1. This is a revision application against the judgment of the Joint Civil Judge and 1st Class Magistrate, Mirpurkhas convicting the appellant for an offence under section 304-A P. P. C. And section 337, P. P.
2. C. And sentencing him to undergo R. I. For 12 month. And 3 months respectively. The appeal against the con--viction and sentence was dismissed by the learned Sessions Judge, Tharparkar.
3. On 25th October 1956 Mr. Mohammad Suleman A. S. I. P. Along with Mohammad Murid Head Constable, Gordhandas H. C. Dawood Foot Constable, Murid Kapri, Kadirbux, Ismail, Mohammad Khan, Mohammad Din and Moula Bux left in a jeep for Murid Kapri village in connection with an investigation. Atta Mohammad was driving the jeep. When they reached Ratana---bad railway crossing a bus said to have been driven by the appellant came from the opposite direction with a fast speed and struck the back side of the jeep. The bus bore No. T. R. 349. As a result of this collision Ismail, Mohammad Din and Murid and Atta Mohammad who were in the jeep sustained injuries.
4. The driver of the bus stopped the bus at some distance and then immediately drove away. The injured persons were taken to the hospital and first report was lodged. On the same day the appellant was arrested while he was driving the same bus while going from Tando Allahyar to Mirpurkhas. After usual investi--gation he was challaned. He proclaimed his innocence and denied that he was driving the bus at the the of this accident.
5. The prosecution case against the applicant was founded upon the evidence of Mohammad Khan, Murid, Kadirbux, Khan Mohammad, Moulabux, Mir Mohammad and Yamin A. S. I. P. All of them implicated the applicant as being the driver of the bus which caused the accident. Their evidence was believed by the lower Courts.
6. There can be no manner of doubts that the accident had taken place as a result of the collision of the bus with the jeep. The bus had struck the back portion of the jeep. It is also in evidence that the bus was being driven at a fast speed and although the jeep had gone towards Kutcha side to allow the bus to pass still the bus had dashed against the jeep. Several persons who were in the jeep had sustained injuries. Thus it has been fully established that the driver of the bus was driving the bus negligently.
7. The next question that arises for consideration is whether the appellant was driving the bus at the relevant the. I have gone through the evidence of the various witnesses and I am unable to share the view taken by the lower Courts. The evidence which had been produced wish regard to the identity of the, applicant has not inspired confidence and it does not help to come to a positive conclusion that the applicant was driving the bus. Barring the A. S. I. P. All the witnesses stated that the driver of the bus was not known to them previously. No iden--tification test was held. In the absence of the identification test it is not possible to ensure that they had not laboured under a mistake when they claimed that the applicant was the driver of the bus. Even the evidence of the A.
8. S. I. P. Is not worthy of any credence. He claimed that he knew the applicant before the incident but the first report which was lodged soon after the incident did not contain the name of the applicant.
9. It appears that the applicant was implicated on suspicion only as he was secured while he was driving the same bus on the same day. Even this circumstance does' not help the prosecution as the bus had gone back' to Tando Allabyar and it was thereafter- that the applicant was found driving the bus to Mirpurkhas when he was secured. It may be pointed out here that the bus was going towards Mirpurkhas when the accident had taken place and it continued its journey to Mirpurkhas even after the accident. The bus haulted for sometime at Mirpurkhas and then returned to Tando Allahyar. It was thereafter that the applicant took the bus to Mirpurkhas and on the way he was secured. So the possibility that the original driver; whoever he may be, after taking the bus to Tando Allahyar went away and it was then given to the applicant to take the passengers to Mirpurkhas, cannot be ruled out. At any rate the case is not free from doubt, and, therefore, the applicant is entitled to its benefit. The learned counsel for the State also did not support the prosecution.
10. In the result I allow the revision application and set aside the conviction and sentence passed against the applicant and acquit him. He is on bail and his bail bonds are discharged.