1. This is a Revision Application, whereby the applicant Mst. Mahmooda Begum, mother of deceased Saghir Hussain who was killed in traffic accident had called in question the acquittal order, dated 20-10-1984 of the A.C.M. No. 2, Karachi, acquitting the respondent Amiruddin, the driver of the ill- fated motor vehicle.
2. Briefly stated the facts of the case are that on 27-9-1983 the deceased Saghir Hussain mounted on a cycle met an accident at the traffic signal near Taj Mahal Hotel. He was hit by Suzuki Van driven by respondent Amiruddin causing him injuries which resulted in his death. Two police constables on duty saw the accident. A case was registered against the accused Amiruddin who, following the usual investigation, was challaned by police under section 304-A, P.P.C. After five out of nine witnesses cited in support of the prosecution case, were examined, an application was moved under section 249-A, Cr.P.C., on behalf of the accused praying for his acquittal. The trial Court heard the arguments of both the learned counsel for the accused and the P.S.I. In charge of the State case and acquitted the accused under section 249-A, Cr.P.C. Vide the impugned order, dated 20-10-1984. This Revision Application is directed against the said order.
3. After hearing the arguments of the learned counsel for the parties, the Revision Application was dismissed by short order, dated 2-4-1986 for reasons to be recorded separately. Following are the reasons in support of the said short order.
4. It may be stated at the outset that the State has not deemed fit to file acquittal appeal from the impugned order. As was conceded by learned counsel for the applicant, even the District Magistrate was not approached by the applicant for filing the appeal. Furthermore, the applicant waited for nearly a year before she filed the present Revision Application. The impugned order was passed on 20-10-1984 whereas the Revision Application was filed on 14-10-1985. No satisfactory explanation has been furnished for such delay. The only explanation put forward by the applicant's counsel was that the applicant was not a party to the Criminal Case relating to the death of her son, as she was neither complainant nor a witness 'in the case and as such she was not aware of the acquittal of the accused. It was explained that as soon as she came to know about it, she lost no time in filing this Revision Application. However, as stated at pera (g), page 3 of the Memo of Revision Application, although applicant came to know about the acquittal of the accused in August, 1985, yet she did not file the Revision Application immediately. Thus, even on her own showing, she took two months after the accused's acquittal came to her notice to set the law in motion. Of course no limitation is prescribed for tiling Criminal Revision Application, but it has to be filed within reasonable time. What is reasonable time depends upon the circumstances of each case. In the instant case the applicant being mother of the deceased was obviously interested in the result of the case right from the beginning. If she had been vigilant in pursuing the case, she would have come to know about its ending in acquittal in time. As pointed out above, it took her two months even after knowing about the acquittal to file the present application. All this shows that the applicant took it easy and did not bother to challenge the accused's acquittal within reasonable time.
5. It was contended by the learned counsel for the applicant that the trial Court has shown undue haste in acquitting the accused as it did not wait for recording of the evidence of the remaining witnesses. According to him as many as four witnesses still remained to be examined when the impugned order was passed. That may be so, but the learned counsel for the applicant was unable to show how and in what manner the evidence of the remaining witnesses would have improved the prosecution case and brightened the chances of the accused's conviction.
6. I have gone through the impugned order carefully. It appears that the occurrence was witnessed by two police constables on duty. Both of them have been examined. The eye-witness account is given by P.W. Sardar Ali (Exh. 4) and P.W. Bashir Ahmed (Exh.
51. They are admittedly police constables who were on traffic duty at the time of the accident. On perusal of their statements, it is revealed that when the deceased was coming on his cycle from branch road (Rafiq Shaheed Road), the traffic on the main road (Shahrah -e-Faisal) was closed and that when the traffic signal of the main road was opened and the vehicles including the Suzuki van driven by the accused started moving, the deceased had not yet crossed the main road and had by then reached the traffic point, with the result that he fell from the cycle in between the moving vehicles. The constable Bashir Ahmed has described the situation as under:- "He was till driving his cycle slowly but when the vehicles of the main road started, he fell down in- between them."
7. It is thus clear that the deceased-cyclist was hit by the accused's Suzuki van after he had fallen from the cycle in between the moving vehicles. The question arises if the accused could avoid hitting the deceased in such a situation. In other words whether in these circumstances the accused could be held to have driven the vehicle rashly or negligently.
8. It is an admitted position that the above eye-witnesses could not say what the speed of accused's suzuki was when it hit the deceased It is also in their evidence that the deceased was only 10-12 feet away when the traffic on the main road started moving. It is obvious that by the time the accused's vehicle hit the deceased at such a short distance it could not have picked up high speed. Since all the vehicles on the main road started moving the accused's vehicle too had to move or else it would have been hit by the vehicles coming from behind. Moreover once the accused's vehicle moved, it was difficult for the accused to stop it in order to avoid hitting the fallen deceased, particularly when. It was being followed by scores of vehicles. Thus, the accused was placed in such a position that even if he had sincerely intended to save the deceased he could not have saved him. Therefore, the occurrence was purely an accident, beyond the control of the accused: With the above appraisal of the material on record it cannot be held that the acquittal of the accused was erroneous. Ever, if alternate view were possible that the accused could avoid causing the fatal injuries to the deceased, the order of the accused's acquittal would not be set aside on that ground in exercise of revisional jurisdiction. The learned counsel for the accused has cited a number of authorities to show not only that the speed of the vehicle does riot necessarily amount to rash and negligent driving but also that if the victim of the traffic accident comes in front of the speeding vehicle, 'the driver thereof would not be liable.
9. The first case is of Emperor v. W.S. Priestely AIR 1944 Sind 124, wherein it was held:-- "Before a conviction can be properly made under section 304-A, the carelessness shown must be such as to amount to such recklessness as would involve some element of criminality. The criminality lies in running the risk of doing an act with recklessness or indifference as to the consequence. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. Before a person can be convicted of a criminal offence, it must be proved that mens rea exists, that in fact the accused had a guilty mind. In order to establish criminal liability the facts must be such that, in the opinion of the Court, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against State and conduct deserving punishment. Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' must merely covers the case. But it is probably not all embracing, for 'reckless' suggests an in difference to risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
10. The second case is of Ali Muhammad v. The Stale PLD 1973 Kar. 427, wherein it was held: "As the above passage would clearly show, for establishing criminal liability resulting from negligence or rashness, the degree of proof that would be required has to be very strict."
11. The third case is of Ghulam Muhammad v. The Crown PLD 1953 Lah. 260, wherein it was held: "Whether or not the petitioner was rash and negligent is a 'question of fact about which the Court has to form an opinion, on considering the entire material on the record. Opinions of witnesses are relevant only if they are covered by any of sections 45 to 51 of the Evidence Act .....................................
12. The mere fact that the lorry was going at fast speed would not prove rashness and negligence Where the deceased suddenly came in front of the lorry when it came near and was killed by being run over the accused who was driving the vehicle was not guilty under section 304-A, P.P.C."
13. For the reasons given in the foregoing paragraphs and in view of the above authorities, the order of the lower Court cannot be interfered with. Accordingly as stated above, the Revision application was dismissed.