' Haris Khan (30) son of Shakkar Khan, resident of Kakul, Tehsil and District, Abbottabad, was tried under sections 279, 338 and 427, P.P.C. For having caused on 8-7-1988 at 2115 hours by his rash and negligent driving of Suzuki Pick-up No, KH-705 while turning to Kakul, six injuries to Taj Muhammad and 10 injuries to Zahid Baig P.Ws. Who were riding motor-bike No, ADA, 9216. The learned Magistrate by his order dated 24-4-1991 sentenced the convict-petitioner to rigorous imprisonment for 2 months and a fine of Rs, 1000 or in default to undergo 15 days S.I. Under section 279, P.P.C; to rigorous imprisonment for two months and a fine of Rs, 1,000 or in default to undergo 15 days S.I.
Under section 338, P.P.C. And to undergo rigorous imprisonment for two months and to pay a fine of Rs,1,000 or in default to suffer 15 days' S.I. Under section 427, P.P.C. All the sentences of imprisonment were, however, directed to run consecutively. The fine of Rs,1,000 on realization was directed to be paid to each one of the injured namely, Taj Muhammad and Zahid Baig under section 544-A, Cr.P.C. By way of compensation.
2. The convict-petitioner feeling aggrieved went in appeal to the learned Additional Sessions Judge, Abbottabad, who by his order dated 25-4-1991 admitted the convict-petitioner to bail pending trial. Subsequently on 5-12-1992 while dismissing his appeal again admitted him to bail the convict-petitioner under section 426(2), Cr.P.C. On furnishing bail bonds in the sum of Rs,20,000 with two local reliable sureties each in the like amount to his satisfaction without realizing that the convict-petitioner has remained absconder from 5-10-1988 to 7-10-1989 till his arrest in December, 1989.
3. The convict-petitioner feeling still dissatisfied has come up in revision to this Court to question the priety and legality of his conviction and sentence as aforesaid.
4. Briefly the facts of the case are that at about 2115 hours on 8-7-1988 while Zahid Baig (P.W.3) was driving his Motor-bike No,ADA-9216 and Taj Muhammad (P.W.2) was occupying its rear seat and were on their way from Sikandar Abad (Supply Bazar) towards Abbottabad. When they reached near Kakul Turn on Abbottabad Mansehra Road, Suzuki Pick-Up No, KH-705 without lights and without any indicator suddenly turned towards Kakul Road and hit the Motor-bike as a result of which both the P.Ws. Fell on the ground and sustained multiple injuries. The convict-petitioner was driving Suzuki Pick-;Up No, KH-705. Instead of helping the two injured witnesses to rush them to the hospital for immediate medical aid he fled away along with Suzuki on Mansehra Road. A chase was given to him by Muhammad Salim (P.W.4) who was driving at that time Suzuki Pick-Up No, ADA-636 and brought the convict-petitioner and his Suzuki Pick-up on the spot. When the convict-petitioner reached the place of occurrence he again escaped and was again chased by Muhammad Salim (P.W.4) and 'caught hold of near C.S.D. Crossing at Abbottabad. By this time the police party also arrived and the convict-petitioner was handed over to them. The two P.Ws. Aforesaid were rushed to the D.H.Q. Hospital, Abbottabad, where, as stated earlier, Zahid Baig (P.W.3) who was driving the Motor-bike sustained as many as 10 multiple injuries.
5. Dr. Saleem Akhtar Radiologist, D.H.Q. Hospital, Abbottabad (P.W.6) had on X-Ray examination of both Zahid Baig and Taj Muhammad P.Ws. Found that Taj Muhammad had a fracture of lower end of fermur bone and upper end of tibia. Similarly X-Ray film of both of the hands showed fracture of multiple metacorpal and phalanges.
6. The prosecution examined as many as 9 witnesses.
7. Zahid Baig and Taj Muhammad P.Ws.2 and 3 were categorical that the Suzuki No, KH-705 being driven by the convict-petitioner at the relevant time was without Head-Lights and Indicators while turning from the main Abbottabad-Mansehra Road towards Kakul side and on account of his rash and negligent driving hit the Motor-bike being driven by them. Muhammad Salim (P.W.4) deposed that he was driving Suzuki Pick-Up No,636 on the night of occurrence at about 8.30 p.m. To 9.30 p.m. When he reached the spot he saw the two persons lying injured at the Kakul Turn on Abbottabad-Mansehra Road. He stopped his vehicle at the place of occurrence. In the meantime a Jeep also reached the spot from the direction of Supply Bazar and his driver informed him that the driver of Suzuki Pick-Up No, KH-705 had driven away towards Mandian. Accordingly Muhammad Salim (P.W.4) chased him and stopped his vehicle near Jab Bridge and brought him to the scene of occurrence. Again the convict-petitioner escaped from the spot and was apprehended by him near C.S.D. Chowk, Abbottabad, and was again brought back to the place of occurrence. At this juncture the local police of Police Station, Abbottabad Cantt. Arrived and arrested the convict- petitioner. Kaleem (P.W.8) had appeared in the witness-box and testified to the fact that Suzuki Pick-Up No, KH-705 was being driven at a very high speed on the night of occurrence and while turning towards Kakul had hit Motor-bike No, ADA9216. This witness was driving his vehicle Suzuki Pick-up No, ADA-430 at a distance of about 10 feet behind the vehicle of the convict-petitioner when the accident had taken place.
8. After appraising the evidence produced before him the learned Magistrate, First Class, Abbottabad, who had tried the accused-convict, found him guilty of all the three offences with which he had been charged and sentenced him as aforesaid.
9. Mr. Amanullah Khan Jadoon, learned counsel for the convict-petitioner, contended at the first instance that the accident had taken place due to the contributory negligence of P.W. Zahid Baig who was driving the Motorbike dashing it into Suzuki Pick-Up No, KH-705 at the rear side of the vehicle. On the authority of "Muhammad Aslam v. State" (1986 PCr.0 1049) the learned counsel then canvassed before me the proposition that where the rash or negligent driving actually results in the death or grievous hurt being caused to any person, an offence under sections 304 and 338, P.P.C. Is committed then the accused can be convicted only either under section 304 or under section 338, P.P.C. But not under sections 279, 338 and 427, P.P.C. Simultaneously,
10. Mr. Muhammad Aslam Khan, learned A.A.-G. Appearing on behalf of the State, has, however, supported the conviction recorded by the learned Magistrate and confirmed by the learned Additional Sessions Judge, Abbottabad.
11. There is not an iota of evidence on the file to suggest that Taj Muhammad (P.W.2) and Zahid Baig (P.W.3) while on their way from Sikandar Abad to Abbottabad on the Motor-bike were guilty of any contributory negligence in the accident in which they had sustained multiple injuries. On the other hand, both the Courts below have rightly found the convict-petitioner guilty of rash and negligent driving of his Suzuki Pick-Up No, KH-705 at the time and place of occurrence casuing serious injuries to both the P.Ws.
12. There is, however, no cavil with the proposition that where rash or negligent driving actually results in the grievous hurt caused to another person, the offender would be liable either under section 279, P.P.C. Or under section 338, P.P.C. But he cannot be legally convicted, and sentenced under sections 279 and 338, P.P.C. Simultaneously. In a recent case of "Badshahzada v. The State"
(Cr.R. No,5/1991=1993 PCr.LJ 699), decided by me on 23-121992, after reviewing Ragho Prasad v.
Emperor (AIR 1939 Patna 388) and Abdul Latif v. State (1972 P.Cr.LJ 1095) I have held the view that imposition of separate senfences would not be justified where the acts constituting two different offences form part of the same transaction against the same accused. To the same effect is also the precedent case of Muhammad Aslam v. State (1986 PCr.LJ 1049) cited by the learned counsel for the convict-petitioner. Now in the instant case, as the convict-petitioner has been proved to have caused grievous injuries to Taj Muhammad P.W.2 as well as to Zahid Baig P.W.3 due to his rash and negligent driving, the imposition of separate sentence both under sections 279 and 338, P.P.C.
Was not justified. It is by now settled law that where the rash and negligent driving actually results in grievous hurt being caused to any person an offence only under section 338 is committed and no offence under section 279, P.P.C. Can be said to have been committed. The two Courts below had thtis erred to convict the petitioner simultaneously under sections 279 and 338, P.P.C.
13. From the above discussion it is obvious that the prosecution has not been able to establish its case against the convict-petitioner under section 279, P.P.C. Whereas there was every justification for the conviction of the convict-petitioner under sections 338 and 427, P.P.C. The conviction and sentence off D the convict-petitioner under section 279 is thus not sustainable, which is accordingly set aside.
14. For the foregoing reasons I find that the case against the convict-petitioner under section 338 read with section 427, P.P.C. Has been made out. His convictions thereunder are maintained. In so far as the sentences are concerned the convict-petitioner had undergone 3 days imprisonment after his conviction and a few days during the trial. He was again taken into custody on 6-2-1993 and has remained behind the bars till today. His sentences of imprisonment under sections 338 and 427, P.P.C. Are, therefore, reduced to that already undergone by him. In so far as the sentences of fine and compensation are concerned the complainants have compromised with convict petitioner and have expressed to be granted pardon therefor. The orders of realization of fine and its payment by the convict-petitioner to the two injured witnesses are, therefore, set aside. The accused shall be released forthwith if not warranted in any other.
15. It is with regret to observe that the order of enlargement of the accused-petitioner on bail after finding him guilty of the offences under sections 338 and 427, P.P.C. By the learned Additional Sessions Judge to say the least, was highly deplorable after confirmation of sentence of imprisonment of two months on each count. A copy of this judgment shall be communicated to the learned Additional Sessions Judge, Abbottabad, for his further guidance.