1. This is an appeal against the judgment of the Additional Sessions Judge, Karachi, convicting the appellant for an offence under section 337, P. P. C. And sentencing him to undergo R. I. For 6 months and further convicted him for an offence under sec--tion 304-A, P. P. C. And sentenced him to undergo R. I. For 2 years and pay a fine of Rs. 1,000 or in default to undergo R. I. For 1 year, ordering the sentences to run concurrently. Rs. 500 out of the fine, if realised, were directed to be paid to the heirs of the deceased persons. An application was also made for enhancement of sentence and notice was issued.
2. On 9-7-65 at about 6 a.m. Mengha, Abdul, Rehmat, Salahuddin, Lajar, and Nazeer were going to the Airport along the katcha portion of the road on the right side. When they reached near K. L. M. Gate the car driven by the appellant came from behind with a fast speed and dashed against them with the result that Mengha died on the spot, Abdul died a little later in the hospital while Salahuddin and Rehmat were seriously injured. There was a foreigner in the car who was going to the Airport to catch the plane. The incident was witnessed by Saeed Ahmad who was a chowkidar at Midway House gate at a short distance from the scene of offence and Abdul Muhammad Traffic Police Constable who was going in the van along with D. S. P. To the Airport. The appellant stopped the car at a distance of about 100 or 150 paces and then returned to the scene of offence. The first report was lodged and the police after usual investigation challaned the appellant who proclaimed his innocence and pleaded that he was driving the car when all of a sudden all those persons tried to cross the road when they were very close to the car and consequently the accident took place. To establish this he examined three witnesses Safiruddin, Ghulam Sarwar and Miskeen who were serving as motor drivers in P. I. A.
3. The learned Additional Sessions Judge, on the assessment of the evidence came to the conclusion that the appellant was driving the car rashly and, therefore he was guilty of the offence. He be-- lieved the evidence of the witnesses except Abdul Muhammad who according to the learned Additional Sessions Judge reached the spot a little after the accident. He disbelieved the evidence of the defence witnesses.
4. It is an admitted position that the accident had taken place in which two persons were killed and two persons had sustained injuries. The presence of injuries on the various, persons is borne out by the medical evidence, Mengha had received multiple abrasions on the face and head, lacerated wound on the left leg with compound fracture of both the bones, lacerated wound on the right buttock and back of chest with underlying fracture of ribs and contusion with simple fracture of right leg bones. Abdul had received lacerated wound on the left leg with compound fracture of both bones, small abrasion on the right leg with simple fracture of both the bones, interrupted abrasions on the abdomen and thigh fracture of the pelbic bone, multiple abrasions on left side face and head and multiple abrasions on both elbow and neck. According to the medical officer the injuries on both these persons were caused by a car and the death was due to shock and haemorrhage as a result of the injuries.
5. So far the injuries on the remaining two persons are concerned no medical evidence could be brought on record as Dr. Ikhtiarud--din who had examined them was not available as he had left for Libya. However, there is ample evidence on record that they had sustained the injuries. This fact has also not been disputed.
6. There is also no doubt that the appellant was driving the car, which was involved in this accident.
7. Apart from the testimony of the witnesses this has been admitted by the appellant in his statement recorded in the committal proceedings as well as at the trial.
8. The only question, which requires consideration is whether the appellant acted rashly so as to be guilty of the offence. To establish this the prosecution examined Abdul Muhammad, Nazeer, Salahuddin, Rehmat and Saeed Ahmad. Out of them Salahuddin and Rehmat had sustained injuries and, therefore, their presence at the time of this incident cannot be doubted. Similarly Saeed Ahmad was a chowkidar at Midway House gate and, therefore, he is also a natural witness and his presence too cannot be doubted. He was the first person to rush to the spot. His presence was also spoken of by the other witnesses tendered by the prosecution as well as the appellant. It was rightly observed by the Additional Sessions Judge that he was absolutely a disinterested witness. The fourth witness is Abdul Muhammad who was a traffic police constable and going to the Airport on duty. With regard to his evidence the learned Additional Sessions Judge expressed his doubt about having witnessed the incident although it was conceded by him that he arrived soon after the incident. I have gone through his evidence and there is nothing inherently improbable in what he had deposed. So I find no justification in excluding his evidence from consideration. Even otherwise the evidence of the former three witnesses has gone unassailed and that is enough to establish the case against the appellant. They have all unanimously stated that they were along the kutcha side of the road when the car driven by the appellant came at a fast speed and dashed against them and this resulted in the accident. Thus there could be no escape from the conclusion that the appellant was driving the car rashly and did not take due care and caution, which is expected.
9. The learned counsel for the appellant made futile attempt to convince me that the accident did not take place on account of the fault of the appellant but the victims themselves were responsi-- ble for it as although the car was close to them they suddenly attempted to cross the road. This suggestion was made to the witnesses and it was emphatically refuted by them. They stated that they were going on the kutcha side of the road when the car dashed against them. This is supported by the presence of blood on that portion of the road as has been proved by the evidence on record. It is no doubt true that there was also blood on the metalled portion of the road but that would not necessarily mean that the accident had taken place on that side. In this connection it may be noted that four persons had sustained serious injuries and the possibility that some of them were thrown on that side of the road by the impact of the car cannot be excluded. It is also not impossible that the blood may have spread to that side also.
10. Even presuming that the accident had taken place on the metalled portion of the road that does not necessarily mean that the witnesses were trying to crass the road. No occasion had arisen for them to have done so. They were going to the Airport, which was not far off from the scene of offence. In fact this was the Airport Road, which takes off from the main Drigh Road. So the road was leading straight to the Airport and there was no question of crossing the road on any point.
11. There is no evidence to show that any horn was blown when the victims and their companions were seen going on the road. The pedestrians may go along the road much to the annoyance of the driver of the car but it is the duty of the driver to take sufficient precaution to avoid the accident and even stop the car if required. There was no skidding mark on the road and that indicates that the appellant made no attempt to apply the brake. He stopped, at a distance of about 100 or 150 paces. This is further supported by the fact that the car struck against a pole situated on the kutcha side of the road with the result that the bonet was dented, the front number plate was bent and the front monogram was broken.
12. According to the evidence the victim and the witnesses were going along the right side of the road and according to the ordinary traffic rules the appellant had to drive the "r on the left side and, therefore, by driving the car on the right side of the road he clearly violated the traffic rules apart from the fact that he was driving the car at a high speed.
13. Dealing with the evidence of the defence witnesses the learned Additional Sessions Judge found that they were false and set up witnesses and I see no reason to disagree with the conclusion reached by him. All the three are drivers and, therefore---they have come forward to help the appellant. They alleged that they were off duty at that time but apart from the fact that they could riot be at the spot at that time no evidence was tendered to show that they were not on duty although a register is maintained by the Department showing their duty and their duty cards are also punched.
14. Lastly, the learned counsel urged that the charge in this case was defective and, therefore, it vitiated the trial. According to him the charge 43 it was framed showed that the appellant was negligent and rash in driving although the charge for rashness and negligence could be framed in the alternative. To support his argument he relied upon the authority in the case of State v. Bansi Singh (AIR 1960 Madh. Para. 105). It was held that: " A charge is defective if it uses the words "rashness and negligence'. The accused can be charged alternatively for rashness or negligence. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances, which show that the actor has not exercised the caution incumbent upon him and that he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection. Criminal rashness and criminal negligence are two different things."
15. On the other hand the learned counsel for the State replied that there was no illegality in the charge and for this he sought in aid the authority in the case of Tika Ram v. Rex (AIR 1950 All. 300).
16. It was held as under: "Section 304-A does not apply to case where there is an inten--tion to cause death or knowledge that the act done will in all probability cause death. It only applies to cause in which without any such 'intention or knowledge death is caused by what is described as a `rash' or `negligent' act. A negligent act is an act done without doing something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or an act, which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometime been observed that in rashness the action is done precipitately with the consciousness that tire mischievous or illegal consequences may follow but with a hope that they will not. But it is not necessary that there should always be this consciousness in a rash act., It has been observed that in negligence there is no such consciousness of the consequences. This is also untrue."
17. I have considered both these authorities and with due respect I am unable to 'share the view taken in AIR 1960 Madh. Para. 105. According to "Chambers" dictionary "negligence" means "the act or quality of being negligent, want of proper care etc." While "rash" means "over-hasty-want of any caution etc." There may be certain state of consciousness in rashness but there is close relationship between the two. In "negligence" there is, failure to observe such care as the occasion demands to protect the interest of other persons and in "rashness" there is failure to consider the consequences of an act with the result that the act is devoid of proper care and caution.
18. Even otherwise under section 537, Cr. P. C. The irregularity in the charge is curable unless prejudice has been caused. In the present case it cannot be said nor it has been pointed out that the charge as framed resulted in any prejudice. Moreover, the appellant was represented by the counsel at the trial of the case and, therefore, he knew very well what evidence he had to meet. B No protest was lodged against the charge when it was framed. Even in the case of alternative charge he had to meet both the charges and his defence could not have been different from the one, which was taken at .The trial. Thus the mere defect in the charge, even if any, is not of such a nature as may vitiate the trial.
19. In the result the conviction and sentence passed against the appellant are maintained and the appeal is dismissed. Notice for enhancement of sentence is discharged.