' Badshahzada petitioner, who was employed as a driver by the Northern Area Transport Corporation (NATCO) on one !Of their buses was convicted on 29-7-1990 by a Magistrate of the 1st Class, Abbottabad under sections 279/338/304-A and 427, P.P.C. And sentenced as under:--
(a) One month simple imprisonment and a fine of Rs,200 or in default to suffer 10 days' further simple imprisonment under section 279, P.P.C.;
(b) One year rigorous imprisonment and a fine of Rs,2,000 or in default to suffer further 3 months' simple imprisonment under section 338, P.P.C.;
(c) Two years' rigorous imprisonment and a fine of Rs,3,000 or in default to suffer further 6 months' simple imprisonment under section 304-A, P.P.C.; and
(d) Six months' rigorous imprisonment and a fine of Rs,1,000 or in default to suffer further 2 months' simple imprisonment under section 427, P.P.C.
' The sentences aforesaid on each count were, however, directed to run concurrently. After realization of the fine, a sum of Rs,2,000 out of it was directed to be paid to Nawaz Khan Khalil, an injured witness, whereas Rs,3,000 was directed to be paid to the legal heirs of deceased Dr. Atique Younas. For the damages to the vehicles of Dr. Atique Younas deceased and Nawaz Khan Khalil they were directed to approach the Court of Law.
2. His appeal was dismissed by a learned Additional Sessions Judge, Abbottabad, on 10-2-1991. The convict-petitioner has, therefore, come up to this Court under section 439, Cr.P.C. To question the propriety and legality of these orders on the grounds of misappropriation or otherwise insufficient evidence adduced in this case by the prosecution.
3. The prosecution case briefly stated is that the petitioner while driving NATCO Bus No,GLT-6510 from Gilgit to Rawalpindi at first hit near Gohar Abad on Abbottabad Havelian Road Pajero Jeep No,PRJ-6308 occupied by Nawaz Khan Khalil P W from the rear which then dashed into the Gate of the Timber Depot of Gohar Abad. The same bus then had head-on collision with Suzuki Van No, DMR-2200 coming from the opposite direction and driven by Dr. Atique Younas, a younger doctor employed in Ayub Medical College, Abbottabad. In consequence, Suzuki Van driven by Dr. Atique Younas was completely smashed resulting in his instantaneous death. On the other hand, Nawaz Khan Khalil P.W. Luckily suffered simple injuries and escaped death. His Pajero Jeep was also extensively damaged. Arshad Younas P.W., a brother of Dr. Atique Younas deceased on being informed, rushed to the spot and found his brother lying dead. He lodged the report Exh.P.W.1/1 on the basis of which later on a case F.I.R. No,209 dated 26-9-1988 was registered at 8-30 hours at Police Station Havelian.
4. The prosecution allegations were duly supported at the trial by Eman Khan A.S.I. P.W., who arrived on the spot on 26-9-1988 after receiving information of the accident and took down the report Exh.P.W.1/1 at the behest of Arshad Younas P.W. He prepared the site plan Exh.P.W.5/1. He also prepared the inquest report Exh.P.W.5/2 and sent the dead body of Dr. Atique Younas to D.H.Q.
Hospital, Abbottabad. Eman Khan A.S.I. P.W., then secured the documents of all the three vehicles vide recovery memo. Exh.P.W.5/3 and Exh.P.W.5/4. He got examined Bus No,GLT-6510, Pajero Jeep No,PRJ-6308 and Suzuki Van No,DMR-2200 by the Motor Vehicles Examiner. Munawar Ahmed Motor Vehicle Examiner (P.W.6) testified to the correctness of his report Exh.P.W.6/1, according to which the accident resulting in the death of Dr. Atique Younas and injuries to Nawaz Khan Khalil P.W. Had not taken place on account of any mechanical fault. Arshad Younas (P.W.1) had supported the report Exh.P.W.2/1. The allegations that the accident had been caused due to the rash and negligent driving of the convict-petitioner were supported at the trial by Haider Zaman (P.W.2) who was present at the spot at the time of the accident. He is an independent witness having no animus for false charge. Even in the cross-examination Haider Zaman P.W. Was positive that the accident had taken place due to the rash and negligent driving of the convict-petitioner. The driving seat of the Suzuki Van No,DMR-2200 which was blood-stained was taken into possession for . Corroboration of the prosecution allegations. It was testified to by Shafahat F.C. No,812 P.W. Mr. Nawaz Khan Khalil, wrongly described as P.W.2, has testified to the fact that Pajero Jeep No,PRJ-6308 had been hit from the rear after he heard the noise of "blast" and after which he lost consciousness for a short while. After regaining his senses he found his vehicle badly damaged from rear and front. The injuries sustained by Mr. Nawaz Khan Khalil P.W. And those confirmed by Dr. Amjad Rehman were proved by the secondary evidence of Dr. Amer Nabi, Medical Officer, D.H.Q. Hospital, Abbottabad, who was conversant with the handwriting and signature of the former. Dr. Amjad Rehman could not be produced because he had left for abroad in connection with his further studies and could not be produced without undue expense and delay.
5. Mr. Abdullah Jan Mirza, learned counsel for the petitioner-convict canvassed before me the following two propositions:--
(i) That on the authority of Ragho Prasad v. Emperor AIR 1939 Pat. 388, where the rash or negligent driving actually results in the death or grievous hurt being caused to any person an offence under sections 304-A and 338, P.P.C. Is committed and accused can be convicted only under section 304-A or under section' 338, P.P.C. But not under sections 279, 338, 304-A and 427, P.P.C.;
(ii) that the petitioner-convict could not be legally convicted under section 304-A, P.P.C. Due to omission of the prosecution to establish that the death of Dr. Atique Younas deceased was the direct result of injuries suffered by him on account of the rash or negligent driving of the convict- petitioner because there was no evidence by way of postmortem or otherwise that the resultant injuries were the immediate, proximate and efficient cause of death without intervention of any other negligence and in support thereof referred to Muhammad Bakhsh v. The State 1976 P Cr. L J 405.
6. Mr. Rashidul Haq Qazi, learned counsel for the State has, however, supported the convictions recorded by the learned Magistrate and affirmed by the learned Additional Sessions Judge.
7. There is no cavil with the above-mentioned two propositions that where rash or negligent driving actually results in the death of one person and grievous hurt caused to another person, the offender would be liable both under sections 304-A and 338, P.P.C. But he cannot be legally convicted and sentenced under sections 279, 304-A and 338, P.P.C. Simultaneously. In the case of Bagho Prasad v. Emperor cited above, a Division Bench of Patna High Court held that imposition of separate sentences would not be justified where the acts constituting two different offences form part of the same transaction against the same accused. Now in the instant case, if the convict- petitioners was proved to have caused the death of Dr. Atique Younas due to his rash and negligent driving and also had caused grievous hurt to Nawaz Khan Khalil P.W., the imposition of separate sentences was justified but not otherwise because where the rash or negligent driving actually results in grievous hurt being caused to any person an offence only under section 338, P.P.C. Is committed and no offence under section 279, P.P.C. Can be said to have been committed.
Likewise, where rash or negligent driving actually results in the death of a person an offence under section 304-A, P.P.C. Is committed and there is no question of the accused being convicted and sentenced under section 279, P.P.C. As well. The two Courts below had thus erred to convict the convict-petitioner simultaneously under sections 279, 338 and 304-A, P.P.C.
8. It is conceded at the bar that in the instant case the formal postmortem examination of Dr. Atique Younas has not been conducted, and as a result of this unfortunate omission the prosecution has failed to establish that the death of Dr. Atique Younas deceased had been caused due to the injuries suffered by him on account of rash or negligent driving of the convict-petitioner.
He can be held guilty of an offence under section 304-A, P.P.C. As held in Abdul Latif v. State 1972 P Cr. L J 1095 after it was proved by the necessary medical evidence that the resultant injuries were the immediate, proximate and efficient cause, the causa causans and not merely the causa sina qua none of the death without intervention of any other negligence. This view was expressed after surveying the case-law: (1) Emperor v. Omkar Ram Partap (1902) 4 Bom. LR 679, (2) Satnarain Pandey v. Emperor AIR 1933 All. 232, (3) State of Madhya Pradesh v. Ranjit Kumar Chaterjee and others AIR 1959 Madh. Pra. 284, (4) Stya Mali v. State AIR 1964 Orissa 173 and (5) Kurban Hussain Mohamedalli Rangawella v. State of Maharashtra AIR 1965 SC 1616. This dictum of Lahore High Court was subsequently followed by the Karachi High Court in the case of Muhammad Baldish v.
The State 1976 P Cr. L J 405.
9. From the above discussion it is obvious that the prosecution has not been able to establish its case against the convict-petitioner under section 304-A, P.P.C.
10. Nawaz Khan Khalil P.W. Was examined soon after the occurrence at D.H.Q. Hospital, Abbottabad and he is not shown to have suffered any grievous injury. No doubt injuries 1, 3, 4 and 5 described in the injury sheet Exh.P.W.8/3 were simple in nature whereas injury No,2, namely, left hand was swollen and X-ray was advised. No result of X-ray was brought on the file to show any fracture of the left hand. So this injury can also be taken to be simple C in nature. The convict-petitioner cannot, therefore, be legally convicted and sentenced under section 338, P.P.C.
11. At the same time, I am unable to agree with the contention of the learned counsel for the petitioner that the Bus was not being driven by the petitioner-convict rashly or negligently. So far as the allegations of rashness and negligence are concerned there is ample evidence on the record to show that the petitioner was driving the bus at a very high speed. The perusal of the site plan Exh.P.W.5/1 would show that while overtaking, in very high speed, Pajero Jeep No,PRJ-6308, the petitioner-convict due to rashness and negligence hit the rear of the said jeep and with the bump the jeep had skidded from Point 1 to Point 2 and then to Point 3 which is distant about 143 feet and hit the Pillar of Gate of the Timber Market, Gohar Abad, and thus front thereof was smashed. It was thereafter that the Bus collided head-on with Suzuki Van No,DMR-2200 being driven, from opposite direction, by Dr. Atique Younas deceased, which after being hit was pushed by the Bus up to Point 6 from Points 4 to 5 which is 27 feet in length. The site plan prepared by Eman Khan A.S.I. P.W. With all its notes was not seriously challenged by the convict-petitioner when he appeared in the witness-box. Apart from this, as stated earlier, the evidence of Haider Zaman P W. Supports the prosecution case that the petitioner-convict was driving his bus not only rashly but also negligently.
12. For the foregoing reasons, I find that the case against the convict-petitioner under sections 304- A and 338, P.P.C. Has not been made out. His conviction and sentences under these two sections are set aside and he is acquitted. Nonetheless, the convictions of the petitioner under section 279 read with section 427, P.P.C. Are upheld. He is sentenced under section 279, P.P.C. To rigorous imprisonment for two years and fine of Rs,3,000 or in default to suffer further simple imprisonment for six months. His sentence to six months' rigorous imprisonment under section 427, P.P.C. And a fine of Rs,1,000 or in default to suffer two months' simple imprisonment is maintained. However, the sentences of imprisonment shall run concurrently.
13. With the above modification in the convictions and sentences, this criminal revision is dismissed.