Applicant above-named, being aggrieved by judgment dated 26th October, 1982 of the learned VIth Additional Sessions Judge, Karachi, by which his appeal was dismissed and judgment dated 24th March, 1980 of the learned Vth A. C. M. Kalakot (South), Karachi, by which applicant was convicted under section 304-A, P. P. C. And sentenced to suffer R. I. For one year and to pay fine of Rs. 1,000 or in default of payment of fine to suffer further S. I. For 3 months and was also directed to pay compensa--tion of Rs. 1,000 to the heirs of the deceased and in default of payment of compensation to undergo further S. I. For 3 months, was confirmed, has preferred the above petition on the facts and grounds mentioned in the above petition.
2. The learned Advocate for the applicant in support of the above petition submitted, that the prosecution has failed to establish rashness and negligence on the part of the applicant in order to attract provisions of section 34-A, P. P. C. And consequently on a statement of P. W. 7, who is the only eye-witness of the incident, the conviction of the applicant was not justified and could not be sustained. In support of this contention, the learned Advocate for the applicant relied upon the cases reported in 1969 P Cr. L J 1228 and 1968 P Cr. L J 141.6 and 1438. The learned Advocate further submitted, that the cause of the death of deceased Hassan Ali Shah was not established as the doctor, who perform--ed the post-mortem examination was not examined, without any cogent reason. In support of this the learned Advocate relied upon the case reported in 1975 P Cr. L J - 952.
The learned Advocate further submitted, that even the time of the incident is not fully established as there are material contradictions regarding this, in the statement of P. W. 7 as well as documents on record. In view of these submissions the learned Advocate for the applicant further submitted, that the judgments of both the learned trial Courts cannot be sustained.
3. The learned Additional Advocate-General appearing for the State of the outset submitted, that he is not supporting the impugned judg--ments as the prosecution has failed to establish rash and negligent driving, on the part of the applicant.
4. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R. & P. Of the learned trial Court and judgments of both the learned lower Court as well as through the cases cited by the learned Advocate for the appellant.
5. The only eye-witness of the incident examined by the prosecution, before the learned trial Court was P. W. 7 Atlas Khan. I have carefully gone through his statement and find that nowhere in his statement he has mentioned the rash and negligent driving of the applicant, which was responsible for causing the accident, in question. This witness only states, that the truck in question was being driven fast. Mere mention of the alleged speed of the truck, by itself does not establish rashness and negli--gence on the part of the applicant. This conclusion of mine is fully sup-- ported by cases reported in 1969 P Cr. L. J 1228 and 1968 P Cr. L A 1416 and 1438. In addition to this the doctor, who performed the post-mortem examination on the body of the deceased by, was not at all examined before the learned trial Court and no cogent reasons for his non-examination have been mentioned in the impugned judgment and consequently the cause of the death of the deceased by, in my opinion, has not been established. In this connection the case cited by the learned Advocate for the applicant reported in 1975 P Cr. L .1 952 is fully applicable to the present case. It may further be noted, that there is also contradiction about the time of accident in the prosecution evidence brought on record. Keeping in view all these facts, I am of the opinion, that the prosecution has failed to establish its case beyond reasonable doubt against the applicant and as such the judgments of both the learned lower Courts are based on misreading of the evidence on record and suffer from illegality and/or material irregularities and as such cannot be sustained.
5. Therefore, I allow the above petition and set aside conviction of the appellant as well as sentences awarded to him, by both the impugned judgments and acquit him by giving him benefit of doubt and direct that applicant may be released forthwith, if he is not required in any other case.