Karachi’s Karsaz Road recently witnessed the untimely demise of two innocent individuals, crushed under the proverbial and literal wheels of unbridled entitlement.
An SUV-wielding driver, in a demonstration of utmost negligence, irresponsibility and abuse of privilege, changed several lives for the worse. The videos of the incident circulating on social media have been accompanied by an onslaught of concern and apprehension from the citizens of Pakistan regarding the legal implications and process of law that will ensue. Speculations of a possible acquittal being brokered by the seemingly affluent defendant through unlawful favours and monetary gratification are also in circulation.
This article aims to elucidate and analyze the legal framework governing acts of negligent and reckless driving under the relevant laws, supported by a historical examination of judicial approaches in analogous cases.
The Pakistan Penal Code (PPC) 1860 and the Fatal Accidents Act 1855 govern incidents of rash and negligent driving by laying down tests for establishing the criminality of the act by the perpetrator and the compensation for the aggrieved, respectively. Taking a person’s life through an act of rash or negligent driving is termed qatl-e-khata under Pakistan’s criminal laws. The scope of qatl-e-khata is limited to causing the death of a person either by a ‘mistake of act’ or ‘mistake of fact’ which could be characterized as murder by mistake without there being any intention to commit murder at all. However, in most cases, the potential absence of intention or mens rea does not exonerate the accused of all liability. An instructive case on this matter is Muhammad Yousaf vs. The State which offers a clear principle on extemporaneous murders:
“Where an accused had no mens rea and he did not know that his negligent driving was likely to cause death, but death was caused, he was still liable under Section 320, PPC.” (1988 PCrLJ 1800)
Judicial interpretations of Section 320 PPC create a distinction between ‘rashness’ and ‘negligence’. A rash act is considered primarily an overhasty act, while negligence is the breach of duty caused by an omission to do something which a reasonable person, guided by considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable person would not do. Simply put, if a person was aware of the risk and decided to take it, he or she was reckless. And if he or she was unaware of the risk but ought to have been aware of it, he or she was negligent.
On-road tragedies typically elicit reactions focused on the speed of the vehicle involved. However, the judicial approach to the velocity of the vehicle varies. On one hand, the speed of the vehicle is seldom the defining factor in deciding the outcome of a case. On the other hand, the courts, in some instances, have used speed as well as the the failure of the accused to apply brakes in time as a test to establish culpable negligence. Nonetheless, established precedents have consistently upheld a strong presumption of negligence, both in fact and in law, against a driver who strikes a pedestrian or another vehicle in broad daylight.
When it comes to proving the aforementioned facts and fundamentals in court, the field shifts entirely. Realistically, there are only two possibilities:
- either the defense demonstrates that the victim himself or herself was rash or negligent while the driver was not at fault; or
- the prosecution proves that the driver was rash or negligent to the highest degree.
To secure a conviction under Section 320, the prosecution must conclusively prove, inter alia (among other things), that the accused was, in fact, driving the vehicle and that the death of the victim(s) was caused due to the negligent driving of the accused. In the Karsaz incident, the ocular account from the CCTV footage evidences a reckless SUV being driven by a person showing little to no regard for the lives or safety of others. Therefore, when the versions of both the defense and the prosecution are juxtaposed, the court may find the prosecution’s case against the accused to be sufficiently established.
Another critical aspect which may be considered is the well-established doctrine of res ipsa loquitur – Latin for “a thing speaks for itself.” The jurisprudence on this maxim is best understood through the lens of Pakistan Steel Mill Corporation vs. Malik Abdul Hameed & another, wherein a full bench of the honourable Supreme Court held the following:
“This doctrine applies firstly, when the thing that inflicted damages was under the sole management and control of the defendant, and secondly, that occurrence is such that it would not have happened without negligence… In such circumstances, defendants have to persuade the Court that accident did not occur on account of their negligence.” (1973 SCMR 848)
Some may contend that the principle of res ipsa loquitur conflicts with the principle of criminal jurisprudence which places the burden of proving an offence on the prosecution. However, the interpretation of res ipsa loquitur suggests that the circumstances themselves are clearly indicative of the negligence of the individual responsible for creating the situation in question. Therefore, a person driving a motor vehicle is, prima facie, responsible for controlling it and considered negligent if things go awry.
Having established the basics of interpretation of the law, let us now address potential punishments and reliefs for the aggrieved under the relevant laws. The offence of qatl-e-khata by rash and negligent driving, solely, is a bailable offence. However, a conviction thereunder could entail the payment of diyat (blood money), as well as imprisonment of either description (simple or rigorous) for a term which may extend up to ten (10) years. In addition to the PPC 1860, the Fatal Accidents Act 1855 also comes into play when deciding relief for the aggrieved. The 1855 Act itself provides for ‘compensation to families for loss occasioned by the death of a person caused by an actionable wrong.’ Although the jurisprudence of compensation for road accidents is a developing phenomenon, the quantum of compensation is mostly calculated by ascertaining the pecuniary contribution of the deceased in sustaining their families and their probable lifespan for which they would have continued to earn for their families. In some instances, the courts have been of the view that the surviving family of the deceased will be entitled to compensation from the accused throughout their lives.
The law is clear, and in a perfect world, so would its applicability. But when the average Pakistani citizen peeks over his or her shoulder, he or she sees a black hole of oppression and tyranny, fueled by privilege and patronage which continues to ensnare justice and equity. In today’s world, a social-media trial precedes the courts. Video evidence is played on screens for everyone to see. The difficulty, therefore, is to keep out of the judicial mind the pressure that inevitably creeps in from the people on one side and the powers prevailing on the other. This weight is bound, more or less, to reflect on the question of culpability of the accused and may cloud judicial vision. The task of keeping out such pressure and influence is no doubt a difficult one, but it has to be performed by our courts.
Even if the evidence against the accused is overwhelmingly strong, leaving only a remote possibility in their favour, the verdict could still be swayed by the argument, ‘of course, it’s possible, but not probable.’ In such a case, the law would fail to protect the community by allowing a mere speculative possibility to obstruct the course of justice. The court must, therefore, without any prejudice, award a punishment proportionate to the gravity of the offence.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
