' By a short order dated 2-4-1989, at the conclusion of the hearing of this appeal, I had allowed this appeal and directed the release of the appellant in case he was not required in any other case, and I now proceed to record my reasons for the same.
2. Appellant Hassan Ahmad alias Muhammad Hussain was tried by Sessions Judge (East), Karachi on a charge under section 304, P.P.C., but was convicted for the offence under section 304-A, P.P.C., and was sentenced to suffer R.I. For four years and to pay a compensation of Rs,10,000 to the legal heirs of deceased Abdul Rauf or in default to suffer R.I. For six months. The benefit of section 382-B, Cr.P.C. Was also extended to him. This judgment dated 15-1-1989, is the subject-matter of this appeal.
3. The facts of the case are fairly simple; on the 29th of October, 1985, at about 8-10 a.m., Muhammad Akram A.S.I. Of New Town P.S. Was informed that one Abdul Rauf had been brought to Jinnah Post-Graduate Medical Centre, Karachi, in an injured state having been knocked down by Suzuki van, which was driven by appellant Hassan Ahmad. The Police Officer rushed to the said hospital, but could not record the statement of injured Abdul Rauf, who was lying unconscious. The Police Officer then proceeded to the scene of occurrence which was situated near Bungalow No,D/8, Al-Hilal Society, Karachi. Some broken pieces of glass were lying there. Such Mashirnama was then prepared. By this time injured Abdul Rauf died in hospital. He then recorded the statements of witnesses Muhammad Fayyaz and Shaukat Ali. On return to police station, the A.S.I.
Lodged F.I.R. On behalf of State. Appellant Hassan Ahmad was then arrested and after usual investigation was sent up to stand trial.
4. At the trial the prosecution has examined Muhammad Fayyaz (P.W.1), Muhammad Nasim (P.W.2), Zafar Aziz, M.V.I. (P.W.3), Muhammad Akram A.S.I. (P.W.4), Dr. Zulfiqar Ali (P.W.5) and Dr. Iqbal Ahmad (P.W.6).
5. The appellant met the charge with a denial. He claims to have carried injured Abdul Rauf to Jinnah Post-Graduate Medical Centre, Karachi. He had deposited his driving licence with C.M.O., and when he went to collect the same, he was arrested and involved in this case falsely. The appellant, however, led no defence. He also did not step into the witness-box.
6. On the assessm ent of evidence, the learned Sessions Judge found the appellant guilty for the offence under section 304-A, P.P.C. And convicted him accordingly.
7. The fact that Abdul Rauf died an unnatural death is not disputed. Dr. Iqbal Ahmad (P.W.6) had examined the injured when he was still alive. According to him, the injuries could have been caused by impact of a moving vehicle. Dr. Zulfiqar Ali (P.W.5) produced the letter of C.M.O. Conveying the cause of death of Abdul Rauf, which was due to head injury.
8. Section 304-A, P.P.C.Speaks of rash or negligent act. A rash act is primarily an over-hasty act, while negligence is the breach of a duty caused by omission to do some thing which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of some thing which a prudent and reasonable man would not do.
Ordinarily the word 'or' is used disjunctive, which emphasises the contrast between the two concepts of 'rashness' and 'negligence' for the purpose of criminal liability under this section.
Obviously one is exclusive of the other and, therefore, the act causing the death of any person cannot be 'rash' and 'negligent' at the same time. The learned Sessions Judge has also left this question open in the following words:- "Having held above, I am of the considered view that the act of the accused does not amount to culpable homicide not amounting to murder within the meaning of section 304, P.P.C., but it would amount to causing death of the deceased by rash or negligent act, an offence under section 304- A, P.P.C."
' The appellant was thus convicted without first determining whether the act by which he caused the death of Abdul Rauf was 'rash' or 'negligent', which in my view was an erroneous approach.
9. The case of the prosecution solely rests upon the testimony of Muhammad Fayyaz (P.W.1). The following extract of his evidence is material:- "On 29-10-1985 at about 6-15 a.m. I was going from Sabzi Mandi towards my house. At that time I saw that one Abdul Rauf was crossing the road towards sugar-cane market side. I saw that one Suzuki van was coming from Hassan Square side in full speed, and hit to Abdul Rauf. On receipt of blow Abdul Rauf fell down on the ground and became unconscious. Injured Abdul Rauf was put in Suzuki vehicle of accused and was taken to Jinnah Hospital. On the next day I learnt that Abdul Rauf had expired."
10. There is no evidence on record to show that Muhammad Fayyaz (P.W.1), knew deceased Abdul Rauf prior to this incident. There is also no indication that appellant Hassan Ahmad was known to this witness previously. Admittedly no identification test in respect of the appellant was held through this witness. There is, therefore, no satisfactory evidence on record to connect the appellant with this act resulting into the death of Abdul Rauf.
11. The evidence of Muhammad Fayyaz (P.W.1), even if accepted on face value is not sufficient to bring home charge against the appellant for the offence under section 304-A, P.P.C. The only fact that a vehicle was going on a fast speed will not by itself prove the driver guilty for rash or negligent act. In the case of Ghulam Muhammad v. The Crown, reported in PLD 1953 Lah. 260, Shabbir Ahmed, J., observed that the mere fact that the lorry was going at a fast speed would not prove rashness or negligence. In the case of Muhammad Yaqub v. The State reported in PLD 1959 Kar. 30 Abdul Hamid, J., threw light on this aspect of the case in the following words:- "Conviction under section 304-A requires that some rash or negligent act on the part of the accused must be conclusively established by direct evidence. If the hand brake is defective that has no affect on speed. There was defect in the foot make, but that defect only pulled the car to the left when the brake was to be put to work. That defect in the brake of the car alone would not by itself constitute the driving of the car a rash or negligent act. It must be established by evidence that at the time of the accident the driver was driving the car at an uncontrollable speed and was guilty of a rash or negligent act."
12. In the case of Umara Khan and another v. Member Board of Revenue, West Pakistan Lahore and another reported in PLD 1965 Pesh. 104, a Division Bench held 'mere speeding of vehicle does not constitute rash and negligent act.'.
13. This view was followed in cases reported as Abdullah v. The State 1968 P Cr. L J 1416, Terence Anthony D`Casta v. The State 1969 P Cr. L J 1228, Abdul Ghani v. The State 1975 P Cr. L J 515, Muhammad Afzal v. The State 1975 P Cr. L J 1353 and Muhammad Bakhsh v. The State 1976 P Cr. L J 405.
14. Criminal cases are decided on a broad view of the evidence. The discussion of evidence must lead to a conclusion which may not be characterized as perverse. Emotion has no place in a judgment. The Judge in such cases is not expected to search laboriously and anxiously with a microscope for some truth which might be buried in the evidence. As Young J., pointed out in Asmatullah v. Emperor AIR 1933 All. 896, 'such procedure is wrong, a waste of valuable time and a danger to the public. It must frequently result in innocent persons being convicted. A conviction in such a case must largely be the result of guess work. The plain duty of the Court when it finds the prosecution case false and manufactured in material and vital particulars and supported by perjured evidence, is to throw the whole case out without delay'.
15. I have not discovered the result which apparently a critical examination f the learned Sessions Judge had produced. In my opinion no case under section A, P.P.C. Was made out against the appellant. The appeal is accordingly llowed and the appellant is acquitted.