' Ch. Faqir Muhammad a Sub-Divisional Officer of Canal Department, was convicted and sentenced to pay Rs, 100 or in default thereof to undergo one month's S. I. Under section 338, P. P. C.
And Rs, 50 under section 337, P. P. C., or in default of the same, to undergo fifteen days' simple imprisonment vide judgment of the learned Additional District Magistrate, Montgomery dated 12- 10-1964. On appeal the learned Sessions Judge, Montgomery, vide his judgment dated 9-12-1964, set aside his conviction under section 337, P. P. C. But maintained his conviction and sentence under section 338, P. P. C. With the above modification, he dismissed the appeal of the petitioner.
He also dismissed the revision petition which was filed against the inadequacy of the sentence with the prayer that the same may be enhanced.
2. Hence, this revision petition which was admitted by this Court on 17-3-1965.
3. The brief facts of the case are that on 16-3-1964 at about 11-30 a.m. Faqir Muhammad petitioner was driving his Car No, LEB-1294 and struck against a scooter which was being driven by Muhammad Halim Khan P. W. 3 while Shahid Imran P. W. 9 was sitting behind him. The accusation against the petitioner was that he did not blow the horn and failed to give indication as to which side he was going to take his turn. This accident occurred near the exit gate of the Canal Colony, Sahiwal. In this accident, Shahid Imran suffered two injuries, one on his hand and the second on the thigh, in the form of laceration and abrasion which were found to be simple in nature. Similarly, Muhammad Halim Khan P. W. 3 who was medically examined on the same day, was found to have suffered ten injuries on different parts of his body, out of which injury No, 1 which was a lacerated wound 1/2 ` X 1/4 " X bone deep on the front of the nose in its upper one-third, was declared grievous and the remaining injuries were found simple.
4. The petitioner pleaded not guilty to the charges and took up the plea that this accident took place while his driver Muhammad Sharif D. W. Was driving his car and the petitioner was sitting in the rear seat. He controverted the allegation of the prosecution by submitting that it was the complainant party which was driving the scooter on a rash speed and struck his car driven by his driver when the car was hardly at a speed of two miles per hour. He complained that his car was badly damaged and was no more in working order and therefore, he has suffered more loss in this unfortunate accident which had occurred due to rash and negligent driving of both the injured witnesses.
5. Learned counsel for the petitioner has drawn my attention to the observation of the learned trial Court in its judgment which runs as follows:- "I am clearly of the opinion that the accused and P. W. 3 Muhammad Halim Khan were both driving their vehicles rashly and negligently at a fast speed with the result that they could not control their vehicles and the accident took place"
' Learned counsel has submitted that this pertinent observation by the learned trial Court was not taken into consideration by the learned Sessions Judge while he addressed himself to the facts of this case. With this observation it stood concluded that both the parties were at fault and therefore, it was a pure accident to which both the parties had fully contributed. Learned counsel pointed out that this observation would damage more the case of the prosecution than that of the defence as it is also on the record that the occurrence took place when the petitioner was emerging out of the exit gate while the complainant party was riding their scooter in a prohibited area of canal colony on a high speed. It was argued that a person who is taking his turn while he is close to his destination would never be on a high speed whereas a person on the main road would be running freely as his destination was not near in sight. It was also contended that the petitioner was a senior officer of more matured age than the two students riding on the scooter and thus presumption would go in favour of the petitioner that if he was driving himself, he would not be driving fast and even his driver would not do the same as his master was sitting behind him whereas the tendency of the students is just the opposite who enjoy speed which is privilege of their youth.
6. 1 have given my anxious thought to all these contentions raised by the learned counsel for the petitioner and find them quite forceful. The observation of the learned trial Court to which the learned counsel has pointed out is very much part of its judgment and the same has not been alluded or referred to by the learned Sessions Judge and it seems that he has not fully applied his mind to the facts of this case. I also do not find any cogent reasons for the trial Court as well as the learned appellate Court to reject the evidence of two D. Ws. Who were the most natural witnesses of the occurrence. One of them accepted the responsibility of driving the car at the relevant time whereas the other was person who was expected to be present at the Rest House being in charge of the place. Both the injured witnesses were even otherwise nothing but intruders as it is a common knowledge that the canal colony is meant only for the exclusive use of the residents of that locality which comprised mostly officers of the canal department. I am impressed by the argument of the learned counsel for the petitioner that the speeding is never done by the responsible officers while the indulgence of the same, by young generation is more plausible. This presumption gains further strength from the fact that according to the site plan and the evidence on the record in support of it, it has been established that the car of the petitioner did leave the metaled part of the road to give way to the speeding scooter. Moreover, there was no earthly reason either for the drive or for the petitioner to drive the car in a fast manner when they had to turn in to the Rest House because as at the time of taking turn, the vehicle I always put to low speed. What I feel is that all these important aspects of the case coupled with the observation of the learned trial Court have escaped the notice of the learned Sessions Judge while deciding the fate of this case. If these important factors would have been given due weight and consideration, I am sure, it would not have been difficult for both the Courts below to arrive at a conclusion that the prosecution had not succeeded in establish ing its case against the petitioner beyond reasonable doubt.
7. In the light of the above discussion, I accept the revision petition. Set aside the conviction and sentences of the petitioner and acquit him. The amount of fine if paid by him, shall be refunded to the petitioner,