1977 P Cr (PLP)

This is an application in revision against the judgment of the Sessions Judge, Lahore, dated 28-1-1965, whereby he dismissed the appeal of petitioner Ali Muhammad from his conviction and sentence recorded under sections 338 and 304-A, P. P. C. on 30-11-1964.

2. The petitioner admittedly was the driver of truck No. LE 5518. That truck is said to have been driven at high speed during the night between the 24th and 25th of June 1964, with the result that it went over the footpath in front of the eastern main gate of Mayo Hospital, Lahore, injuring Muhammad Aslam aged 5 and Mst. Shehnaz aged 3, the children of Sadiq Ali complainant. Muhammad Aslam died the following day. The occurrence was seen by Sadiq Ali complainant (P. W. 6) who had been sleeping with his children on the pavement, and by Abdul Rahim (P. W. 1) and Muhammad Rafiq (P. W. 3). Faiz-urRehman (P. W. 4) who happened to be coming in his car immediately after the occurrence, was told that a truck bearing No had caused the accident. LE 5518, where after he went in pursuit of it in the direction given by the persons present. He sighted the truck near the round-about at Bhati Gate and pursued it in his car. On the way he took policemen in his car from Lytton Road Police Post and was able to stop the truck at Jail Road. The accused and the truck were taken to the Lytton Road Police Post. The prosecution case was supported by the aforementioned witnesses. The petitioner had pleaded innocence and although be had admitted that he had been driver of the particular truck, yet he had denied that he had driven near the Mayo Hospital. He stated that he was assigned the task of removal of malba from Jail to Gulberg II and that he had parked his truck there and had gone to sleep when the police came and woke him up. In defence he had examined his employer Muhammad Ali but the evidence of the witness is of no help.

3. The contention is that the truck having not been clearly identified, the petitioner was not the person responsible for the tragedy and as such his conviction and sentence are liable to be set aside. I have gone through the evidence on this point. Sadiq Ali (P. W. 6) father of the victims has not given the number of the truck. Abdur Rahim (P. W.1) gave the number of the truck as LE 5518 but he admitted that he was illiterate and that the driver of a car, which had been coming from behind, had told him the truck number. That driver of the car has not been produced. Obviously, he is not Faiz-ur Rehman (P. W. 4) because the latter had come after the truck had left and he himself got the truck number from others. Muhammad Rafiq, the other witness of the locality, also does not give the truck number though he says that the truck standing outside the trial Court had been the same as involved in the accident but in the absence of any specific description of the truck, that identification is of little avail. The key witness is Faiz-ur-Rehman, because he had pursued and located the truck but he stated that someone, whose name he did not know, had given him the truck number. That person, according to him, was not the complainant. So there is no clear evidence that the truck involved in the accident was truck No. LE 5518.

4. There is another discrepancy affecting the identity of the truck. According to Muhammad Rafiq (P. W. 3) the truck had been loaded with sand but according to Mahboob Ali A. S. I., who had secured the truck the same had been empty. Since the creek hid been pursued by Faiz-ur-Rehman, until it had been stopped and secured, there is no evidence to show that the truck had been able to unload itself.

5. In view of these facts, the identification of the truck is not free from doubt and as such the crime cannot be pinned down to the petitioner. The conviction of the petitioner on the material on record is not warranted. I, accordingly, accept this petition, and set aside the conviction and sentence, recorded against the petitioner- He is on bail and is discharged of the bail bond. Petition allowed,