' SARMAD JALAL OSMANY, J.---This petition impugns the judgment of the learned Sindh High Court in High Court Appeal No, 179 of 2007 whereby the same was dismissed while upholding the judgment and decree passed in Suit No, 1132 of 2003 filed under the Fatal Accidents Act, 1855.
2. Mr. Umar Hayat Sindhu, learned Deputy Attorney-General has firstly submitted that both the learned Single Judge as well as the learned Division Bench had not appreciated the facts available on record vis-a-vis the defences taken by the petitioner. In this regard he has referred to the written statement whereby the defence of contributory negligence has been taken by the petitioner as to the incident in question in which the deceased Javed Akhtar Khan lost his life.
Furthermore, that the accident, occurred due to failure of the brakes of the vehicle in question and hence was not a case of rash and negligent driving as alleged.
3. With regard to the pleas raised by learned D.A.-G. We had confronted him with the evidence on the record whereby it is clearly admitted by the petitioner's witness that she was not aware whether the deceased was wearing a helmet or not. So also we would agree with the learned forums below that indeed it was a case of rash and negligent driving since the petitioner was under a duty to maintain its vehicle properly and whether the brakes failed or not, it is a fact that the truck dashed against the stationary motorcycle resulting in death of the deceased for which the petitioner was entirely responsible. No other point was raised by the learned D.A.-G. And hence we do not deem it fit to interfere with the conclusions reached by the Learned Division Bench and the learned Single Judge of-the High Court.
4. For the above reason, this petition is dismissed and leave refused.