This appeal arises from the judgment of the learned Magistrate Sec--tion 30, Dera Ghazi Khan dated 18th August, 1981 whereby, he convicted Muhammad Musa appellant under section 304; P.P.C. For causing -the death of Muhammad Ramzan and sentenced him to six years' R. I.
2.The prosecution case is that on 4th August, 1978 at 8 a.m. Near Ada Saeedwala, the appellant while driving a motor-cycle in a rash and negligent manner caused the death of Muhammad Ramzan by over--running him.
3. The prosecution examined as many as 8 witnesses. Out of whom, Muhammad Sharif P.W. 1, Khair Muhammad P.W. 2 and Allah Bakhsh P. W. 5 are the eye-witnesses of the occurrence. Muhammad Sharif P. W. 1 and Khair Muhammad P.W.
2. While supporting the prosecution case, have stated that the motor-cycle which was being driven by the appellant hit the deceased who after receiving the injuries died at the spot. Allah Bakhsh P. W. 5 did not support the prosecution and was declared hostile. He stated that the appellant was driving the motor-cycle at a low speed and also had blown the horn and applied the brakes, P. W. 3 Abdur Rahman, stated that he was informed by Muhammad Sharif P. W. 1 that Muhammad Ramzan had died in an accident. P. W. 7 Dr. Abdul Waheed stated that he examined the dead body of Muhammad Ramzan and found 11 injuries on his person. In his opinion the death was due to shock and injury No. 1 found on the head of the deceased. It is worth notice that on the application of Abdur Rahim, brother of the deceased, post- mortem examination on the body of the deceased was not conducted.
4. While examined under section 342, Cr. P.C. The appellant denied the incriminating circumstances and stated that he had not caused the death by rash and negligent driving and, in fact, the deceased had con--tributed to his death, as he himself all of a sudden came out just in front of the motorcycle. He produced Ghulam Farid and Allah Wasaya in his defence.
5. The learned counsel for the appellant contends that it was a case of accident pure and simple and as such the appellant could not be convict--ed for culpable homicide not amounting to murder. As against this, the learned State counsel has defended the impugned judgment.
6. After hearing the learned counsel for the parties and going through the record I am inclined to agree with the learned counsel for the appellant that even it the prosecution case is accepted at its face value, a case of culpable homicide not amounting to murder is not made out. In the F.I.R.
And the evidence it has been clearly stated that the death was caused by rash and negligent driving. The appellant had no enmity with the deceased. I further find that the dead body of the deceased was not subjected to post-mortem. In this view of the matter the exact cause of death cannot be ascertained.
For all these reasons I am of the opinion that the appellant at the worst had committed an offence punishable under section 338, P.P.C. He has admitted that the deceased had died by striking with his motor-cycle. The conviction under section 304, P.P.C. Is, therefore, altered to one under section 338, P.P.C. On the question of sentence I find that the appellant's relatives have compensated the legal heirs of the deceased. It B has been admitted before me by Abdur Rahim that he as an heir of the deceased had received Rs. 20,000 as compensation. I further find that the appellant was convicted on 18th August, 1981 and since then he is in jail. Keeping all the circumstances in mind I am of the opinion that the sentence already served out by him would meet the ends of justice. The sentence awarded to him is reduced to one already undergone. The appellant shall be released forthwith if not required in any other case.
With this modification the appeal is dismissed.