P L D 1966 (W (PLP)

(b) Rs. 200 each to Sher Zaman, Mst. Mir Jan and Mst. Ilahi Nur, (c) Rs. 300 to Muhammad Zarif, and (d) Rs. 500 to Javed Akhtar, or in default of payment of compensation, six months' R. I. The driving licence of the petitioner was also suspended under section 17 of the Motor Vehicles Act for a period of two years. The appeal of the petitioner against his conviction and sentences was dismissed by, the Sessions Judge, Hazara, by his order, dated 26‑3‑1965. The petitioner has come up in revision to this Court.

2. The material facts, culminating in. this revision petition, briefly, are that on 19‑2‑1964, the petitioner was driving Bus No. H. A. 1312 from Damtor to Abbottabad and after crossing the bridge known as Darkhan, the bus ran into an unmanned bullock cart going in the same direction after which it swered to the left, covering a distance of 29 feet and then swered to the right, covering the same distance and then fell into a ditch about 85 feet deep with the result, that one of the passenger, Khalid Javed, a boy of 7/8 years, died and Mehraban, Ihsanul Haq, Muhammad Zarif, Kala Khan, Nazir Hussain, Fazil Rahman, Said Akbar, Javed Akhtar and Sher Zaman sustained injuries.

3. Mian Muhammad Yunas Shah, learned counsel for the petitioner, contended that in view of the evidence of Mr. Nasirullah Jan, M. V. I. (P. W. 12) and Muhammad Zarif (P. W. 5) that the vehicle, at the time of the accident, was hi second gear and was running at the speed of 10 or 15 miles P. H. the petitioner could not be held guilty of Rash and Negligent Act.

4. Mr. Sher Bahadur Khan, learned Additional Advocate- General, on the other hand, argued that the charge was brought home to the petitioner by the following circumstances :‑ (1) That the petitioner was licensed to drive light vehicle and the vehicle, which was involved in the accident, was admittedly a heavy vehicle. (2) That the factum of rashness and negligence was brought home to the petitioner by the fact that after striking the cart, he could not control the vehicle which swered to the extreme left, covered a distance of 29 feet and then to the right, covered the same distance, and eventually, it went off the road and fell in the ditch. It was also argued by the learned Additional Advocate‑General that there was direct evidence of Mst. Mir Jan (P. W. 3) that the petitioner was driving the vehicle at a high speed and in spite of her request to slow down the speed, he did not pay any heed.

5. It was conceded by the learned counsel for the petitioner that no question of law was involved in the case, and that the sole grievance of the petitioner was that the concurrent finding of fact of the two Courts below in regard to the guilt of the petitioner could not be sustained. This being the position, a question at once arises, namely, whether the High Court, in exercise of its revisional powers, would allow the concurrent finding of fact being canvassed. I, therefore, take upon myself in this case to make some attempt to state principles, which should guide me in such like situation.

6. Legally speaking, the High Court can entertain revision petition, challenging the concurrent finding of fact, but, as a matter of practice, it is done very sparingly and only in cases, where the petitioner makes out a case that the conviction ought not to have been recorded. There is distinction, however, fine it may be, between an appeal against a conviction and a revision. In the case of the former, the approach of the appellate Court is that it would interfere in conviction, unless the guilt of the accused is proved beyond reasonable doubt, but in revision, the conviction is to be sustained unless it is proved, that the finding has been arrived at contrary to the well‑established rules of evidence, or that there is no legal evidence to support the finding, or that the finding, arrived at, is perverse or such that no reasonable man could have arrived at on the evidence produced. If was never the intention of the Legislature to grant right of appeal in some cases and to withhold that right in others. To put it differently, in revision, the High Court would not substitute its own appraisement of the evidence for that of the Court or Courts below, so long as there is legal evidence to sustain the conviction, but sitting in appeal, the High Court would readily accept the view favourable to the accused, if the case is susceptible of two views. The other distinction between an appeal and a revision is that the appeal is of right, while the revisional powers are discretionary to be exercised only lo prevent miscarriage of justice.

7. Judged in the light of the principles, set out above, there is legal evidence to sustain the conviction of the petitioner. For the satisfaction of the petitioner, I would, however, hasten to add that even on merits, his conviction appears to be well‑founded for two-fold reason. Firstly, from the perusal of the site plan (Exh. P. L.), prepared by Sardar Muhammad Hanif Khan, Sub‑Inspector (P. W. 8), it is abundantly clear that the petitioner was both negligent and rash in striking the bullock‑cart, which was going in the same direction in that after striking the bullock cart, he was not able to control the vehicle, which swered, as already indicated, to the left, covering a distance of 29 feet and then to the right, covering the same distance, when eventually, it went off the road and ploughed into a ravine. Secondly, the petitioner was authorised to ply light vehicle only, but he took upon himself unauthorisedly the duty of plying heavy vehicle. The conviction of the petitioner under section 304‑A, P. P. Code, is, therefore, well‑founded.

8. One point remains to be noticed and it is that before sentencing an accused to payment of fine and ordering the award of compensation under section 544‑A, Cr. P. Code, it is incumbent on the prosecution to lead some evidence in regard to the financial position of the accused, so that in case of imposition of fine, the appellate Court on appeal or the High Court in revision might be able to decide about the propriety of imposition of fine or the quantum of fine.

9. In the instant case, there is no material on the record to show that the petitioner had the means to pay the huge amount of compensation aggregating to Rs. 3,

400. This being the position, I am constrained to accept the revision petition to the extent of setting aside the order in regard to the payment of compensation.

10. Before parting with the case, I express the hope that I in future in cases where the prosecution requires the Courts to inflict fine or order the award of compensation, it must lead evidence in regard to the capacity of the accused to pay fine. K. B. A. Petition partly accepted.