1974 P Cr (PLP)

Ch. Inayat Ullah Cheema for Petitioner. Ch. Muhammad Ashraf II for the State. Date of hearing: 8th February 1973. Noor Khan petitioner was sentenced to two years' rigorous imprisonment under section 304‑A, Pakistan Penal Code, by the Resident Magistrate, Chiniot, on 13th June, 1964. On appeal to the Sessions Judge, Jhang the conviction was maintained, but the sentence was reduced to one year's rigorous imprisonment by his order dated 20th October 1964, and he has now come up to this Court in revision.

2. The allegations against the accused, on which the conviction was based, were that he was driving Bus No. RI‑492 in Chiniot near. Bus Stand when a young girl Maqsood Bibi aged 9 years was over‑run by him. She was taken to the Hospital and medically examined by Lady Dr. Nusrat Malik (P. W. 3), who found eight injuries on her person, which were due to motor‑accident, on 15th July 1963 at 9 am. The deceased along with her uncle Yaqoob (P. W. 1) maternal aunt Mst. Bibi (P. W. 4), a relation Ghulam Muhammad (P. W. 6) and mother Mst. Khurshid (P. W. 7) was going to the bazar for shopping, when the alleged occurrence took place. Muhammad Yaqoob (P. W. 1) lodged the report (Exh. P. A.) on the same day, which was recorded by Muhammad Shafi (P. W. 8).

3. The petitioner admitted that the girl died as a result of her collision with his lorry, but he said that he was careful in driving and was not at fault. It was the fault of the girl, who came from the back of a lorry, which was coming from Sargodha, and appeared. suddenly in front of his lorry. He was driving his lorry slowly and tried his best to avert the accident. He pleaded innocence and did not produce any defence.

4. Having heard the counsel for the petitioner as well as the counsel for the State I am of the opinion that the conviction under section 304‑A, Pakistan Penal Code, requires that some rash or negligent act on the par of the accused must be conclusively established by direct evidence, which is lacking in the case in hand. Yaqoob (P. W. 1) and Mst. Bibi (P. W. 4) have only supported the prosecution and they too are not definite about the speed of the lorry. As against the testimony of these two Ghulam Muhammad (P. W. 6) and Mst. Khurshid Bibi (P. W. 7) mother of the deceased were declared hostile and cross‑examined by the prosecution and both of them have stated that no accident of the lorry with the deceased took place. Ghulam Muhammad (P. W. 6) has further stated that he was not present at the time of occurrence whereas Mst. Khurshid Bibi has stated that she was wearing Burgs and did not know how this accident took place. Muhammad Yaqoob (P. W. 1) has admitted in his cross‑examination that they did not see the deceased coming under the lorry. Mst. Bibi (P. W. 4) is leer cross‑examination has admitted that the accused was not at fault.

5. It has not been established in the present case that at the time of the accident the accused was driving the lorry at a high speed and no element of rashness or negligence in the driver's conduct has been established, therefore, 3 a case under section 304‑A, Pakistan Penal Code has not been made out against him. I may also mention here that the present revision petition was admitted on 17th December 1964 and it has come for final disposal after a lapse of eight years and about one month.

6. The upshot of the discussion is that this revision petition is accepted and the conviction and sentence of the petitioner is set aside. The petitioner was released on bail by this Court. His bail bond is discharged. Petition accepted.