TAJ MUHAMMAD Versus STATE

1. The applicant was convicted by the Assistant Commissioner, Karachi for an offence under section 304-A, P. P. C. and sentenced to R. I. for 18 months and a fine of Rs. 3,000 or in default to undergo further imprisonment of 4 months. He was also ordered to pay compensation of Rs. 4,000 to the heirs of the deceased or in default further imprisonment of 6 month. The appellant preferred an appeal in the Sessions Court Karachi and the appeal was dismissed with certain clarifications, culmi nating in this revision application.

2. The prosecution story in brief is that on the 21st September, 1975 at about 6-30 p.m. Bus No. 965 was going on Hawkes Bay Road to Maripur side. Near about Moosa Hotel there was a Scooter coming from the opposite direction and there was a collision. The Scooter has damaged and both the occupants, namely Zikar and Mahmood were instantly killed. Muhammad Sadiq and Moosa had heard the Commo tion, following the impact. One Sub-Inspector of Traffic Police, Sohrab Butt who was patrolling the road was also coming, some distance behind the scooter and reached the vardat within minutes. He took the appellant with himself to Maripur Police Station. Barkat Ali the S. H. O., who was at his house was apprised of the incident on telephone, who after lodging the report reached the vardat and prepared the inspec tion memo and the sketch. Thereafter he prepared the inquest report and got the Bus examined by the Motor vehicle Inspector. After due investigation the case came to be challaned in Court,

3. The appellant in his statement at the trial pleaded his innocence and stated that the accident took place because of the rashness of the scooter driver, who also did not have a driving licence.

4. Admittedly there were a number of passengers on the bus, but not a single person has been examined from amongst those. P. W. Muhammad Sadiq, who lived nearby, was passing by the hotel, and Moosa is the proprietor thereof. Both of them have clearly stated that they learnt of the accident, after impact. They have however, said that the bus was being driven at high speed. There is nothing more than this in their testimony. The third witness is Sohrab Butt. He also had stated that the bus was being driven rashly and with speed. That is however, not to be found in his statement under section 161, Cr. P. C. as duly brought out on the record. A vehicle driven with some speed: on a clear road by itself will, neither be a rash or negligent act. The only other vehicle) on the road was from the direction, that is the scooter in question. There was no pedestrians, it appears that there was a slight curve to negotiate from the side that the scooter was coming. There are two other salient features of the case, which must be taken notice of. The first is, as deposed by P. W. Zahid Azim, the Motor Vehicle Inspector, that the breaks and the steering wheel of the bus, were absolutely in order, and the bus was roadworthy, except for the resulting damage of the impact. Secondly that the accident had taken place, as deposed to by the two witnesses and duly supported by the sketch plan, at the center of the road. The road is stated to be 10 steps wide and the bus was 5 ft. wide and the bus was admittedly on its correct side. The scooter driver had therefore, half the road available to him and had no business to be where he was. The appellant would not expect the scooter to run across to its side. In the absence of any evidence from the occupants of the bus, it cannot be said that the appellant was behaving like a roadhog, or he was driving rashly or negligently.

5. Mr. Ibadat Yar Khan learned counsel for the applicant contended, that it was the scooter driver who ran against the bus. He was a novice, as no driving licence was forthcoming. That will not be decisive, assuming that it was so. The doctrine of contributory negligence has no place in a criminal trial. That would pertain to the domain of torts. The, question for consideration here, would be whether the accident and the consequential deaths occurred, as result of any gross negligence and lack of care and circumspection which a prudent and reasonable man is expected to show, considering all the circumstances of the case. In my mind it cannot be said that there was any culpability on the part of appellant or that it was the proximate or efficient cause of the tragedy. It is true that two valuable lives were lost, but can it be said that it was because of any act, or omission on the part of the applicant or of because of circumstances beyond his control? Mr. Ibadat Yar Khan has cited a number of authorities from our Courts and also from foreign jurisdic tion, but it is not necessary to refer to the same, in view of the evidence on the record. I am clearly of the opinion that the case against the appellant for rashness and negligence has not been satisfactorily estab lished.

6. In the result the conviction and sentence are set aside and the revision application is allowed.

7. The applicant is on bail and his bail bonds stand cancelled.

8. Appeal allowed.