The petitioner Abdul Ghani a taxi driver, was tried by the learned A. C. M. No. 26, Karachi and convicted by him under section 338, P. P. C. As he was found by the Magistrate to be driving his taxi rashly and negligently whereby he hit Lai Mohammad (P. W. 2), who sustained injuries. The applicant was sentenced to six months' R. I. He then appealed against his conviction and sentence to the Court of Session, Karachi and his appeal was dismissed by the learned Second Additional Sessions Judge, Karachi on 11-3-1971. He has now filed the present Revision Application against the judgment of the Second Additional Sessions Judge challenging his conviction and sentence aforementioned.
2. The facts of the prosecution case as gleaned from the material P. Ws. Briefly are these. The present incident is said to have taken place on 10th of October, 1969 at 2-30 p. m. On the Jehangir Road near Enquiry Office, Jehangir Road West. The F. I. R. It appears was lodged at 8-30 p. m. The same day, although it has not been brought on record as an exhibit because the Investigating Officer, who recorded it has not been examined by the prosecution for reasons not known as they do not appear on the record. At the said time of the incident P. W. Lal Mohammad (injured) i.e. About 3 p. m., according to him, after saying prayers he was on his way to his house. According to him, he was standing on a footpath near his shop. He then saw one car coming from Guru Mandir side in a fast speed. That car dashed against him as a result of which he received injuries and fell down unconscious. The incident was witnessed by Mohammad Jamal (P. W. 1) and Choudhry Zahid Gul (P. W. 3). P. W. Mohammad Jamal has given the description of the car which collided against P.
W. Lal Mohammad and injured him and he has said that it was a taxi bearing No. KAU 8635 which was coming in a fast speed and it hit the injured while the latter was standing on the footpath. This witness then immediately engaged another taxi and put the injured in it and removed him to the Civil Hospital for treatment etc. P. W. Choudhry Zahid Gul, the third eye-witness has further disclosed that he saw taxi coming from Guru Mandir side and it was on its way towards Tin Hatti. He then heard the sound of crash and saw that the taxi bad hit a person who was crossing the road and fell down on the ground. He was seriously injured and was bleeding from his head. It is not known from the record of evidence in the paper book as to who lodged the First Report and, therefore, at what time. Anyhow, the evidence of Mohammad Ayaz (P. W. 4) who was S. H. O.
Jamshed Quarters on the date of the incident shows that Sub-Inspector, Police Nooruddin investigated the present case and he had completed the investigation whereafter he placed the papers before this S. H. O. On 6-12-1969. The S. H. O. Verified the statements and submitted charge- sheet against the present petitioner in Court. Motor Vehicle Inspector Amir Nawaz (P. W. 5) on the next day of the incident had inspected the taxi of the petitioner which was a Baby Taxi Car. No. KAU 8635 at Jamshed Quarters Police Station. He noticed no mechanical defect in the car. He, however, found the following damage done to it:-
(1) Front wind screen broken.
(2) Front left side bonnet dented.
He then prepared such a report, which he has produced as Exh. 6/A and bears his signature.
3. The petitioner when questioned at the trial under section 342, Cr. P. C. Stated denying his guilt that it was not a fact that he was driving the taxi in a rash and negligent manner. According to him, he was going at a normal speed on his own side and his taxi did not hit the injured but it was the injured who came and struck with his taxi in the mud-guard. Regarding the P. Ws. He said that they were the police witnesses. Lastly, he stated that he was innocent and he was coming from Guru Mandir with three passengers in his taxi. After the accident he asserted that he took the injured to the hospital alongwith those three persons.
4. The petitioner led evidence in defence and examined two witnesses, first of them is Haji Dm Mohammad and the second is Mohammad Safdar.
5. It will be seen from the statement of the petitioner that the injured P. W. Lai Mohammad did collide against the taxi of the petitioner as admitted by him and there appears no doubt that he was thereby injured. Further on this question, we have the evidence of Dr. Mohammad Alimul Haque (P. W. 6) who examined injured P. W. Lal Mohammad on the date of the incident at 3-20 p. m. And found the following four injuries on his person:-
(1) Two lacerated wounds on occiput each of 2' x --' x skin deep.
(2) Haematoma forehead 1' x 1'.
(3) Multiple abrasion all over back each of 4' x 3'.
(4) Abrasion left and right knee each 1' x 1'.
According to the doctor the injuries Nos. 1 and 2 were reserved for opinion later on and Nos. 3 and 4 were simple. He also stated that the injuries appeared fresh could be caused by blunt and bard object which can be a moving vehicle. On 24-11-1969 he issued a supplementary medico legal report in respect of the reserved injuries which stated that X-ray of the skull of the injured was taken which showed fracture of vault of skull. Thus, the nature of injury No. 1 was grievous and that of No. 2 was simple. The medical evidence thus shows that the injured Lal Mohammad received one grievous injury which was the fracture of the vault of his skull and three other simple injuries.
The medical evidence is obviously beyond challenge as such the fact is conclusively proved by the prosecution that P. W. Lal Mohammad was in fact injured by coming into contact with the taxi of the petitioner as admitted indirectly by the petitioner himself in his statement which has been reproduced above already.
6. The petitioner has been convicted under section 338, P. P. C. As already stated and the relevant portion of this section which has been applied to him is as follows:-- "338. Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."
The charge framed against the petitioner is Exh. 10 on record and it states that the petitioner by rashly and negligently driving his taxi at the scene of offence had injured grievously P. W. Lal Mohammad, who was standing on the footpath. Therefore, the appellant has been convicted for having driven his taxi both rashly and negligently which finding has been recorded by the trying Magistrate and also upheld in appeal by the Second Additional Sessions Judge. As already stated the fact that P. W. Lal Mohammad was injured by the taxi of the petitioner is an admitted position on record but the question that still remains is whether the petitioner was driving his taxi rashly and/or negligently as a result of which he hit P. W. Lal Mohammad and caused him grievous injury as well as simple injuries. The learned counsel for the petitioner has challenged this finding and has contended that the evidence of the three eye-witnesses in this case, which is the only evidence against the petitioner regarding the main incident, does not prove the element either that the petitioner was driving his taxi rashly and/or negligently at the time of the incident as a result of which P. W. Lal Mohammad was injured. But according to the counsel P. W. Lal Mohammad had himself suddenly crossed the road as a result of which this accident took place with the taxi of the petitioner for which the petitioner cannot be held at fault.
7. For deciding this question we have to refer to the evidence of the three eye-witnesses who are firstly P. W. Lal Mohammad injured himself, secondly, P. W. Mohammad Jamal and thirdly Choudhry Zahid Gaul. According to the injured P. W. Lal Mohammad he was standing on the footpath when the taxi of the petitioner came and dashed against him, as a result of which he received injuries and fell down unconscious. He has in his cross-examination regarding the speed of the taxi said that since the petitioner's taxi hit him while he was standing on the footpath he, therefore, presumed that the petitioner must be coming in a very fast speed but he has not actually specified the speed himself. His evidence leaves an impression on my mind that he is unable to say at what speed the taxi of the petitioner was coming at the time it dashed against him. It is also to be seen whether the word of the injured that he was standing on the footpath when the taxi struck him is correct or not? On this point, however, the injured is supported by P. W. Mohammad Jamal, who says that he was standing at the time of the incident on the opposite side of the road on the footpath and the injured P. W. Lal Mohammad was standing on the other footpath opposite him on the road. This witness then saw a taxi which was coming in a fast speed and it was the taxi of the petitioner. He then saw that the driver dashed against the injured and hit him who fell down on the road. This witness then removed the injured in another taxi to the hospital. The third eye-witness P.
W. Choudhry Zahid Gut, however, does not support the complainant P. W. Lal Mohammad nor P. W.
Mohammad Jamal when they say that the injured Lal Mohammad was standing on the footpath when the taxi of the petitioner came and dashed against him. This witness Choudhry Zahid Gut states that he saw that a taxi came from Guru Mandir and on its way towards Tin Hatti. He then heard the noise of the crash. According to him, the taxi hit a person who was crossing the road and he fell down on the ground. He was seriously injured and was bleeding from his head. He also says that he saw the accident from a distance of about 10-15 yards. He admitted in his cross- examination that the injured person was in the walking speed at the time of the accident, and that the injured was not crossing the road on the Zebra crossing. This witness, however, has not stated that the taxi of the petitioner was coming at a fast speed. However, it will be seen from the above discussion of the evidence of the three eye-witnesses that of them very specifically and clearly it is only P. W. Mohammad Jamal who says that the taxi of the petitioner was coming at a fast speed when it struck against injured Lal Mohammad. The injured Lal Mohammad himself is not sure whether the taxi was coming at a fast speed or not but he presumed, as he says in his evidence, that it was coming fast and this presumption, in my opinion, on his part is difficult to rely on. The third witness P. W. Choudhry Zahid Glut has not at all stated that the taxi of the petitioner was coming at a fast speed. So that we have the word of only one of the prosecution eye-witness who says that the taxi was coming at a fast speed at the time of the occurrence. Merely from this statement by one witness that the taxi was coming at a fast speed it cannot be presumed that the petitioner was driving the taxi rashly and/or negligently. On this point and on similar facts when in other cases several witnesses have said that the vehicle was coming at a fast or full speed when it collided against another person it has been held in those cases which have been cited by the learned counsel for the petitioner that it can--not be thereby said that the driver of the vehicle must be driving it rashly and/or negligently. These are two cases which are the case of Abdullah v.
The State and the case of Ghulam Mohammad v. The Crown, which cases are reported respectively as (1968 P Cr. L J 1416) and (PLD 1953 Lah. 260). In the first mentioned case which is a case under section 304-A, P. P. C. Involving the ingredient of rash and negligent act it was held that mere statement of the prosecution witnesses that bus carrying 40 or 50 passengers was being driven by the accused "at a very fast speed" without giving particulars would not necessarily indicate that bus was in fact being driven at a fast speed in absence of indication as to approximate actual speed. In the second reported case it has been held as follows:- "Whether or not the petitioner was rash and negligent is a question of fact about which the Court has to form an opinion, on consider--ing 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.
The mere fact that the lorry was going at a 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. It was held that the accused who was driving the vehicle was not guilty under section 304-A, P. P. C."
So that it will be seen from the above-mentioned two reported cases that merely because one witness in the instant case has said that the taxi of the petitioner was coming at a fast speed it would not thereby be sufficiently established that the petitioner was rash and negligent in driving.
There is no other material on the record to lead to this conclusion also. For proving this element of rash and negligent act it has been held in the case of Mohammad Yakub Rathore v. The State (1968 P Cr. L J 1438) that the prosecution must conclusively establish by direct evidence that the accused was rash and negligent. When there was no evidence to prove that accused was guilty of rash or negligent act while driving his rickshaw, his conviction under section 304-A was set aside. In the instant case also, in my opinion, merely from the evidence of one witness who has also admittedly said that the taxi of the petitioner was coming at a fast speed it cannot thereby be concluded that the prosecution has proved conclusively by direct evidence that the petitioner was rash and negligent. This is the essential ingredient of section 338 of the Pakistan Penal Code under which the petitioner has been convicted. This necessary ingredient not having been proved by the prosecution in the instant case beyond a reasonable doubt I am of the opinion that the petitioner is entitled to be acquitted.
8. The evidence on record considering particularly the admissions of P. W. Choudhry Zahid Gut leaves an impression on my mind that the injured P. W. Lal Mohammed suddenly crossed the road while the taxi was coming and, therefore, it was hit by the taxi which would amount to a case of accident due to the fault of the injured himself and the petitioner cannot be held liable for it criminally.
9. Accordingly, for the foregoing reasons I acquit the petitioner of the charge under section 338, P. P.
C. And set aside his conviction and sentence. He is on bail and his bail bonds shall stand cancelled.