BARKAT MEMON Versus THE STATE

1. Appellate Barkat son of Ghulam Hussain alognwith one another was tried by the learned IInd Additional Sessions Judge, Larkana who by his judgment, dated 2-3-1986 convicted the appellant under section 304-A, P.P.C. and sentenced him to suffer R.I. for five years and fine of Rs.5,000 or in default of payment of fine to undergo R.I. for one year more. The appellant has challenged the said conviction and sentence under this appeal,

2. The case of the prosecution is that complainant Mohabat Ali lodged report at Police Station Bakrani on 10-4-1981 at 11-30 p.m. in which he stated that on the said date, he had hired a bus for attending Sukh (Ceremony) at Pir Saidi Moosani in Taluka Mehar. At 9-00 a.m. in the morning the bus arrived in which the complainant alongwith his relatives and family members left their village for Mehar. After attending the ceremony, they were all returning back to their village in the same bus. The said bus was being driven by the appellant Barkat Ali and co-accused Subhan was cleaner. It is said that the appellant was driving the bus in a rash and negligent manner for which the complainant had also asked him to slow down the speed of the bus but the appellant did not pay any attention. On the way the appellant left the metal road and drove the bus on the inspection path of Dadu Canal. The complainant and others asked him to drive the bus on the metal road, but the appellant did not pay any attention and continued driving the bus on the inspection path. At about 6-40 p.m. the rear wheels of the bus hit the bank of the canal on account of which the bus slipped and fell in the Dadu Canal. Several persons sitting on top of the bus also fell down while the appellant and co-accused Subhan jumped out of the bus. Some of the persons managed to swim out of the canal and they raised cries which attracted S.H.O. Qadir Bux Rind of P.S. Bakrani and so also the people from the nearby village. The said S.H.O. alongwith his staff reached the spot and they managed to take out 29 dead bodies from the water. The S.H.O. had also sent message to his officers in respect of this incident. After a short while S.P., D.C. and other officials reached the spot. Even the Medical Officer was called at the spot. The complainant identified those 29 dead bodies. The S.H.O. prepared mashirnama of dead bodies in presence of mashirs Mir Muhammad and Shamsuddin. He also prepared Inquest Report of the dead bodies. He then took the complainant to the Police Station where he lodged his report, read it over and obtained his signature. The said F.I.R. is Exh.19 on the record.

3. Next morning the Investigating Officer inspected the place of wardat and prepared a mashirnama Exh.20. He also examined several witnesses. Under memo. Exh.21 he arrested both the accused and on the same day further 26 dead bodies were recovered in respect of which memo Exh.22 was prepared. Their inquest report was also prepared. Finally on 13-7-1981 he challaned both the accused in the Court of Extra Joint Civil Judge and F.C.M., Larkana. He had recovered the bus from the canal and same was kept at Police Station Bakrani.

4. At the trial the prosecution examined P.W. Ali Sher, P.W. Muhammad Safdar, P.W. Dur Muhammad, P.W. Dr. Ali Nawaz, P.W. Mir Muhammad, P.W. S.H.O. Qadir Bux, P.W. Khizmat Ali and P.W, Abdur Rashid. Vide Exh.28 prosecution closed its side. The statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegation and claimed to be innocent. He also denied on his subsequent examination that he was driving the bus in a rash and negligent manner. However, the appellant and the co-accus6d did not examine any witness in their defence. The trial Court convicted the appellant under section 304-A, P.P.C. while co-accused was acquitted.

5. I have heard Mr. Samiullah Qureshi learned counsel for the appellant and Mr. Zawar Hussain Jaffri, A.A.G. for the State. Learned counsel for the appellant has raised certain legal points also which I shall presently discuss.

6. It may be mentioned that the F.I.R. was registered for an offence under section 304, P.P.C. The challan was also submited for the offence under section 304, P.P.C. As such the case came up for trial before the Sessions Court as the offence under section 304, P.P.C. is exclusively triable by the Sessions Court. This case was marked to the Court of the learned First Assistant Sessions Judge, Larkana who framed the charge against the accused as Exh.2. The charge against the accused was that they had "committed culpable homicide not amounting to murder by drowning the passengers in Dadu Canal and thereby commited the offence punishable under section 304/34, P.P.C." Subsequently the case was transferred to the Court of the learned Second Additional Sessions Judge Larkana before whom the case concluded and the appellant was convicted under section 304-A, P.P.C.

7. Keeping in view the above background, the first point raised by Mr. Samiullah Qureshi is that the appellant was charged under section 304, P.P.C. but his conviction has been recorded under section 304-A, P.P.C. for which he had no notice. His next submission was that even for the offence under section 304-A, P.P.C. the appellant could not be convicted as the main ingredient of the said offence being "rash and negligent act" has not been proved in this case. He further submitted that it was a case of error in judgment while driving, on account of which the tire of the bus hit the bank of the canal and thereafter the bus slipped into the canal. He further states that his case is also covered by section 80, P.P.C.

8. On the other hand Mr. Zawar Hussain Jafri learned AA.-G. supports the judgment of the trial Court. He submits that it was on account of the negligence of the appellant that 71 persons have lost their lives. He is of the view that no interference is called for in this case.

9. I have given my anxious consideration, to the facts and circumstances of the case and so also the evidence available on record. In this unfortunate case 71 persons have lost their lives on account of drowning as they were trapped in the bus which fell in the canal. The conviction of the appellant is based on ocular evidence of P.Ws. Ali Sher, Muhammad Saffar, Dur Muhammad and Khizmat Ali. They were all passengers of the ill-fated bus and one or the other member of their family have lost their lives in this incident. The complainant of this case could not be examined as he is said to have expired after this incident. Therefore, the F.I.R. has been produced and proved through the Investigating Officer Qadir Bux Rind who was S.H.O. of P.S. Bakrani and had recorded the said F.I.R.

10. P.W. Ali Sher has stated that on the day of incident they had gone to Pir Saidi Moosani to attend the Sukh ceremony of the complainant's children. About 120 persons had boarded a bus arranged by the complainant. After the ceremony, they were returning back by the same bus which was being driven by the appellant. The appellant was driving the said bus on a metal road but when they reached Dadu Canal, in spite of their objection, the appellant left the metal road and took the bus on the Katcha road called Inspection Path of Dadu Canal. When the bus reached the bridge of Jatoi canal, its rear wheel ran over the bank of the bridge and then the bus slipped and fell in the Dadu Canal with the result that 71 persons were drowned to death. This witness had saved himself by jumping out of the window of the bus.

11. He further states that the driver and the cleaner of the bus escaped from the place of incident.

12. P.W. Muhammad Saffar and Dur Muhammad have also narrated the same facts but there is slight difference. They both state that while they were returning in the said bus which was being driven by the appellant, when they reached the point where the saw machine of Wali Muhammad is situated, the driver left the metal road and turned the bus taking the Inspection Path of Dadu Canal and then all of a sudden the driver and the cleaner jumped out of the bus with the result the bus continued plying for 10 to 15 feet without a driver and then fell in the Dadu Canal, resulting in the death of 71 persons. P.W. Muhammad Saffar lost his wife, daughter and two sons in this incident.

13. P.W. Khizmat Ali has also narrated the same facts as the other witnesses, he also states that before the bus fall in the Dadu Canal, the driver and the cleaner managed to escape. In this incident he lost his mother, brother and brother's wife.

14. The trend of cross-examination of the aforesaid witnesses was that the appellant was not driving the said bus in speed. That the driver and the cleaner had told the passengers not to overload. That it was the passengers who had asked the driver to take the Inspection Path. That the witnesses are deposing falsely and in addition a suggestion has been made to P.W. Muhammad Saffar and P.W. Dur Muhammad that they had not seen the incident. All the said suggestions have been denied by the witnesses. In any case these suggestions are of no help to the appellant as during the course of argument before the lower Court, it was the case of the appellant that the offence falls under section 304-A, P.P.C. and not 304, P.P.C. This stand was presumably taken as the offence under section 304-A, P.P.C. entails lesser punishment than the offence under section 304, P.P.C. Obviously the appellant cannot be allowed to retrace from the stand taken by him before the lower Court.

15. In spite of the stand taken by the appellant, from the evidence on record and the peculiar circumstances of the case, I am satisfied that the appellant was driving in a rash and negligent manner, for the reasons which I shall presently discuss.

16. The first ground taken by the learned counsel that he had no notice for the offence of 304-A, P.P.C. is of no consequence as section 238, Cr.P.C. will come into play which provides that if a person is charged with an offence, he may be convicted of the minor offence, although he is not charged with it. Inthe present case the appellant was charged with 304/34, P.P.C., but from the proved facts, minor offence under section 304-A, P.P.C. was spelt out, therefore, he was convicted under section 304-Al., P.P.C. though he was not charged with it. As such there is no question of not having notice of the said offence. So far as the plea of "error in judgment while driving" and the further' ground of the case being covered by section 80, P.P.C. are concerned, suffice to say that neither such plea was taking during the trial nor any such suggestion was made to any of the witnesses, nor did the appellant take this plea in his statement recorded under section 342, Cr.P.C. Even now at the appellate stage, the learned counsel has not been able to demonstrate how it was a case of error in judgment while driving and that the case was covered by section 80, P.P.C.

17. So far as the question of rash and negligent act is concerned, some peculiar features of the case are to be kept in view in order to appreciate the same. These are:

(1) ??????? That the ill-fated bus was being driven by the appellant which is not disputed;

(2) ??????? that the appellant while driving the said bus left the metal road and turned the bus on the Katcha Road called the Inspection Path of Dadu Canal;

(3) ??????? that the Inspection Path of Dadu Canal was not the route of the said bus nor the appellant obtained any such route permit;

(4) ??????? that evidence has come on record to show that due to recklessness the appellant was not able to control the bus, with the result he saved his own skin by jumping out of the bus leaving the passengers to meet their own fate and

(5) ??????? that if the appellant had not taken the Inspection Path of Dadu Canal, this incident would not have taken place.

18. Keeping in view the aforesaid circumstance, I may refer to the evidence of P.W. Abdul Rashid, who at the relevant time was posted as Secretary R.TA. Sukkur. He has deposed to the fact that he had verified his record which revealed that the bus driven by the appellant had route permit from Larkana to Badah via Bakrani. This means the appellant had no route permit for taking his bus on the Inspection Path of Dadu Canal. By not having the route permit will certainly not have any bearing on this case, but what is important to note is that width of the said Inspection Path of Dadu Canal is only 9 feet and if we keep is mind the width of the bus which must be 6-1/2 to 7 feet, this will leave a very narrow margin of space on either side of the bus to manoeuvre. By leaving the safety of a metal road and turning to this Katcha path of 9 feet could have been avoided by the appellant. The witnesses have testified that they had objected to the appellant for plying the bus on this Katcha path, but the appellant's case is that, the passengers wanted him to take the said path. Even if that was so, since the appellant was the driver of the bus, the safety of the passengers should have been foremost in his mind and therefore he could have avoided the said Katcha path. In the Mashirnama of Wardat it is mentioned that the width of the said path was 9 feet and the bus wheel marks were visible on the bank of the canal. Certainly this could not have happened due to any error in judgment.while driving. The witnesses have deposed that the cleaner, that is acquitted accused, was sitting on the wrong side of the appellant when he was driving the bus. It was negligence on the part of the appellant to allow the co-accused to sit on his wrong side thus becoming a cause for distraction. It was negligence on the part of the appellant to leave the metal road and take the bus on the Inspection Path of Dadu Canal, knowing full well that slightest distraction in driving on the said Katcha path could prove to be fatal for the passengers sitting in the bus. In the circumstances of this case, driving at a fast pace on the Katcha road of Inspection Path of Dadu Canal will certainly amount to rash and negligent driving. Indeed, the appellant appears to have been driving at a fast pace that is why the bus went out of his control. It also appears that as soon as the bus went out of the appellant's control, he knew the consequences that is why he jumped out of the moving bus in order to save his own life. Two witnesses namely P.W. Muhammad Saffar and P.W. Din Muhammad stated in their evidence that after the driver jumped out of the bus, the said bus continued moving for about 10 to 12 feet and then fell in the Dadu Canal resulting in the death of 71 passengers. In these circumstances it will not be wrong to say that E the death of the 71 passengers was on account of the rash and negligent driving of the appellant.

19. In the light of my above discussion, I am of the view that the appellant has been rightly convicted in this case. Accordingly I do not find any merits in this appeal and the same is hereby dismissed. The bail bond of the appellant is cancelled. The trial Court shall cause the arrest of the appellant and remand him to custody to serve out his sentence.

20. The appeal is dismissed.

21. N:H.Q./B-246/K ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.