1. This is a revision application against the acquittal of the applicant who was tried by the learned Additional Sessions Judge, Khairpur, for an offence under section 304-A, P. P. C.
2. The incident had taken place on 3-4-66 after sunset while the first report was lodged on 4-4-66 at l2 noon by Habibullah at Kot Diji Police Station, situated at a distance of half a mile from the scene of offence and it was recorded by Mr. Manzoor Ali, A. S. I. P.
3. Habibullah along with his uncle Mohram, his mother Mst. Hidayat Kliatoon, his nephew Juman, his brother-in-law Mohd. Ishaque and his two minor sons were waiting at Kot Diji Bus-Stand to catch a passenger bus for Gambat. They were sitting in the chairs lying in front of the hotel of Rasul Bux. All of a sudden a jeep driven by the appellant came from the opposite direction with a fast speed and ran over Mohd. Ishaque and Ghulam Hussain Tapedar. Some chairs and table were damaged.
4. Several persons assembled there. Mohd. Ishaque was removed from underneath the jeep. The appellant then removed the injured persons in a car which was parked near the hotel to Khairpur Civil Hospital. The complainant and other witnesses followed them in the jeep involved in the accident. The complainant was not satisfied with the speed of the jeep and, therefore, on the way he got down and got a taxi for Khairpur. He reached Khairpur at midnight, others reached at 1 a.m. Mohd. Ishaque was already admitted in' the hospital and his injuries had been dressed. However, at 4 a.m. he died. The complainant, therefore went to Gambat and informed his mother and thereafter went to Kot Diji Police Station and lodged the first report. After usual investigation the appellant was challaned. The complainant had also filed a direct complaint as the police took time to complete the investigation. The appellant proclaimed his innocence. He admitted that the jeep involved in the accident belonged to him but pleaded that it was being driven by his driver at the time when this incident took place and he was falsely implicated as he refused to pay compensation to the complainant who had made a demand. He further stated that after the accident he was sent for and he took the injured to the hospital. He did not examine any witness in defence.
5. At the trial the prosecution examined, Habibullah complainant, Mohram uncle of the complainant, Mr. Bahadur Ali A.S. I.P. Rasul Bux hotel-keeper, Mohd. Usman owner of teashop, Shah Bux Mashir and Mr. Manzoor Ali A. S. I. P. The evidence of Mst. Hidayat Kliatoon recorded in the committal proceedings was admitted under section 33, Evidence Act, as by that time she had died. Dr. Ambar Lai the Medical Officer was also examined in the committal proceedings and his evidence was admitted at the trial.
6. The material evidence in this case was of Habibullah, Ghulam Hussain, Mohd. Juman, Mohram, Rasulbux, Mohd. Usman, and Mst. Hidayat Khatoon. Out of them Ghulam Hussain, Rasul Bux and Mohd. Usman did not support the prosecution so far the appellant was concerned. They stated that the jeep was driven by the driver of the appellant when the incident took place and at that time even the appellant was not present but he was subsequently sent for and he took the injured persons to the hospital. The remaining witnesses, namely, Habibullah complainant, Mohd. Juman, Mohram and Mst. Hidayat Khatoon are admittedly closely related to each other. Out of them Habibullah, Mohd. Juman and Mst. Hidayat Khatoon implicated the appellant and stated that he was driving the jeep when the accident had taken place. So far Mohram is concerned his evidence is not clear. In the examination-in-chief he did not state at all that the appellant was driving the jeep. What he stated was that when they were sitting in the hotel all of a sudden a jeep came from the side of Kot Diji village and ran over the people who were sitting on the chairs. Many persons assembled and pulled out the injured from under the jeep and they were removed in a car to the hospital. He and others travelled by the jeep involved in the accident and went to Khairpur. In cross-examination he stated that he knew the appellant before the incident. However, he was confronted with his police statement where in he had stated that he did not see the driver as to who he was as he was not known to him. In the committal proceedings he had stated that as far as he remembered the name of the appellant was Altaf. On this ground the evidence of this witness was rejected by the learned Additional Sessions Judge. It was further pointed out by the learned Additional Sessions Judge that Mohram had named Shahbux as one of the persons present there. But Shah Bux who was examined did not say so about the incident, and had made no allegation against the appellant. The evidence of Hidayat Kliatoon was rejected on the ground that her name was not disclosed in the first report. With regard to the evidence of Mohd.
7. Juman it was pointed out by the learned Additional Sessions Judge that he had admitted that there were 40/50 people at the time of the incident and there was also a constable but none of them was examined. He further relied upon the evidence of the three witnesses who had not implicated the appellant and found their evidence to be more rational and probable. In the alternative he found that there was no satisfactory evidence to show that there was any culpable rashness or negligence on the part of the driver of the jeep. He referred to the certificate Exh. 21 issued by the machine Motor vehicle, Khairpur showing that some nuts of the tie-rod of the jeep were removed and this showed that while driving the tie-rod got loosened and the jeep went out of control and swered to the direction different from the one to which the driver desired to go and, therefore, the driver cduld not be in that case held responsible for the result which ensued on account of that. In conclusion he observed that the evidence of the relation witnesses was self- contradictory, uncorroborated and unreliable both on the point of identity of the appellant as well as with regard to rash and negligent act resulting in the death of the deceased and injuries to Ghulam Hussain and further independent evidence has not supported the prosecution. On the basis of these findings the appellant was acquitted.
8. I have heard the applicant who appeared in person as well as the learned counsel for the respondents and the State and it cannot be said that the reasons given by the learned Additional Sessions Judge in support of his findings are perverse or the conclusion which he reached could not be reached on the basis of the evidence that was produced before him. He relied upon the evidence of the disinterested witnesses. Out of them one was injured during the incident in preference to the evidence of the persons who were closely related to each other. It is further clear that the evidence of those interested witnesses was exaggerated and they tried to improve upon the case set up in the police. The first report was also delayed. It may be said that the complainant had gone after the injured who was taken to the hospital but all the same the report could be lodged before he left after the injured as the police station was situated hardly at a distance of 1| furlongs and furthermore even the report could be lodged at Khairpur. But no such attempt was made. The evidence of the disinterested witnesses show that the respondent was neither driving the jeep nor he was at the spot at the time of this incident but he was subsequently sent for and he took the injured to the hospital. In this connection the respondent made an allegation that compensation was demanded from him and since he refused to pay he was implicated. This contention cannot be entirely ruled out in view of the evidence and the circumstances of the present case. The learned Additional Sessions Judge gave cogent reasons for holding that the respondent was not driving the jeep. The applicant has failed to assail the findings. The learned Additional Sessions Judge also relied upon the certificate Exh. 21 issued by the mechanic to the effect that the tie-rod of the jeep was broken and on the basis of this it was held by him that the accident had taken place on account of the breaking of the tie-rod. I am not able to support this finding of the learned Additional Sessions Judge, as the certificate which was relied upon could not form the basis for reaching the conclusion. The mechanic was not examined and, therefore, the certificate issued by him was not admissible in evidence. The learned Additional Sessions Judge clearly erred in placing reliance upon this certificate. However, the material available on record is not such which will justify the order of retrial.
9. In the result I dismiss the revision application. .