The appellant was tried under section 304-A, P. P. C., by the Sessions Judge, Nawabshah who by his judgment dated 27th January, 1971 convicted him of the said offence and sentenced him to R.I for 18 months and a fine of Rs. 1,000 (in default of payment of fine R.I. For one, year more). The appellant has filed an appeal through. Mr. Rashid Ahmad, Advocate who has appeared and argued the case. Mr. Abdul Hafiz Memon, Advocate General has appeared for the State.
2. Briefly stated the facts of the case are that on 22-6-1969 at about 5 p.m. The appellant was driving a truck bearing No. HDA-4142 on Sukrand Road, within the Town of Nawabshah and while so driving he knocked down Mst. Zahida, a baby girl who was at that time passing alongwith the road and was going to her house. The truck that was being driven by the appellant was loaded with `Bujri' and was said to be driven at a fast speed. According to some witnesses the speed of the truck was 30 to 40 miles per hour at that time. The evidence further discloses that the truk hit the deceased Mst. Zahida and ran over the child by rear wheels, thereby causing her instantaneous death.
3. Malook (P. W. 1) who saw this incident lodged the report at Police Station Nawabshah Town at 5- 30 p.m. This report is Exh. 5 and was recorded by S. H. O. Jan Muhammad (P. W. 4). The Police Officer then visited the scene of offence and prepared a Mashirnama (Exh. 8) of the scene of occurrence, and inquest report (Exh. 9) in presence of Shahnawaz (P W. 3). The Investigating Officer examined Faiz Muhammad (P. W. 2) and Muhammad Hassan (P. W. 5) as eye-witnesses of the incident. The dead body was examined by Dr. Muhammad Sadiq whose evidence has been brought on the record of the Sessions Court as Exh.
16. The Medical Officer found that the deceased girl had lacerated wounds both on the head and abdomen. All the parietal bones of the deceased had been fractured into pieces and the brain matter had come out. Intestines of the deceased girl had also come out and her liver was ruptured. On conclusion of the investigation the appellant was sent up for trial which has resulted in his conviction and sentence as aforesaid.
4. At the trial the prosecution examined Malook, Faiz Muhammad and Muhammad Hassan as eye- witnesses of the incident. Besides the aforesaid witnesses, Shah Nawaz Mashir was examined and S. H. O. Jan Muhammad also appeared to give evidence. The appellant ire leis statement admitted that he was driving the vehicle in question and that he was driving the same at a slow speed and had full control over the vehicle. He further stated that his speed was less than 20 miles per hour and that deceased Zahida came firing across the road and hit the rear wheel of the left side of the truce. He further stated that he blew the horn on account of which deceased Zahida was frightened and came running and hit the rear wheels of the truck. He admitted that Sukrand Road, the place where this incident occurred, is the busiest road at Nawabshah Town, thereby suggesting that he could not possibly have driven the vehicle at a fast speed. The appellant examined one Noor Hassan as defence witness who has stated that the vehicle in question was being driven at a slow speed and that the appellant had blown a horn. He further said that he saw a girl crying and the truck was stopped. This defence witness has not stated that he saw that the girl had died and in cross-examination the witness had stated that his truck was at a distance of one furlong from the truck of the appellant at the time of the incident. The defence witness has been rightly disbelieved by the trial Court as according to his own evidence he could not have seen the incident.
5. The direct evidence in this case has been given by three eye-witnesses Malook, Faiz Muhammad and Muhammad Hassan. Malook has lodged the F.I.R. Within half an hour of the occurrence. 1n the report he has stated that the vehicle which was driven by the appellant was loaded by `Bujri' and was running at a high speed. It had overrun the deceased Zahida thereby crushing her and causing her death on the spot. In his evidence he has given the speed of the vehicle at 30 to 40 milers leer hour and he has further stated that both the front and rear wheels of tile truck were stained with blood. He bas also stated in his evidence that he did not hear the toot of any horn. The learned Advocate for the appellant hays relied on a statement made by this witness in the Committal Court where lie had stated that ire vehicle was being run at a moderate speed. The estimation of a speed is always a matter of guess and even when the witness says that the speed of the vehicle was 30 to 40 miles per hour, I can only take it to be an approximation. The salient features of this case art that the incident had taken place at Sukrand Road, which is said to be the most busy road in the Town of Nawabshah and further it is clearly established on the record that the vehicle of the appellant stopped at a distance of about 20 feet before coming to stand still. It is also fully established on the record that before the actual impact the applicant did not even below the horn. These circumstances is the case are, fully supported by the evidence of eye-witness Faiz Muhammad who has stated that the truck was moving at a speed of 30 to 40 miles per hour and did not blow the horn and that the truck came to stand still at a distance of 20 paces from the point of impact. This show that the Truck which was heavily loaded was moving very fast in a crowded locality.
Shahnawaz, the Mashie of the scene of offence leas also stated that the truck came to stand still after moving 20 feet and both the front and real wheels of the truck were stained with blood. This circumstance clearly shows that the deceased girl was run over by the rear wheels of the track and that the From wheels may have been got stained with blood on account of the original impact. The circumstance is not incompatible with the prosecution case and it appears that while the deceased girl was hit by the front wheels and after having been so hit she fell on the ground.
Thereafter the rear wheels of the truck ran over the body. This interpretation is quite compatible with the evidence of P. W. Faiz Muhammad who in cross-examination had stated that the girl was run over near the rear wheels of the truck.
6. As already stated, the evidence of the defence witness has not supported the appellant and I have no hesitation in rejecting his evidence because admittedly he was at a distance of one furlong from the place where this incident occurred. Moreover, in his evidence he has not at all spoken about the death of the deceased girl. He appears to be interested as be had come to the Court without any summons.
7. Summing up the case, I find that the vehicle was being driven fast on a busy road like Sukrand Road. The speed can be inferred from the fact that the vehicle moved at least about 15 paces even after impact. It seems to be a case where the appellant did not even care to blow the horn or to use the brake. I am convinced that deceased Zahida met her death on account of the rashness of the appellant.
8. The learned Advocate for the appellant has stated that the eye--witnesses should not be believed because they are chance witnesses. I have no difficulty in repelling such contention because witnesses seeing a road-side accident must always be on the road rather than in their houses. The learned Advocate has not been able to point out any circumstance to indicate that the witnesses could not have been present at the time of the incident. Witness Muhammad Hassan was even named In the F.I.R. The learned Advocate-General appearing for the State has also supported the conviction of the appellant.
9. For all these reasons I dismiss this appeal. The appellant, who is on bail must surrender to serve out his sentence.