. Moreover, the evidence of P. Ws. Noor Muhammad, Taj Muhammad and Chutto shows that it was complainant Sher Khan who was driving the truck in the middle of the road instead of the left side while the other truck was on its own left side. This admission proves that the accident took place due to the negligence of complainant Sher Khan himself.
10. Mashir Rahim Dad and A. S. I. Muhammad Afzal have not given the position of the two trucks at the spot, nor any sketch has been prepared to enable the Court to ascertain as to which truck was on right side and which was on the wrong side. Close examination of the evidence would disclose that connection of the applicant with this incident as well as his alleged rashness or negligence are both doubtful. Both the Courts below have failed to appreciate the evidence properly. Except complainant Sher Khan, no other witness, not even his cleaner (P. W. Taj Muhammad) has implicated the applicant. P. Ws. Noor Muhammad and Chutto have said that both the trucks had collided with each other. This is not the case of even of the complainant. None of the P. Ws. Except Sher Khan has said that the other truck coming from the Karachi side was being driven in a rash or negligent manner or that its speed was very high. Only Sher Khan has said that the truck from the opposite side was coming at a high speed. This fact would not make the act of the driver rash or negligent, even if it is believed that the applicant was its driver. Driving at high speed on national highway, by itself would not render the act of the driver rash or negligent. It has not been alleged that the applicant was driving on the wrong side, or that headlights of his truck were not on, or that he was driving with the knowledge of such mechanical defect in his vehicle which could have resulted in any accident or that the applicant was intoxicated at the time of the accident. These are some of circumstances, which if proved, would have bringing the act of the driver within the purview of rashness or negligence.
11. In this connection reference may be made to the case of Muhammad Bux v. The State in which it has been held :- "If the speed is high one may not be rash and negligent. To run a vehicle at a high speed is not an offence in itself. Rather, the offence is to drive rashly and negligently. Word "rashness" does not necessarily point as the high speed but it has an element of negligence also. Then it would differ from place to place and it will have to be essentially established as to what the approximate speed should normally be in a particular area in view of the quantum of traffic in that area."
12. In Muhammad Akhtar v. The State it has been observed :- "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 be failed to take proper care by omitting to take some action through which he could have avoided the accident."
13. In Abdullah v. The State it was held :- "He did not see any-mark or dent in the front of the bus. In the context of this aspect it is to be assessed whether there was sufficient evidence of rashness or negligence on the part of the applicant in driving the bus. The mere fact that three prosecution witnesses stated that the bus was being driven by the applicant at a very fast speed without giving particulars would not necessarily indicate that the bus was in fact being driven at a fast speed for we have no indication what was the approximate actual speed of the bus."
14. None of the vehicles in the present case was examined by the Investigating Officer or got examined by Motor Vehicles Inspector to prove mechanical defect, if any, in the truck, or to show whether the trucks B had collided with other or whether any damage was caused to any of the trucks except that the wind screen of the complainant's truck was smashed due to impact of the iron bars which were projecting outside the body of the other truck.
15. The most important thing in such cases is the sketch of the scene of offence depicting the position of the two vehicles at the spot at the time , of the incident. But no such sketch was prepared.
16. However, from the evidence of the Taj Muhammad, who was cleaner on the complainant's' truck it appears that the truck of the complainant was in the middle of the road while the other truck was on its own side of the road.
17. In view of this state of evidence and the principle of law laid down by superior Courts, it can be said that the two Courts below have neither appreciated the evidence properly, nor correct law has been applied to the facts of the case.
18. Consequently, the conviction and sentence are set aside and the applicant is acquitted of the offence he has been charged with. He is alreadyr on bail. His bail bond stands discharged. 1976 P Cr. L J 406 1980 P Cr. L J 103 1968 P Cr. L J 1416