' This appeal has been filed by Shamroz Khan who stands convicted on two counts. He was sentenced to seven years' R.I. And a fine of Rs,1,000 and in default to undergo six months' R.I. Under section 304, P.P.C. And two years' R.I. Under section 429, P.P.C. By a Magistrate Section 30, Sahiwal vide order dated 29th March, 1982. Both the sentences were ordered to run concurrently. It was further directed that compensation of Rs, 5,000 shall be paid by the appellant to be shared equally by the heirs of both Ibrahim and Mushtaq deceased and in default of payment of compensation, the appellant shall further suffer R.I. For six months.
2. The facts in brief are that on 16th April, 1979 at about 5-00 a.m. Mazhar Hussain Shah P.W.2 and Mirza Rashid Ahmad P.W.3 were returning home from the Bus stop of Chak No, 116/12-L on G.T. Road after seeing off their friend who left for Multan. When they reached near Kilo Meter No, 215, they saw a bus No, 98/MNC of Tariq Ismail Company being driven rashly and negligently by the appellant which came from Multan side and crashed into a bullock cart loaded with tubewell boring machine. The collision was so forceful that the bullock cart broke into pieces and two persons namely, Ibrahim and Mushtaq who were sitting on that cart and the two bullocks yoked in the cart were killed instantaneously and the bus also turned turtle. The appellant however, escaped from the scene. Some of the passengers travelling in that bus also sustained injuries. Mazhar Hussain Shah P.W. 2 left for police station for reporting the incident. He came across Sadiq Hussain S.I. S.H.0 at Kassowal-bus-stand with whom he lodged report Exh. P.A. After usual investigation the appellant was sent up for trial.
3. The learned trial Magistrate recorded evidence of nine witnesses on behalf of the prosecution.
The case of the appellant was of denial simplicitor. On a detailed analysis of the prosecution evidence, learned trial Magistrate held that the appellant carrying many lives in his bus failed to exercise due care and caution so as to avert any possible danger to their lives. He, therefore, concluded that the appellant in doing so had the knowledge that by driving a bus in these circumstances he was likely to take lives of innocent persons and was thus liable under section 304, P.P.C.
4 . Before the arguments commenced in the case, Ismail father of Ibrahim deceased and Jan Muhammad a real brother of Mushtaq Ahmad deceased put in an application praying that as they have effected compromise with the appellant and have pardoned him in the name of Almightly, therefore, he may be excused. They also filed affidavits to this effect. However, to verify the contents of the affidavits, heirs of both the deceased were sent for, who made statements before me on oath in the same strain.
5. Having perused the record of the case, I am in full agreement with the learned trial Court that the unfortunate collision took place because the appellant was driving in a rash and negligent manner and as a result thereof, two human beings lost their lives, but at the same time I find myself unable to accept the finding of the learned trial Court that the facts proved on record constituted offences under section 304, P.P.C. And section 429, P.P.C. To the contrary I find that the material available on record, unmistakably, disclosed an offence under section 304-A, P.P.C.
6. For the proper appreciation of the controversy the relevant provisions are reproduced hereunder: "Section 304-A, P.P.C.--Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with intention of causing death or causing such bodily injury as is likely to cause death; ' Or with imprisonment of either description for a term which may extend to 10 years or with fine or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death." "Section 304-A, P.P.C.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine." (The underlines are mine).
7. It would be seen that section 304, P.P.C. Deals with "culpable homicide not amounting to murder" caused by "doing an act" intentionally or with such knowledge that death would normally be its result, whereas section 304-A, P.P.C. Applies where "death not amounting to culpable homicide" is caused, by doing a "rash or negligent act". The appellant seems to have been convicted by the learned Trial Magistrate under Part-II of section 304, P.P.C.
8. The cases under section 304, Part II, P.P.C. Sharply differ with these under section 304-A, P.P.C. It may be stated here that "rashness and negligence" is not in its nature criminal but the "rash and negligent acts" endangering human life", as envisaged in sections 279, 336, 337 and 338, P.P.C. Are actionable. And when such rash and negligent acts cause, "death not amounting to culpable homcidie", they would attract the provisions of section 304-A, P.P.C. To put it more precisely, I would say that for bringing a case within the purview of section 304. P.P.C. It should be proved that "culpable homicide" was caused by "doing an act" as defined in section 299, P.P.C. An "act" depicts the intention of the doer, who is also supposed to know the possible consequences of his "act" but the doer of a "rash and negligent act" shows his recklessness and indifference about its consequences. That is why, in cases of "rash and negligent 'driving", the drivers often lose their own lives.
9. In the instant case, it is in evidence that the bus of the appellant after colliding with the cart had turned turtle and many among the passengers got hurt. Had it been in the knowledge of the appellant that due to his rash and negligent driving the bus would collide with a cart and turn turtle, he would have not driven the bus in such a manner so as to risk his own life. Therefore, learned trial Magistrate was not right in holding that the appellant had the knowledge all about the accident and consequential loss of human lives, I am fortified by the view expressed by a learned Division Bench of this Court in the case of Taj Muhammad Khan v. State PLD 1966 (W.P.) Lah.
745.
10. There being a clear finding by the learned trial Court that the appellant was driving rashly and negligently, due to which the bus banged into a bullock-cart resulting in the death of two persons would obviously mean that deaths caused in the collision were "deaths not amounting to culpable homicide". Therefore, he could/should have not held, at the same time, that the appellant had committed "culpable homicide". Likewise the requisite intention as well as the knowledge so as to bring the case within the purview of section 429, P.P.C. Is conspicuously missing, therefore, the conviction under these provisions of law cannot be sustained. Consequently the conviction and sentence under section 429, P.P.C. Is set aside and the conviction under section 304, P.P.C. Is altered to one under section 304-A, P.P.C.
11. The next question which remains for determination is the quantum of sentence to be awarded under section 304-A, P.P.C. Since the heirs of the two deceased have effected compromise with the appellant and have forgiven him in the name of Almighty which shows that they are not interested in further detention of the appellant in jail, I, therefore, considering it as a sufficient mitigating circumstance, take a lenient view in the award of sentence. In this regard a reference to Khurshid Ahmad v. State 1976 SCM R 193 may be made with advantage. In this case, the accused was convicted under section 307, P.P.C. And sentenced to six years' R.I. 'and a fine of Rs, 500. Their Lordhships of the Supreme Court in view of the compromise between the parties, were pleased to reduce the sentences of the accused to the period already undergone which came to nearly seven months. Respectfully following the dictum laid down in the above-quoted ruling. I sentence the appellant to imprisonment for the period already undergone under section 304-A, P.P.C. He be set at liberty forthwith, if his detention is not required in connection with any other case.
12. The result thus is that appeal is partly accepted in the terms indicated above.