' Salim-ud-Din was convicted and sentenced to two years' R.I. And six months' R.I. Under sections 304-A and 337, P.P.C., respectively, vide judgment of Sahibzada Nazir Bakhsh Magistrate First Class with Section 30 powers, Pakpattan, dated 31-12-1965. The sentences were ordered to run consecutively. Aggrieved against his conviction and sentence he filed an appeal before Mr. Sadiq Ali G. Khoja, Additional Sessions Judge, Multan camp at Montgomery, who vide his judgment, dated 23-5-1966 dismissed the same and upheld his conviction.
2. Criminal Revision No, 475 of 1966 has been filed by Salim-ud-Din petitioner whereas Raja Dilshad Ahmad, Advocate (the complainant) filed a revision petition for the enhancement of the sentences and for conversion of the offences from under sections 304-A, P.P.C. And 337, P.P.C. To one under section 304, P.P.C. Before the learned Additional Sessions Judge who vide his order of even date (23-5-1966), made a reference under section 438, Cr.P.C. To this Court, recommending for the enhancement of the sentence as well as imposition of fine, as according to the learned Additional Sessions Judge by the amendment the maximum penalty under section 304-A, P.P.C. Was substituted from two years' R.I. To four years' R.I. And also with fine. However, the learned Additional Sessions Judge did not give any decision with regard to the altering of sentence from under section 304-A, P.P.C. To one under section 304, P.P.C. And observed that the learned counsel would present his arguments with regard to this proposition of law before the High Court. My Lord, Mr. Justice K.E. Chauhan vide his order, dated 9-8-1966, admitted the reference and issued notice. In Criminal Revision No,621 of 1966, my Lord Inamullah Khan, Chief Justice of this Court (as he then was) issued a suo motu notice for enhancement while dealing with the bail application of the petitioner, which was dismissed by him. All these matters pertain to the same incident in which the petitioner as well as the complainant is the same. I will dispose them of by a single judgment.
3. The brief facts of the case are that on 29-12-1964 Dilshad Khan P.W.1 (the complainant as well as the Advocate in this case) alongwith his brother Jamshed Khan deceased boarded Vehari Bus No, 8540/LEC from Lahore for his destination to Chak No,299/EB. When the vehicle reached near the tube-well of Malik Khan Bahadur in the area of Chak No,215/EB, it stopped on the side of Pacca road so that the passengers should alight on this stop. Jamshed Khan deceased alighted from the bus and was standing on the side of it when he was being handed over his luggage by Bus Conductor Raj Hussain. Dilshad Khan P.W. Was sitting by the window side at that time whereas the Conductor was on the top of the bus. At that time Bus No,1689/BR of Burewala which was being driven by the petitioner, turned towards the right side at a high speed and crushed Jamshed Khan deceased under its wheels. Jamshed. Khan died at the spot. Raj Hussain, Conductor also received injuries in this process. The petitioner after crushing the deceased again went towards the left side of the road and stopped the vehicle at a considerable distance. The matter was reported to the police by Dilshad Khan vide Exh.PA.
4. According to the medical examination as deposed by Dr. Abdul Ghani P.W.7, the death had occurred due to fracture of the skull. It was also found by the doctor that Raj Hussain P.W. Had received five injuries in the shape of abrasions and contusions.
5. Transport Sub-Inspector Muhammad Akram P.W. Who inspected the bus of the petitioner on the next day, found that both the brakes of the bus were not in working order and fixed the responsibility on the petitioner who according to the witness should have been fully aware that he was taking a bus on the road which was having defective brakes.
6. The accused/petitioner while making his statement under section 342, Cr.P.C. Accepted that he had crushed the deceased under the wheels of his bus but attributed the same to his inability to control the bus as the brakes did not function properly at that particular time and explained his going to the wrong side in order to avoid a head-long clash with a tonga full of passengers coming from the opposite direction. The learned trial Magistrate although accepted the story of a tonga on the road at that unfortunate hour but the learned Additional Sessions Judge repelled it as nothing but concoction.
7. I have heard the learned counsel appearing on behalf of the petitioner, the complainant himself and the State and have perused the record of this case carefully with their assistance. So far as the two judgments of the Courts below are concerned, I find that ample and cogent reasons have been given for repelling the defence so put up by the petitioner in support of his innocence. The law cited on behalf of the petitioner was also taken into consideration by the learned Additional Sessions Judge who rightly observed that the citations did not help the case of the petitioner as the facts of the present case were much different from the facts of those cases in which speed of thirty miles or defect in the brakes was not considered as incriminating elements against the accused involved in such case. I am in full agreement with them in reaching those conclusions as facts of this case are very simple. It is well-established on the record that Salim-ud-Din petitioner should have been fully aware that the transport which he was going to drive on the road had defective brakes. A heavy responsibility was cast on him to see that the vehicle should not have been deployed unless and until the brakes were repaired and were in perfect order. A sufficient knowledge would stand attributed to him in the absence of working brakes that he was likely to plunge the vehicle at some juncture against the on-coming object when it was found necessary to stop the vehicle to avoid such contact. An experienced driver before accepting the responsibility of so many lives which he would likely to carry in his bus, would first of all check the brakes, the brake oil and tie rod end which are most vital parts of the mechanism for the safety of numerous passengers as well himself. It is a matter of common knowledge that driver often escapes unhurt during such accidents as he is the person who first of all realizes the danger on failure of his efforts to control the vehicle. Being first to have this signal, he would jump out and leave the vehicle and the passengers to their fate. The second and most important rule of driving is known to all those who are conversant with this art to keep to the left in this country. If the petitioner would have kept to left which it was must for him, there would have been no question of his coming to the place where Jamshed Khan deceased was standing. Even if it is accepted for the sake of argument that he had found a tonga coming from the opposite side and the bus in which the deceased had travelled blocking the road, the safest and sanest course left open to him was to stop the vehicle and thus avoid all possibility of any accident either with the tonga or with the bus. The petitioner had failed to bring on the record any reason which necessitated his on rush to the right side to gain the clear road once again. The learned Additional Sessions Judge has rightly termed this act as an act of acrobatic. This Court or any other Court in this country do not expect the drivers of loaded buses to perform the acts of acrobatics which would endanger the lives of the passengers carried by them or the pedestrians on the road. Under these circumstances it would be justified to assume that the petitioner had full knowledge that by plying a vehicle on the road with defective brakes, rushing it on high speed, ignoring the rule of the road and taking his bus to the right just to gain a free access to the open road, was nothing but an act which was in all probabilities going to cause the death of those coming in his way and at the same time endangered the lives of his passengers. The law in this behalf has enacted section 304, P.P.C. Consisting of two parts i,e, Part I and Part II and has distinguished this section from section 302, P.P.C. Section 302, P.P.C. Comes into play when there was a positive intention to kill certain individual and section 304, P.P.C. Comes into play where there is knowledge that the act of a person is likely to cause death. In Babulal Beharilal v. King Emperor I L R 1945 Nag. 931 Pollock, J. Found that the third clause of section 299, Indian Penal Code and the fourth clause of section 300 and the second part of section 304, were intended to apply, primarily at least, to cases in which there was no intention to cause death or bodily injury, such as reckless driving or shooting, and the second clause of section 300 is intended to apply, primarily at least, to cases in which the accused knew that the particular person was likely, from some peculiarity of constitution or other special cause, to die of an injury that would not ordinarily cause death.
' The rigour of sections 337 and 304-A, P.P.C. Would apply only in cases involving danger to others but which in themselves were not offences if done with due care to guard against the dangerous consequences but where the act of a particular individual is such that he can be safely burdened with the knowledge that his act would result into the death of others, he would be guilty of an offence under section 304, P.P.C. Only. This principle was elaborately discussed in the Emperor v.
Ktabdi Mundul I L R 1879 Cal. Vol.IV 764 wherein it was held that a person should not be punished lightly when it is found by evidence on the record and circumstantial evidence that he had full knowledge that his act would result into loss of lives of not one but so many individuals. In my considered opinion in such case of grave nature the application of sections 304-A or 337, P.P.C.
Would be an act of judicial extravagance. I am of the firm belief that the act of Salim-udDin petitioner would not be an ordinary act of rash and negligent driving in which the accused had taken all possible care but due to certain factors sometime beyond his control and sometime within his control, resulted in the loss of life of a pedestrian but on the other hand the act of this fellow was an act of a person, who fully knew that what he was doing, was going to result into the death of a person whom he crushed under the wheels of his bus ignoring all rules of the road and having full knowledge that he would not be able to stop his vehicle because of the defective brakes which he had either not checked which was duty incumbent upon him to do so or, after checking the same like a desperate and callous person, decided to ply the same. His wanton and flagrant breach of a golden rule of the road that if there is some vehicle in front of any person the best course for him is to stop his own vehicle and to avoid the head-long clash, also does not bring his case to the ordinary case of rash and negligent driving. In such cases the only punishment for such desperate, callous and cruel persons is the punishment so proposed under section 304, P.P.C. I, therefore, accept the suo motu revision petition, convert the conviction of the accused Salim-ud- Din from under sections 304-A and 337, P.P.C. To under section 304, P.P.C. And convict him accordingly. He is sentenced to ten years' R.I. The maximum punishment provided under Part II of section 304, P.P.C. With a fine of Rs,5,000 or in default thereof to undergo further one year's R.I. The fine if realised will be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
8. The revision petition filed by Salim-ud-Din petitioner is dismissed. The reference under section 438, Cr.P.C. Forwarded by the Additional Sessions Judge is disposed of accordingly.