P L D 1965 (W (PLP)

(4) An abrasion " x " on front of left knee. (5) An abrasion 1" x 1/8" over the front of chest on the right side. The injuries were simple. Khuda Bakhsh had (1) A lacerated wound 1" x " x muscle deep over the eye‑brow. (2) A lacerated wound 1 " x " extending from the left nostril and cutting the upper lip into two. (3) A lacerated wound " x " x skin‑deep over the mid chin. The injured person was unable to move the lower limbs. The pelvis was tender on pressure. The injuries were grievous. Hamesh Gul had (1) An abrasion " x " over the nose. (2) Linear 3" abrasions over the left cheek extending from below the eye obliquely to the left nostril. (3) An abrasion 4" x 3" over the right side chest below the nipple. (4) An abrasion over the left mast‑oid 1" x ". (5) An abrasion " x " over the mid front right leg.

4. The petitioner pleaded not guilty to the charge and denied the prosecution allegations against him. He said in his statement that he had not noticed the train approaching nor the driver had blown the whistle. The petitioner asserted that he was driving the truck at an average speed when he met with the accident at the level crossing. He examined Hamesh Gul in his defence who stated that he was sitting with the driver on the front seat of the truck. It was going at an average speed, that there were trees and standing crops on both sides of the road going from village Balo towards the level‑crossing, that the gate of the level crossing was open and when the petitioner tried to cross the line the train suddenly appeared from Nowshera side and struck the ill‑fated truck in the rear killing Umar Khitab and injuring Hamesh Gul, Khuda Bakhsh and Raza Khan petitioner. Hamesh Gul was essentially a prosecution witness but it seems the prosecu tion did not examine him. He travelled in the ill‑fated truck and received injuries in the collision. I, therefore, see no reason to doubt the correctness of his statement.

5. The evidence of this witness as regards the standing crops and orchards on both sides of the road is supported by I. H. C. Khaliqdad (P. W. 3) and Abdul Khaliq (P. W. 4). The Head Constable visited the spot soon after the occurrence and the admission on his part on a material aspect of the defence case cannot be lightly brushed aside. He found that the gates of level crossing were open. To the same effect is the statement of Abdul Khaliq who was going on a bicycle from village Balo to his shop at Peshawar. He had gone to a distance of 90 paces from the level‑crossing when he heard the noise of the collision. He returned to the scene of accident. He found Khitab Gullying dead, while Khuda Bakhsh, Hamesh Gul and Raza Khan petitioner were injured. Abdul Khaliq went and informed Gulab of the death of his son as a result of the impact. Abdul Khaliq admitted in cross‑examination that there were sugar‑cane crop and orchards on both sides of the road leading towards the Railway line from village Balo. Ghulam Mustafa (P. W. 8) was the Guard of the Khyber Mail, but he came out of his cabin after the occurrence and reported the matter to the Station Master, Nasar Pur. Mian Khan (P. W. 9) who was the driver of the train deposed that he whistled when the train arrived at Taru Jabba Railway Station and noticed the truck approaching from the northern side towards the level‑crossing No. C. 146 and in the attempt to cross the Railway line collided with the engine of the Khyber Mail. There is no corroboration of the statement of the engine driver that he whistled at Taru Jabba Railway Station which is at a distance of two furlongs from the scene of the crime. Even the Guard of the train did not say so in his statement. Mohib Gul (P. W. 11) who was working in his field at some distance was attracted to the spot on hearing the noise of the impact of the train with the truck.

6. It is clear on the record that the gates of the level‑crossing were not closed. There were standing crops and orchards on either sides of the road leading to the level‑crossing on which the petitioner was taking his truck. He was going at an average speed. The question is whether in the circumstances the petitioner could be held responsible for rash and negli gent driving when he tried to cross the Railway hoe. I think not. In trying to cross the Railway line when the gates of the level‑crossing were open it cannot be said that the petitioner acted in a rash or negligent manner or that he knew that in his attempt to cross the Railway line he would collide with the engine of the Khyber Mail. There is not a scintilla of evidence to prove that the petitioner was aware of the approaching train and still he attempted to cross the Railway line. No direct authority on the question involved in the instant case is forthcoming but on the parity of reasoning in the case reported as The Directors of North‑East Railway Company v. Wanless (22 W R 561) it can safely be held that the petitioner when he found the gates of the level‑crossing open, he was justified in thinking that it was safe to cross the line and if he failed to observe any extraordinary precaution to see whether any train was due or approaching, he cannot be fastened with criminal liability. There is ample authority for the proposition that if in an attempt to cross the line, when the gates of a level‑crossing are open and injuries are caused to a person crossing the Railway line, the Railway Company is liable to damages.

7. I am of the view that the prosecution failed to prove rash or negligent act on the part of the petitioner in the instant case. I would, therefore, accept the revision petition, set aside the conviction and the sentence passed upon the petitioner. He is ordered to be acquitted. The fine, if paid, shall be refunded to him. The show‑cause notice issued to Raza Khan for the enhancement of sentence is discharged. K.B. A. Petition accepted.