The applicant A.I Mohammed was tried by the Additional City Magistrate, Court No. 20, Karachi, on charges under section 279/337/304-A, P. P. C. And by a judgment dated 30-12-1969 he was found guilty of offences under sections 304-A, P. P. C. And 337, P. P. C. On the first count he was sentenced to suffer R. I. For one year and to pay a fine of Rs. 500.00 (in default R. I. For six months more) and on the second count he was sentenced to R. I. For six months and a fine of Rs. 300.00 din default R. I.
For two months more). No separate conviction or sentence was recorded in respect of offence under section 279, P. P. C. The applicant filed an appeal which was heard by Mr. Qadeer Mohammed Qureshi. Second Additional Sessions Judge. Karachi. The appeal was dismissed on 11- 3-1971, and hence this Revision.
2. Briefly stated the facts are that complainant Allah Rakhio lived in a house in Ibrahim Haideri village alongwith his wife and his two sons Mohammed Amin aged two years and Faqir Mohammed aged 5 years. While he was sleeping in his house on 9-4-1967, a Motor-car dashed against the wall of his house resulting in collapse of the wall. The wall was a cement masonry construction. The cement blocks and the debris fell on the two children causing them severe Injuries. Mohd. Amin and Faqir Mohammed were examined by Dr. Waris Nasim at 3-45 a.m. And wore found to be having the following injuries: Mohammed Amin:
(1) Swelling left side forehead.
(2) Swelling right side forehead.
(3) Swelling front and parietal regions of skull.
(4) Swelling back of scalp.
(5) Swelling left upper lip.
(6) Abrasion left side forehead --"x 1/5".
(7) Abrasion inner side left ankle --" x 1/8".
Faqir Mohammed:
(1) Abrasion left cheek 3' x 3".
(2) Abrasion dorsum of left hand 1/3" x --".
(3) Abrasion dorsum of left gyring finger 1/3" x --".
The condition of the smaller child Mohammed Amin was found to be very low by the Medical Officer and in his evidence he has stated that the injuries received by Mohammed Amin were dangerous to his life and in fact Mohammed Amin expired in the hospital on the next morning.
3. One Ghulam (P. W. 6) reported the happening of this occurrence at the Outpost of Korangi Police Station at 2 a.m. To H. C. Mohammed Bisharat who was on Roznamcha duty at the outpost. No formal report was drawn up but an entry was made in the Station Diary stating as follows:-- "At 0200 hours Ghulam son of Juman resident of Ibrahim Haider came at the Out-post. He got written an oral report. 'This night at 1 a.m. Driver A.I Mohammed son of Iboo who was driving Car No. 7491-KAI hit and (razed) to ground the wall of my brother Allah Rakhio and due to falling of the wall sons of my brother (1) Faqir Mohd. Son of Allah Rakhio aged 3 years and (2) Mohd. Amin son of Allah Rakhio aged two years received Injuries inside the house. On raising cries driver left the car and ran away."
Ghulam Hussain who was examined as P. W. 6 has however not been questioned at all in regard to the incident of the report. He has only been examined as a Mashir of the scene of offence in this case and has produced the Mashirnama (Exh. 7-A).
It teems that the police did not register any case until 12-15 noon, the next day by which time the information had been received by police from Dr. Zubairi, Casualty Medical Officer about the death of Mohammed Amin. Investigation was thereafter taken up by S. I. P. Mohammed Idris Khan (P. W.
10) who went to the scene of occurrence and examined witnesses. On 10-4-1967 Motor Vehicles Inspector Amir Nawaz (P. W. 9) examined the car in question namely car bearing No. KAE-7491. The car at that time was standing near the house of one Mohammed Yousuf and the following damage to the car was seen by the Motor Vehicles Inspector:-
(1) Front left Mudguard dented.
(2) Bonnet dented;
(3) Left front bumper bent.
(4) Wind screen broken.
(5) Ti-rod broken.
4. The Car was not found fit for running test obviously because the ti-rod was broken.
5. At the trial the prosecution examined Allah Rakhio, the father of the deceased (P. W. 2), Nim a neighbour (P. W. 3) Yaqub also a relative and neighbour (P. W. 5), and Karimi son of a cousin of Allah Rakhio (P. W. 12). These witnesses gave evidence in relation to the accident itself. Besides the aforesaid witnesses the prosecution examined Usman (P. W. 4) who was a witness of the Mashirnama of the dead body and inquest report and Ghulam (P. W. 6) who was a Mashir of the scene of occurrence. Four Police Officers were also examined namely H. C. Mohammed Bisharat (P.
W. 7). Who had recorded the entries in the Station Diary, S. I. P. Mohammed Idris (P. W. 10), who investigated the case ; D. S. P. Zahiruddin, who verified the investigation carried out by S. I. P. Mohd.
Idris and arrested the applicant/accused, and Motor Vehicles Inspector Amir Nawaz (P. W. 9) who had Inspected the vehicle involved In the case and found the same to be damaged.
Dr. Waris Nasim (P. W. 1) and Idramuddin (P. W. 11) were examined in relation to the injuries sustained, which injuries have been stated above.
The applicant in his statement denied every allegation of the prosecution and stated that his car was parked at his house when prosecution witnesses Nim and Karimi came and damaged the same and lodged the report.
The applicant also examined three defence witnesses namely Abdul Hakim, Imam Bux and Aboo.
Abdul Hakim gave evidence regarding the existence of enmity between Allah Rakhio and the applicant whereas the remaining two defence witnesses gave evidence that immediately after the occurrence they had come to the scene and at that time Allah Rakhio and the other witnesses told them that some truck had hit the wall of the house of Allah Rakhio and thereafter went away.
6. The only point deserving consideration in this Revision application is whether the applicant was driving the vehicle which hit the wall of the house of Allah Rakhio and if so whether the evidence in the case disclosed rashness or negligence on the part of the applicant. P. W. Allah Rakhio was admittedly sleeping in his house and he has clearly stated in his evidence that he came at the place of occurrence only after removing the children from under the cement blocks and debris. He further stated that the applicant was driving the car. It appears that the statement of Allah Rakhio is based on presumption because admittedly he had not seen the applicant driving the vehicle and it was only when he saw the vehicle of the applicant outside the house that he concluded that the applicant was driving the vehicle. P. W. Nim was not cross-examined and at the end of his examination-in-chief the Trying Magistrate has written "reserved at the request of D. C." This evidence was not complete and has to be left out of consideration. Even in his examination-in- chief he had not stated that he saw the applicant driving the car in question. Similarly Yaqub has clearly stated in his evidence that he did not see the applicant at the scene and he even went to the extent of saying that he did not see any vehicle standing at the place of occurrence. The last eye-witness Karimi has stated that he came on the sound of Impact and saw the applicant trying to remove his car and caught hold of him. In regard to this witness, Allah Rakhio had stated in his evidence that he had not seen Karimi on the night of the Incident but Karimi had come in the morning. Allah Rakhio had further stated that Karimi lived at Chanesar village and had been living there prior to the incident.
7. The Trying Magistrate has given a finding of fact that no witness had seen the applicant hitting the wall of the house of Allah Rakhio. However, the Trying Magistrate was Impressed her the circumstantial evidence in the case. This circumstantial evidence according to the Trying Magistrate was based on the damage to the car and for this reason the Trying Magistrate held that it was the car of the applicant that hit against the wall of Allah Rakhio resulting in death of one child and injuries to the other. The Trying Magistrate even went to the extent of saying that the applicant had purposely damaged the wall of Allah Rakhio on account of previous enmity.
8. The learned Additional Sessions Judge also came to the conclusion that no witness had seen the actual impact but went on further to say that the collapse of the wall and damage to the car Indicated negligence or rashness on the part of the driver of the car. On that reasoning the conviction was upheld.
9. On a perusal of the evidence recorded in the trial Court I see no reason to differ from the findings of fact recorded by the Courts below In respect of the evidence of eye-witnesses. Admittedly three witnesses Allah Rakhio, Nim and Yaqub had not seen the Incident at all and Karimi has been rightly disbelieved. The F. I. R. In this case was lodged by Ghulam (P. W. 6) but this witness in his evidence has stated nothing with regard to the incident itself.
10. The point that I have anxiously considered in this case is whether on the basis of the evidence available on the record it could be held that the applicant was driving the vehicle and did so rashly or negligently.
11. There is no doubt that the vehicle which dashed against the wall of the house of Allah Rakhio belonged to the applicant. This aspect of the case has not even been denied by the applicant and he has substantially admitted the same by saying that witnesses Nim and Karimi had come and pelted stones on his car. The question still is, that if it is held to be proved that the applicant was driving the vehicle, is the element of rashness or negligence established in this case. The prosecution witness Amir Nawaz, Motor Vehicles Inspector has stated that the ti-rod of the car in question was found to be broken at the time when he examined the vehicle. It is common knowledge that if the ti-rod is broken the vehicle will at once move out of control of the driver. The question then is as to whether the ti-rod was broken before the impact or on account of the impact. The Additional Sessions Judge has stated in his judgment that the ti-rod has been broken on account of impact. This, however, is a sweeping statement only and no reason has been assigned for coming to that conclusion. On the other hand it must not be forgotten that after all the applicant was facing a trial on a criminal charge. The burden of proof in a criminal charge and the degree of proof in support of a criminal charge has been considered in several cases and by several authors off and on. In the case of Miller v. Minister of Pensions ((1947) 2 K B 373) Lord Denning examined this question and expressed as follows:- " . . And for that purpose the evidence must reach the same degree of cogency as is required in a criminal case before an accused is found guilty. That degree is well settled.It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admits fanciful possibility to deflect course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour it can be dismissed with the sentence "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice."
Salmond on "Jurisprudence", XII Edition at page 394 has considered the question of criminal liability on account of negligence and has expressed as follows: "The difficulty of procuring adequate proof of intention of negligence could be met quite simply by allowing the defendant to shoulder the burden of proving his Innocence. In this event it would be for him to show that he acted neither intentionally nor through negligence and that any neglect or mistake on his part was not culpable.
This unfortunately is not the present position in English Law which recognizes many of offences of strict liability." (The underlining* is mine). 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.
Charlesworth on "Negligence", 4th Edition at page 10 has considered the question of criminal negligence and his opinion is that in a criminal Court the amount and degree of negligence are determining questions. The learned Author quoted a passage from the speech of Lord Atkin in the case of Andrews v. Director of Public Prosecutions (1937 A C 576), and the passage runs as follows:- - "The principle to be observed is that cases of manslaughter in driving motor-cars are instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough t for purpose of the criminal liability there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established."
Since the Courts below have rested this conviction on circumstantial evidence it would be profitable to reproduce a passage from the Book on "Evidence". 1969. Edition by Mohammed Munir, the former Chief Justice of Pakistan. The learned Author has expressed himself at page 12 of his book and the same is as follows:- "As to the quantum of circumstantial evidence necessary for convicting an accused, the rule is that the facts proved must be incompatible with the Innocence of the accused and Incapable of explanation upon any other reasonable hypothesis than that of his guilt. In a case of circumstantial evidence where two interpretations are possible, it is obviously not right to adopt the interpretation which is unfavourable to the accused in preference to the favourable one unless there is some specific reason to justify the adoption of the unfavourable interpretation. Since the failure of one link breaks the chain, every link in the circumstantial evidence must be proved: and none should be required to answer the charge without a clear proof of Corpus delicti."
11. I am of the view that ordinarily if it is established that the impact was a result of negligence or the impact was of a nature which can by itself lead to an inference of negligence it would not be necessary to obtain direct proof of circumstances out of which negligence could be spelt out. Just as in this case, the vehicle had swerved from the road and dashed against a wall, it may by itself furnish satisfactory proof of negligence. In this case, however, there is another difficulty that the ti- rod of the vehicle was found to be broken and there is no evidence B whatsoever as to what was the cause of the breaking of the ti-rod. The probability of the vehicle having dashed against the wall on account of sudden breaking of the ti-rod and consequent loss of control of the vehicle by the driver cannot be eliminated. The Motor Vehicles Inspector has not stated in his evidence as to when had the ti-rod broken nor has any witness been examined to prove this fact by direct or, presumptive evidence. I, therefore, find the case of the prosecution doubtful and extend the benefit of this doubt to the applicant.
12. In the result this Revision Application is allowed and the applicant is acquitted. He is on bail and he need not surrender. His bail bonds are cancelled.