Abdul Latif petitioner, who was employed as a driver by Burmah Shell on one of their petrol-tankers was convicted under section 304-A of the Pakistan Penal Code and sentenced to rigorous imprisonment for two years with a fine of Rs. 1,000.00 or in default further rigorous imprisonment for six months, on 15th July 1970 by Malik Amir Khan, then Magistrate lst Class, Jhelum. His appeal was dismissed by the learned Sessions Judge, Jhelum with a reduction of one year in the sentence of imprisonment only. He has accordingly approached this Court with a petition under section 439, Cr.
P. C. to question the correctness of these orders on the ground of misappreciation of even otherwise insufficient evidence adduced in this case by the prosecution.
2. The prosecution case as unfolded at the trial is that the petitioner while driving his tanker from Rawalpindi side to Jhelum had crushed Ajaib Khan deceased under its front wheel when he was standing towards its left on the kacha portion of the G. T. Road near Domeli bus-stop on the 10th October 1968 and succumbed to the injuries thus suffered by him a few days later in the hospital.
3. These allegations were duly supported at the trial by Abdul Majid (P. W. 1), who had lodged report Exh. P. A. with Sub-Inspector Saleern Akhtar (P. W. 2) immediately after this accident. He is an independent and respectable witness who had arrived at the spot by his car shortly before this occurrence and had stopped there to change the water of the radiator of his car at that time.
Anyhow the defence had put not a single question in cross-examination to challenge the version given by this witness at the trial which was fully corroborated by the recovery of blood-stained earth from the spot. Saleern Akhtar Sub-Inspector had prepared site plan Exh. P. B. and taken into possession blood-stained earth from the kacha portion on the left side of the G. T. Road from Rawalpindi side vide Exh. P. C. as deposed by him in his evidence as P. W. 2 in this case which likewise had remained unchallenged as he was also not subjected to any cross-examination by the defence.
Of the others two alleged eye-witnesses Haider Zaman (P. W. 6) denied to have seen the occurrence while Abdul Aziz supported the defence version by stating that before the arrival of the tanker driven by the petitioner a bus had stopped near the place of the occurrence and the deceased was one of the passengers who after alighting from this bus tried to cross the road from in front of it and was hit by the tanker and received injuries in that way. He had tried to show that the deceased had contributed to the accident by his own negligence in not caring for the approaching tanker in his bid to cross the road. The factum of his being run over by the tanker driven by the petitioner was, however, not denied by this witness, but the version sponsored by him was quite improbable and in fact inconsistent in view of the site plan Exh. P. B. prepared by Saleern Akhtar, Sub- Inspector (P. W. 2) especially when its correctness had not at all been challenged by the defence, this version had, therefore, been rightly rejected by the Courts below.
4. Faced with this difficulty the learned counsel for the petitioner gave up the contest about the factual aspect of the prosecution case and contented himself only with the criticism of the medical evidence. It was urged by him, of course rightly, that Ajaib Khan deceased had expired in the hospital on the seventh day of the occurrence, but no autopsy was held on his dead body to find out the actual cause of his death; that Dr. Abdul Majid Chaudhry (P. W. 5) had only deposed about the number and nature of the injuries found on the person of Ajaib Khan deceased just after the occurrence and although he remained under his treatment till his death on the 16th of October 1968 he had not said a word about the cause of his death in his evidence at the trial. This contention of the learned counsel is fully borne out from the record which has revealed that one Shadman Khan had submitted an application before the Ilaqa Magistrate on 16th October 1968 that his son Ajaib Khan had died in the hospital on the preceding night as a result of the injuries suffered by him in this accident and he should be allowed to remove his dead body from the hospital without any postmortem examination. The Magistrate concerned allowed his request after obtaining a report from the aforesaid doctor. This report appears on the back of the application (at page l2 of the file) and is reproduced below in verbatim:-- "Accidental death.--Ho post-mortem required according to rules. The cause of death in this case is shock due to multiple fractures.
(Sd.) Abdul Majid Chaudhry, 16-10-1968. M. O., D. H. Q. Hospital, Jhelgm.
It is unfortunate that even this report of the doctor was not proved during his evidence at the trial.
He had been attending to Ajaib Khan deceased who was under his treatment in the hospital till his death and was thus conversant with the developments which had led to his death. A formal post- mortem examination was however necessary to find out the exact cause of his death. As a result of this unfortunate omission the prosecution had failed to establish that the death of Ajaib Khan deceased was the direct result of the injuries suffered by him on account of the rash or negligent act of the petitioner. He could be held guilty of an offence under section 304-A, P. P. C. only after it was proved by the necessary medical evidence that the resultant injuries were the immediate, proximate and efficient cause, the causa causans and not merely the causa sine qua non of death, without the intervention of any other negligence, as held in Emperor v. Omkar Ram Partap (1). This view was consistently followed in later decisions by the Indian Courts, i. e., Satnarain Pandey v.
Emperor (2), State of Madhya Pradesh v. Ranjit Kumar Chatarjee and others (3), Sty a Mali v. State
(4) and finally in Kurban Hussain Mohamedalli Rangawalla v. State of Maharashtra (5). A similar stand was taken in Muhammad Abu Tahir alias Raja v. The State (6) wherain the appellant was convicted under section 302, P. P. C. and sentenced to death in addition to his convictions and sentence under some other offences, for committing the murder of Iqbal Asif Ali
(1) (1902) 4 Bom. L R 679 (2) AIR 1933 All. 232
(3) AIR 1959 Madh. Pra. 284 (4) AIR 1964 Orissa 173
(5) AIR 1965 SC 1616 (6) PLD 1966 Dacca 491 (deceased of that case) who had succumbed to his injuries on the fifth day of the occurrence and his dead body was handed over to his parents without performing any post-mortem examination thereon. On account of this lacuna their Lordships had to convert his conviction to the one under section 326, P. P. C. with a sentence of transportation for life. Taking this view of the matter the conviction of Abdul Latif petitioner under section 304-A, P. P. C. is not sustainable.
5. In the present case Dr. Abdul Majid Chaudhry had examined the injuries of Ajaib Khan at 2-15 p.m. on 10th October 1968 immediately after the occurrence vide medico-legal report Exh. P. G. which was duly proved at the trial giving the detailed description of thirteen injuries found on his person out of which four had heen declared grievous involving fractures of the bones underneath including the right and left upper part of the legs. In view of this evidence of the medical witness Abdul Latif petitioner could only be convicted under section 338, P. P. C. As a result of this discussion I set aside the conviction of the petitioner under section 304-A, P. P. C. and alter it to that under section 338, P. P. C. and dismiss the petition with this modification. The sentence awarded to him is not at ail excessive and calls for no interference in view of the damage done to the victim of his gross negligence. .