MUHAMMAD BANARAS Versus THE STATE
1. Feeling aggrieved by the judgment in affirmance of learned Additional Sessions Judge, Rawalpindi of 17-3-1991 upholding petitioner's conviction and sentence under section 279/304-A, P.P.C. to one year R.I. on each count recorded by the learned trial Magistrate on 11-3-1990 emanating out of the following facts viz. on the statement Exh.PB of Muhammad Iqbal Head Constable P.W.2 on 12-4-1989 recorded by Fida Hussain S.I. P.W.4 on the basis whereof formal F.I.R. Exh.PC was registered at police station Westridge by Majid Akhtar A.S.I. the same day initially under section 279/338, P.P.C. which charge, consequent upon demise of the injured was amended to section 304-A, P.P.C. to the effect that around 930 a.m. while the complainant alongwith Muhammad Iqbal FC PW.1 were on patrol duty near Niazi Petrol Pump within the area of Rawalpindi Cantt., Mst. Hussar Bano deceased while crossing the road was run down by a wagon bearing registration No.MA/4087 coming down from Koh-i-Noor Mills, Peshawar Road driven by the petitioner in a negligent, reckless manner and with excessively high speed; many persons were attracted to the scene and removed the injured to the hospital where she succumbed to the injuries; the petitioner abandoning the wagon vanished away, Fida Hussain S.I. P.W.4 got prepared site plan Exh.PD from the Traffic Sergeant; secured into possession the wagon vide memo Exh.PA, petitioner's driving licence effecting his arrest on 18-4-1989; prepared inquest report of the deceased Exh.PM; Dr. Nasim Ahmad P.W.5 vide post-mortem report Exh.PE observed:
2. "There is lacerated wound 8 cm wide behind left ear and clinical fracture of skull. There is fracture of left upper arm in lower half. There are multiple rib fractiues on left side of chest portion laterally.
3. Body of an elderly woman brought to COD wearing yellowish Shalwar and shirt. No rigor mortis. No PM staining.
4. Exact cause of death cannot be given. However, possible cause of death is injury No.l which caused injury to head which was sufficient to cause death. However, Injuries Nos.2 and 3 with injury No.l collectively can cause death in ordinary course of nature.
5. All injuries are ante-mortem and caused by blunt accidental (Road side accident).
6. Time since death--One hour.
7. Time of post-mortem--12.20 p.m.
8. Blunt Accidental."
9. The complainant reiterating the prosecution story in cross-examination affirmed that petrol pump was 50 yards away from the place of occurrence on the same side where they were on patrol duty and witnessed the occurrence; the wagon was roaring at an excessively high speed of 80/90 miles per hour, petitioner applied brakes from a distance of 17 paces but could not control the vehicle on account of high speed and hit the deceased; Traffic Sergeant noted the points in his presence; bus stop was about 150 yards away and vehemently repelled the suggestion of one Manzur Elahi, nephew of the deceased having stated that petitioner's vehicle did not hit the deceased; to the same effect was the testimony of Muhammad lqbal F.C. PW.1; Fida Hussain S.I. P.W.4 deposed to the investigation; petitioner under section 342, Cr.P.C. stated that he has been involved falsely since he stopped by out of concern; though initially opted to depose under section 340. Cr.P.C. but subsequently did not enter the witness-box and tendering affidavit of Manzur Elahi tending to exonerate the petitioner of the charge produced Zamurrad Sultan, an inhabitant of the area working in a doctor's clinic in defence as D.W. 1, to the effect that the deceased was -hit by another wagon whereas petitioner only stopped by out of concern and transported the deceased to the hospital; legality whereof has been assailed urging that no private witness from the locality was produced despite being a populous area; Muhammad Iqbal V.W. 1 cannot be relied upon since he was not examined by the Investigating Officer; the Investigating Officer did not bother to enquire into whereabouts of the deceased; Manzur Elahi, a nephew of the deceased has exonerated the petitioner alongwith Zamurrad Sultan D.W. 1; the Traffic Sergeant was not produced, and, lastly, in view of conviction and sentence under section 304-A conviction under section 279, P.P.C. is not called for; with which I am not persuaded because the statement of Muhammad lqbal Head Constable P.W. 2 even to the exclusion of all others is so convincingly straightforward, consistent and confidence inspiring remaining utterly undented despite subjection to lengthy cross-examination that in the admitted absence of any motive to falsely implicate the petitioner is good enough to prove prosecution case beyond any manner of doubt on both the counts. The defence version seems to be a convenient afterthought since neither the petitioner in his statement under section 342, Cr.P.C. referred to Manzur Elahi's exoneration nor rendered himself to the rigours of cross-examination while presence of Zamurrad Sultan D.W.1 at the relevant time seems to be unnatural in view of his working hours viz. from 9-00 a.m. to 12-30 p.m. and 4-30 p.m. to 8-30 p.m. Further, his own stance of stopping by out of concern is contradictory to the record because his wagon was taken into custody from the spot on the same day by the Investigating Officer on his vanishing away.
10. Adverting to the last contention it may be observed that section 279, P.P.C. is a distinct separate offence viz., rash/negligent driving independent of any physical consequence flowing there from which in the instant case has been convincingly proved by the unimpeached testimony of complainant Muhammad Iqbal Head Constable stating that the petitioner was driving the vehicle at about 80/90 miles per hour at early hours of the day through populous busy cantonment area while section 304-A, P.P.C. is a separate offence contingent upon happening of a physical consequence emanating out of rash, neglig6nt and reckless driving resulting into death and the two in the instant case have been proved beyond any manner of doubt; consequently the petition being devoid of any substance is hereby dismissed; rather the sentence awarded to the petitioner on the latter count seems to be highly incommensurate with the guilt which has resulted into miscarriage of justice; consequently, in exercise of suo motu revisional powers notice whereof was given to the petitioner that in the event of petition failing to meet with success his sentence might be enhanced which the learned counsel accepted; consequently, in the circumstances of the case petitioner's sentence under section 304-A, P.P.C. is enhanced to three years' R.I. and is ordered to run consecutively with the one awarded under section 279, P.P.C.
11. Before parting it may be observed that petitioner being on bail was present throughout the proceedings and on pronouncement of judgment managed to slip away, thus for all intents and purposes is a fugitive from law, should be taken into custody for making him to serve the outstanding term of imprisonment.
12. M.BA./M-173/1, Sentence enhanced.