CH. IJAZ AHMAD. J.- The learned-Magistrate Section 30. Sahiwal vide his judgment dated 18.9.1985 has convicted and sentenced the appellant for the accident, took place due to his rashness and negligent driving and causing death of 10 deceased persons as well as for the injuries suffered by Dilawar Hussain PW-8 and others as follows:- L Sections Sentences.
Ghulam Hussain s o Khushi 304-A PPC 5 sears' R.I. With Muhammad, aged 37 years. Fine of Rs.50,000 - default, one sear S.I ' -do- 337-PPC R.I. For six months.
It is pertinent to mention, here that both the sentences shall run consecutively.
2. The convict has tiled Criminal Appeal No. 169 of 1985 against his conviction and sentence.
3. The, occurrence took place on 5.8.1981 at 2.30 p.m. Near Railway- Phatak. Kassowal Adda. District Sahiwal at a distance of one mile from the Police Station Kassowal. Raja Imtiaz Ali PW-1 reported to Zawar Hussain, ASI PW7, who recorded his statement Ex.PA on the same day at 2.45 p.m. And sent the report to the Police Station for formal registration of the FIR. Which was recorded by Muharrir Head Constable Akbar Ali Ex.PA A.
In the FIR. The occurrence has been taken place allegedly as follows:- According to the story given by the complainant Raja Imtiaz Ali. On 25.8.1981. He had gone to purchase ice for his hotel which is located at Adda Kassowal from a nearby Ice-factory situated near the Railway Crossing of Kassowal. He was standing on the road side along with Abbas and Khushi Muhammad PWs. At about 2.30 p.m.. Bus No. 3650-LH of Pak Delux Bus Senice Chaudhry Group. Multan, had arrived there from Multan side which was going towards Lahore. It had crossed the Railway Crossing Kassowal at a high speed. It had reached the "More" (tum) across the Crossing when Bus No. 8100-LEZ had also arrived. The driver of Bus No. 3650-LH had tried to cross Bus No. 8100-LEZ rashly but it had collided with it due to rash and negligent driving of the driver. The driver of Bus No. 8100-LEZ had also acted in rashness and negligence because he had not applied the brakes on noticing Bus No. 3650-LH coming. As a result of this collision. Riaz Hussain. Ata Muhammad. Dr, Noor Muhammad. Mst. Sharifan. Mst. Sajida. Rashid. Mst. Rashida Bibi. Rizwana Faruq and an unknown person; passengers of Bus No. 3650-LH had died in the bus. Besides these deceased persons. Shah Nawaz. Faruq Haider. Mst. Shaheena. Mst. Ruqayya. Mst. Sharifan. vs Jannat. Mst. Saidan and Dilawar Hussain had received injuries. At the time of accident, Bus No. 3650-LH was being driven by accused Muhammad Aslam while Bus No. 8100-LEZ was driven by Ghulam Hussain accused.
4. Dr. Muhammad Arshad Rana examined the dead body of Dr Noor Muhammad, aged 40/45 years and found the following injuries on 25.8.1981 as follows:-
(1) Cervical venibral column dislocated.
(2) lacerated wound 3 x 2 cm on inner side of right elbow.
(3) Multiple abrasions on back of right elbow.
(4) Contusion 2 x 1 cm on front of right leg.
(5) Contusion 2 x 1 cm on inner side of left leg upper part.
The opinion of the doctor-is as follows':- The cause of death in my opinion was due to shock and haemorrhage caused by injury No. 1 and 2.
Injury No. 1 was fatal and sufficient to cause death in ordinary course of nature. Other injuries were simple. All the injuries were anti-mortem and caused by a road accident.
On the same day. he, also examined, the dead bodies of Mst. Sharifan. Mst. Rizwana, Faruq Haider.
Atta Muhammad. Riaz Hussain. Rasheed, Sajida. Dead body of an unknown female and dead body of Mst. Rashida. It is pertinent to mention here that according to the opinion of the Doctor, injuries were caused all of them by a road accident. He also examined Majeed Akhtar. Mst. Sharifan Bibi.
Mst. Jannat. Dilawar Hussain. Shah Nawaz and Shaheen Ameer, who were injured and injuries were caused to them by a road accident according to the opinion of the doctor.
Zawar Hussain PW-7 Investigating Officer had taken into possession Bus No. 8100-LEZ and Bus No. 3650-LH vide memo. Ex.PB on 25.8.81.
5. The prosecution produced 8 witnesses including PW-7 Zawar Hussain. I.O. PW1 Raja Imtiaz Ali, eye-witness and others. The appellant has taken the stand that he was not at fault and it was the absconder driver Muhammad Aslam who had struck Bus No. 3650-LH against his Bus No. 8100-LEZ and absconder- co-accused was responsible for the accident. It is pertinent to mention here that on receipt of challan. Both the accused were summoned but only convict had surrendered to the trial Court, whereas Muhammad Aslam co-accused had absconded. The proceedings u/Ss. 87.88 were initiated against Muhammad Aslam and finally the case of convict was separated from absconder-co-accused.
6. The learned counsel appearing on behalf of appellant argued as follows:-
(i) According to the prosecution. Bus No. 3650-LH which was at the time of occurrence, driven by Muhammad Aslam co-accused hit the bus No. 8100-LEZ which was driven at the time of occurrence by convict.
(ii) The accident took place on account of negligence of co-accused Muhammad Aslam and consequently 10 persons were died. This fact was established on the basis of the evidence of prosecution, as Bus No. 3650-LH hit in the centre of Bus No. 8100-LEZ.
(iii) At the time of accident, the convict did not drive the bus at high speed and the accident took place on account of very rash and negligent act driving of the absconder-co-accused, who did not cafe w hile crossing the Railway Crossing. He further argued that driving a car at high speed cannot be considered as a rash and negligent act. As modem technology provides for reasonable safe-guard stopping the vehicle within known distance and time and the prosecution had to establish that he failed to take proper care by omitting to take some action, though through which he could have avoided the accident. He further argued that the prosecution failed to link between rash and negligent act of the appellant. Mere fact of motor vehicle acting at a fast speed is not sufficient to establish the guilt of the accused. The prosecution did not prove that driver failed to take some action, which could have avoided accident. His bus was standing on the wrong side.
7. The learned State counsel supported the judgment of the trial Court on each and every point and argued as follows:-
(1) Prosecution proved on record that convict has driven his bus at the speed of 70'75 per hour near the Railway Crossing.
(2) PW-8 and PW-1 supported the ocular account.
(3) Eve-witnesses and I.O. Had no enmity with the convict appellant.
(4) Prosecution brought on record sufficient material that convict/appellant could avoid the accident, if he used his common sense and care.
8. I have given mv anxious consideration to the contentions of the learned counsel of the parties.
Dilawar Hussain PW-8 is an injured witness and at the time ot accident, he was traveling in Bus No. 3650-LH. Who stated in his statement that Aslam co-accused-absconder, driver of Bus No. 3650- LH was very rash and negligent and when the bus had crossed the Railway Crossing, Kassowal. Bus No. 8100-LEZ had arrived there, which to was driven rashly. It is also admitted fact that PW-1 and PW-8 had no enmity whatsoever with the convict/appellant. Therefore, their statements cannot be brushed aside. PW-7 Zawar Hussain stated in his statement that according to his investigation the responsibility for the accident lies with the co-accused/absconder, but on Court question, he replied as follows:- {{URUD TEXT MISS}} From the reply of Court question, it reveals that the convict was also driving the bus at a very high speed. He rash and negligent, was responsible for the accident. From the evidence of the prosecution, it is proved beyond any shadow of doubt that convict was driving his vehicle at the speed of 70/75 near the Railway Crossing, therefore, he is responsible for the accident, otherwise he could have avoided the accident in case he was driving his vehicle m controlled speed at near the Railway Crossing. I am fortified by the judgment of Karachi High Court reported as PLD 1971 Karachi 129 (Hussain and another v. Muhammad Rafique & others) and the relevant observation is as follows:- The said bus was in the wrong lane. Mr. Shibh submitted that driving in a wrong lane, of traffic by a vehicle did not amount to any offence, therefore, ev en if DAV. Muhammad Rafique had given false evidence, the mere fact that the said bus was tn the wrong lane of traffic did not mean that At was being driven negligently. I am not able to agree with the view that driving in the w rong lane of traffic is not necessarily a criminal offence. However. I am not dealing with criminal liability in this case: and. As the said was in the wrong lane of traffic, it means that it was on the section of the Bridge normally used by traffic going to Lasbella and not to Nazimabad. Its presence in that lane of traffic itself constituted a danger to traffic- going to Lasbella, as the rickshaw was: therefore, in the absence of any explanation, the fact that the bus was in the w rong lane of traffic is prima facie evidence that it was being driven negligently.
I am also fortified by Muhammad .Aziz Ullah Qureshis case PLD 1976 Karachi 560 and the relevant observation is as follows: It is a common practice with the bus drivers to overtake bus even at a bus-stop in order to pick up the passengers before the reaching of the bus at the next stop. This is done by the drivers recklessly in a callous manner, unmindful of the traffic coming from the opposite direction. Most of the accidents those occur on the roads are due to this unhealthy competition. The main line of defence taken by the learned defence counsel is that the driver of the scooter had no licence and he is. Therefore, liable for the accident. The learned defence Advocate recalled the driver of the scooter as a defence witness specially for this purpose to show that he could not produce a driving licence. The question for determination, however, is whether it can be said that accident was the result of the violation of the statutory duty to be in possession of a valid licence at the time of driving a vehicle. It has not been admitted by the driver of the scooter that he had no licence. But even presuming for the sake of argument that he did not possess one. He would be guilty of breach of statutory duty punishable under the Motor Vehicles Act. But is does not lead to the inference that the accident was wholly caused by the said breach of the statutory duty. Not being in possession of the valid licence was obviously not the cause of the accident. As held in the case of Haji Muhammad Siraj Mian v Abdul Hashim.
I am accordingly satisfied that this accident was the direct result of careless and negligent driving