This revision petition is directed against the order of the learned Additional Sessions Judge Multan dated 4-4-1982 dismissing the appeal filed by the petitioner against his conviction and sentence under section 304-A, P. P. C. Recorded by Mr. Shaukat Ali, Magistrate Section 30, Kabirwala dated 30-12-1979 sentencing him to 3 years' R. I. And a fire of Rs. 5,000 or in default of payment of fine to further undergo 6 months' simple imprisonment.
2. The relevant facts of the case are that on 20-5-1975 at about 7.30 a.m. Muhammad Husnain Shah alongwith Muhammad Afzal were waiting for their car at Bagar Bridge. In the meantime Jeep No. MN-916 driven by Manak Ali came from Shorkot side in which Syed Khawar Ali Shah (P. W. 6) and Syed Niaz Hussain Shah deceased were travelling. All of a sudden Bus No. LRA-2312 driven by Muhammad Suleman petitioner at a high speed and in rash and negligent manner came from Multan side and banged into the aforesaid jeep. As a result, Syed Khawar Ali Shah, Syed Niaz Hussain Shah and Manak Ali driver of the jeep got injured. They were removed to the Civil Hospital Kabirwala for treatment. Muhammad Husnain Shah, went for lodging the report at the police station, but on the way he met Ghulam Muhammad, A. S. I. (P. W. 5) who recorded his statement Exh. P. B. On which formal F. I. R. Was drawn up at police station.
3. Dr. Abdul Ghaffar (P. W. 12) Medical Officer, Kabirwala found six injuries on the person of Manak P.
W. On various parts of his body including one grievous hurt involving the fracture of his nasal bone.
The same doctor observed 2 injuries on the person of Khawar Ali Shah, one being on forehead and the other on his left knee, later found to be simple.
Syed Niaz Hussain Shah suffered one head injury 3" X 2" on his left temple region. He was bleeding from nose and his nasal bone was also fractured. He was in shock and vomited blood. In view of serious condition he was removed to the Sial Hospital, Multan where he died on 22-5-1975. It is noteworthy that no post-mortem examination was carried out on the dead body of Niaz Hussain Shah deceased. The police after usual investigation put the challan in Court for trial.
4. At the trial the prosecution in support of its case examined 13 witnesses. It relied on the eye- witness account furnished by Syed Muhammad Husnain Shah (P. W. 2), Muhammad Afzal (P. W. 8) and two injured persons namely Syed Khawar Ali Shah (P. W. 6) and Manak Ali (P. W. 13) who were travelling in the ill-fated jeep at the relevant time. The medical evidence furnished by Dr. Abdul Ghaffar (P. W. 12) provided corroboration to the prosecution story told by the aforementioned eye- witnesses.
5. The petitioner, when examined under section 342, Cr. P. C., denied the allegations in toto and professed his innocence saying that he was falsely implicated in the case by Syed Khawar Ali Shah (P. W. 6) a big Zamindar of his Ilaqa. He however, did not produce any evidence in defence. The learned Trial Magistrate having examined the material on the record believed the prosecution case on the strength of the evidence of the eye-witnesses and held the petitioner guilty under section 304-A, P. P. C. For having driven his bus in rash and negligent manner resulting in the death of Syed Niaz Husnain Shah and simple injuries to Khawar Ali Shah, P. W. And grievous hurt to Manak Ali P. W.
And sentenced him accordingly. Against his conviction the petitioner filed appeal in the Court of Sessions Judge which was dismissed by Malik Shahbaz Khan,. Additional Sessions Judge by his order dated 4-4-1982, and upheld the conviction and the sentence. Being aggrieved the petitioner has filed the instant revision.
6. Learned counsel appearing on behalf of the petitioner did not challenge the factual aspect of the prosecution case and urged that taking the facts proved on their face value an offence under section 304-A, P. P. C. Is not made out. His objection is that because no medical evidence has been brought on record by the prosecution to prove that Syed Niaz Hussain Shah, deceased, had died on account of the injuries he had suffered in the alleged accident, therefore, an offence under section 304 A, P. P. C. Has not been proved. Dr. Abdul Ghaffar (P W. 12) who examined the deceased in his life--time for his injuries had found on his person extensive injuries on the head and nose.
Muhammad Tufail, A. S. I. (P. W. 9) stated that post-mortem examination on the dead body of Syed Niaz Husnain Shah was conducted in Sial Clinic by a doctor of Nishtar Hospital but neither the post- mortem report is forthcoming nor the doctor who carried out the post-mortern examination has been produced at the trial. There is, thus, no positive proof to hold with certainty that the injuries suffered by Niaz Husnain Shah were the direct cause of his death. In this regard I am supported by the view expresse by Muhammad Munir Farukee, J., in Abdul Latif v. The State (1972 P Cr. L J 4095), whereas a number of authorities relevant to the point involved were surveyed by the learned Judge. In these circumstances the conviction of the petitioner under --section 304-A, P. P. C.
Cannot be sustained.
7. However, there is ample evidence to prove that besides Niaz Husnain Shah, deceased, Manak Ali (P. W.) also suffered grievous hurt in the occurrence, therefore, the petitioner can be safely convicted under section 338, P. P. C.
8. From the discussion above, I set aside the conviction and sentence of the petitioner under section 304-A, P. P. C. And convict him under section 338 P. P. C. And sentence him to one year's rigorous imprisonment and a fin of Rs. 1,000 (Rupees one thousand only) or in default, three months' rigorous imprisonment because the occurrence relates to the period prior t introduction of the Ordinance (111 of 1980) providing severe sentence.
9. The revision petition is partly accepted in the terms indicated