1. This is an appeal against the judgment of the Additional Sessions Judge, Karachi, convicting the appellant for an offence under section 304-A, P. P. C. And sentencing him to undergo, R. I. For 2 years and pay a fine of Rs. 1,000 or in default to undergo R. I. For 6 months, ordering further that if the fine is recovered it may be paid to the heirs of the deceased.
2. On 6-3-66 at about 6 p .m. Imamdin was trying to cross the road and had covered hardly a few paces from the foot-path when to buses came racing and one of the buses bearing registr--ation No. KAU-9006 driven by the appellant ran over Imamdin and seriously injured him. The incident was witnessed by Mohd. Amin, Khalil Ahmed and Rafique Ahmed who carried the injured to the hospital where he died. The appellants stopped the us at a short distance and several persons collected and secured him. The medical officer contacted the police on phone and Mr. Choudhry Mohd. Tufail A. S. I. P. After recording the message in the roznamcha proceeded to the Jinnah Hospital where he prepared the inquest report of the dead body. He also found Khalil, Refique and Wajid present in the hospital and their statements were recorded. Thereafter he went to the scene of offence where he found the appellant and the bus. Constable Abdul Jabbar who was already deputed by the S. H. O. Was also there. The appellant was arrested. The Motor Vehicle Inspector was sent for and he examined the bus. After usual investigation the appellant was challaned in this case. He was also challaned under the Motor Vehicles Act as the fitness certificate of the bus which had expired in June in the previous year was not renewed. The appellant pleaded guilty in that case and he was convicted.
3. The appellant proclaimed his innocence and denied having driven the bus or caused the accident.
4. He also denied that he was caught soon after the incident. With regard to the witnesses he stated that they were interested being relations and neighbours of the deceased. He further stated that he was unemployed in those days and had gone in search of service when the police caught him and other drivers but the others were let of on payment of money and he was falsely involved in this case. He did not examine any. Witness in defence.
5. The case wag committed to the Court of Session and it was tried by the learned Additional Sessions Judge. At the trial, the prosecution examined Mohd. Amin, Nizamdin brother of the deceased, Amanat Javed A. S. 1. P., Khalil Ahmed, Rafique Ahmed, Wajid Hussain, Mr. Safdar Shah S. I. P., Abdul Jabbar Police Constable and Dr. Miss Munawwar Alvi.
6. There can be no manner of doubt that Imamdin was killed as a result of the accident. Apart from the ocular testimony this is borne out by the medical evidence. So far the identity of the appellant with the crime is concerned the prosecution case is based on the ocular testimony of three witnesses, Mohd. Amin, Khalil Ahmad and Rafique. They all stated that to buses carne racing and one of the buses driven by .The appellant dashed against Imamdin and he was seriously injured.
7. He was then removed to the hospital where he died. Khalil Ahmad further says that the appellant was caught by the people and kept at the spot till the arrival of the police. Wajid Hussain was informed by Rafique soon after the incident. At that the he was sitting in the hotel. He also went there and then he along with others removed Imamdin to the Jinnah Hospital.
8. The presence of these witnesses cannot be doubted for it has been established by the other evidence available on record. In the first place it has been stated by Mr. Safdar Ali Khan S. I. P. That when he went to the hospital in pursuance of the phone message received from the doctor he found all the four persons present there and he recorded their statements. Thus the conten--tion of the witnesses that they had removed the injured to the hospital cannot be doubted. Similarly the evidence of Khalil, Rafique, and Amin who had witnessed the accident must also be accepted. They had no reason to falsely implicate the appellant. It is true that they were neighbours of the deceased but that by itself is no ground to discredit their testimony. On the contrary this itself supports their presence as they being of the same locality were waiting on the bus stop for the bus in order to go to their houses. The contention of the learned counsel that the witnesses were not present and they were later set up cannot be accepted. Their presence is further established by the fact that inquest report Exh. 3 bears the signature of Mohd. Amin and Mohd. Rafique who had acted as Mashirs. Wajid Hussain and Mohd. Amin had acted as Mashirs of the place where the dead body was lying and the recovery of the shirt and pant from the person of the dead body and the Mashirnama Exh. 4 bears their signatures. Then there is Mashirnama Exh. 5 of the scene of offence and it bears the signatures of Mohd. Amin and Khalil Ahmed as Mashirs.
9. The evidence is further corroborated by the fact that the appellant was captured at the spot along with the bus. This has been established by the evidence of Khalil Ahmed and supported by the evidence of Abdul Jabbar Constable who was deputed by the S. H. O. To the scene of offence.
10. When Abdul Jabbar went there he found the appellant along with the bus. He, therefore, arrested the appellant and kept him there till the arrival of the S. H. O. Safdar Khan S. H. O. Who went there after preparing the inquest report also found the appellant there and arrested him, The allegation of the appellant that he was not at the spot and was subsequently sent for cannot be accepted.
11. The appellant could not have been secured unless he was responsible for the accident and was available at the spot. He was captured by the persons who gathered there and detained till the constable arrived The appellant has failed to explain this important circumstance appearing against him. On the contrary, he dishonestly denied it and, therefore, an adverse inference can be drawn. Against him. He did not examine any witness to support his allegations or that he was not the driver of the bus.
12. It was urged by the learned counsel for the appellant that Mohd. Rafique stated in his evidence that he had not seen Khalil Ahmed at the spot and Khalil Was his own father, and further he stated in the committal proceedings that Mohd: Amin was not there. It appears that on account of the confusion and gathering of a large number of persons as well as on account of his anxiety to remove the injured to the hospital, he failed to notice the presence of his own father. As already pointed out the presence of Khalil Ahmad has been fully established by the documentary evidence, as well as by the evidence of the S. H: O: So far the omission of the name of Mohd. Amin in. The evidence of Rafique in the committal proceedings is concerned it is not of much value in view of the material available on record which fully establishes his presence.
13. There can also be no manner of doubt that the appellant was rash in driving the bus. . He and the driver of the other bus had engaged in competition and. Racing, and were driving the buses at very fast speed in the heart of the town and consequently he is guilty of the offence.
14. In the result, I maintain the conviction and sentence passed against the appellant and dismiss his appeal. He is on bail and he should surrender his bail to undergo the un-expired portion of the sentence.