This is a revision petition filed by Abdul Latif, petitioner against the judgment of Mr. Muhammad Hassan Sindhar, Sessions Judge, Rawalpindi, dated 14th September, 1968, dismissing the appeal of the petitioner, but reducing the fine payable by him to Rupees Five Hundred (Rs. 500) and the penalty for its default from six months rigorous imprisonment to four months' rigorous imprisonment. Earlier, Raja Irshad-ul-Haq Kayani, Magistrate Section 30, Rawalpindi, by his judgment dated 29th February, 1968, had convicted the petitioner under section 304-A, P. P, C. And sentenced him to one month's rigorous imprisonment and a fine of Rupees One Thousand (Rs.
1,000) or, in default, to further undergo rigorous imprisonment for six months.
2. The brief facts of the case are that on 7th February, 1967, His Majesty Shah of Afghanistan visited Rawalpindi. As many as one thousand students from a single institution, where the deceased was enrolled, were transported to the airport, so as to swell the crowd at the airport to greet the visiting monarch. Three buses were arranged, most obviously by the District Administration, for transportation of the students to the airport and back. The accused was driving one of these buses.
On their way back from the airport; several students, including the deceased, were seated on the roof of the bus which the accused drove to the school. During the way the deceased was struck in the head by a branch of a tree projecting on the road side. He returned to his house at about 12-30 noon. Shortly afterwards he was found in anguish and pain. He disclosed the cause to his father how he was struck in the head while he was seated on the roof of the bus. The deceased was rushed' to the hospital where unfortunately he expired next day. The incident was reported to the police next day by Mr. Mahmud Ahmad, father of the deceased, and a lecturer in the Local Government College, Rawalpindi.
3. On the testimony of Syed Shabab Haider P. W. 2, a teacher, who accompanied the students in the bus driven by the accused, and Muhammad Taj P. W. 3, Tariq Mahmood P. W. 4 and Abid Ali P. W. 5, three students who had accompanied the deceased in the same bus, both the lower Courts convicted and sentenced the accused, as stated in para. 1 above.
4. I have heard the arguments of the learned counsel for the petitioner and the State and have also perused the record. The only point raised by the learned counsel for the petitioner is that though it is proved in the evidence that the deceased student Khalid Mahmood was seated on the roof of the bus which the petitioner was driving on his way back from the airport to the school, yet there was no evidence to show that the driver bad knowledge of such fact and, therefore, could be saddled with the element of gross negligence. With the assistance of the learned counsel for the State I have read the evidence. The nearest evidence on this crucial point is that of Abid Ali P. W. 2.
He stated that when he and his companions tried to get on to the roof of the bus, the teachers stopped them, but when the bus started they jumped on to the roof. He also stated that before the bus started, the petitioner (the driver) had stated that nobody should sit on the roof, but when the bus started they all got on to the roof. Muhammad Taj P. W. 3 affirmed in cross-examination that when they sat on the roof they never informed the driver about it. Tariq Mahmood P. W. 4 stated that when the bus started, they immediately jumped on to the, bus and proceeded to the roof. He affirmed that he did not know if the petitioner had any knowledge that they were sitting on the roof.
He also stated that nobody stopped them when they went to the roof. This is about all the evidence there is on the crucial point whether the petitioner (driver) bad the knowledge that certain students including Khalid Mahmood deceased were seated on the roof of his bus whilst travelling from the airport to the school. This evidence does not show that the petitioner had unequivocal knowledge that certain boys were seated on the roof of the bus on the way back to school. In the absence of such a knowledge, gross negligence cannot be imputed to him. There is also no evidence to indicate that the conductor knew about this and had informed the petitioner. In these circumstances, the petitioner cannot be held liable for an offence under section 304-A, P. P. C.
4. For the foregoing reasons, this petition is accepted and the conviction and sentence of the petitioner is set aside. The petitioner has already served the sentence. The fine shall not be recovered from him.