Law: Penal Code (XLV of 1860)

Section: 304,338

  Penal Code (XLV of 1860)------   ------Ss. 304-A & 338-Rash and negligent driving-Assessing rashness or negligence in case of horse driven carriages-Due consideration to be given to fact that unlike motor vehicles such carriages cannot be stopped dead as mere application of brakes-Bay suddenly darting across road struck and knocked down by tonga driven at moderate speed Rash and negligent driving, in circumstances of case, cannot be attributed to tonga driver-Conviction under S. 304-A set aside.   Muhammad Yaqub v. The State P L D 1959 Kit. 30; Muhammad Siddiq v. The State P L D 1958 Kar. 945; Kanshi Ram v. Emperor AIR 1927 Lah. 165 ; Emperor v. Abdul Latif A I R 1944 Lah. 163 ; Pulin Behary Nandi v. Emperor 30 Cr. L J 402 and Emperor v. Akbar Ali A I R 1936 Oudh 400 ref.   Date of hearing: 10th March 1965.   JUDGMENT   Muhammad Hussain, son of Muhammad Boota was convicted by khan Saadat Khan, Section 30, Magistrate, Gujranwala on the 8th of May 1962, under section 304, Part A, P. P. C. and sentenced to undergo rigorous imprisonment for one year, in addition to pay a fine of Rs. 1,000; in. default of payment to undergo further rigorous imprisonment for six months. It was also ordered that out of the fine, if realized, Rs. 800 were to be, paid to the father of the deceased as compensation for expenses incurred and mental agony suffered. In appeal, learned Sessions Judge, Gujraon aloof confirmed the conviction but reduced the sentence to Keith rigorous imprisonment for six months and a fine of Rs. 800 further modification that if the fine was realized Rs: 600 was to be paid to the father of the deceased.   In revision the learned counsel for the petitioner has urged that rash and negligentact as referred to in section 304, Part A, P. P. C. has on the evidence in this case not been proved and consequently the conviction of the petitioner is not warranted in law.   Briefly the facts are that on the 30th of January 1962, the petitioner MuhammadHussain was driving a tonga carrying passengers and on the G. T. Road at Gujranwala struck against Sartaj alias Neeno, a boy about 3 years of age knocked him down and the boy died…