P L D 1959 (W (PLP)

Hassanally A. Rehman for Applicant. G. M. Shah for Respondent. Dates of hearing : 3‑11‑1958 and, l0‑11‑1958. Muhammad Yakoob petitioner was sentenced to one year's 'R. I. under section 304‑A, P. P. C. by a Magistrate, First Class, on 16‑1‑1958. On appeal to the Sessions Judge the sentence was confirmed by his order dated 14‑5‑1958 and he has now come up to this Court in revision. The allegations against the accused, on which ‑the conviction was founded, were that he was driving an ambulance car the hand‑brake of which was unserviceable and the foot‑brake was in working condition but when applied it pulled the vehicle to the left. When he was on Manghopir Road near the Orangi Bridge there a woman Mst. Fatima Begum was standing on the right side of the road with three children. Two of them crossed the road and while the third, Mst. Fauzia, a girl of about four years of age, wanted to cross it and ran across it at that time the vehicle driven by the petitioner came abreast of the girl and the front mudguard of the petitioner's ambulance car struck the girl in the abdomen and the thigh and she fell down on the road. According to the doctor's evidence she received an abrasion 1" y x " on the inner and lower part of the left thigh. She was removed to hospital where she died a little later. On internal examination her liver was found lacerated and, in the opinion of the doctor, death was due to rupture of the liver. In the doctor's opinion the girl was run over by the Vehicle but as she had only an abrasion on the thigh and neither the bones nor was the liver in any way smashed, which would have been the case as if she had been run over by a heavy vehicle, the conclusion is that her liver wad ruptured by her impact with the mudguard of the car and she was not run over by it. The Petitioner admitted that the girl died as a result of her collision with the front mudguard of his car but he said that he was careful in driving and at the time of the incident his speed was slow and it was the girl's fault because she ran and tried to ' cross the road at the very time when he was about to pass by her. Conviction under section 304‑A requires that some rash or negligent act on the part of the accused must be conclusively established by direct evidence. If the hand brake is defective that has no effect on speed: There was defect in the foot‑brake, but that defect only pulled. the car to the left when the brake was to be put to work. That defect in the brake of the car alone would not by itself constitute the driving of the car a rash,,; or negligent act. It must be established by evidence that at the time of the accident the driver was driving the car set an un controllable speed and was guilty of a rash or negligent act. The only evidence on that point is that of Mst. Fatima Begum, the mother of the girl, who said that the driver was driving the car at a high speed and did not stop in spite of her cries. There is no indication of the speed. On the other hand the Motor Vehicles Expert said that from the marks on the road it appeared that the car stopped at a distance of six paces from the scene of offence. If that is so, then the car must have been running at a very slow speed at that time. Mst. Fatima Begum's evidence is not reliable because she is the mother of the girl and would naturally put the blame on the driver. Two of her children had already crossed the road and a small girl of four years was attempting to run after them and under those circumstances the girl herself could very well be at fault. The fact that she struck against the front mudguard further indicates that she attempted to cross the road at a time when she could not do so otherwise she would have been run over by, the car and would not have been struck by the mudguard. As in this case it that not been established that at the time of the accident the accused was driving the car at high speed and no element of rashness or negligence in the driver's conduct has been established, a case under section 304‑A has not been made out against him The case appears to be well within the rule laid down in Muhammad Siddiq v. State (PL D 1958 Kar.445). This revision application is accepted, the conviction is quashed and the accused, if he is in jail, should be set at liberty. K. B. A. Application accepted.