This revision application has been filed under section 435/439, Cr.P.C. By the appellant /convict. In Case No. 39/85 arising out F.I.R. 111/81 of Police Station Arambagh, Karachi, by judgment, dated 5-8- 1985, the learned A.C.M. VI (South), Karachi convicted the appellant under section 304-A , P.P.C. And sentenced him to undergo R.I. For one year and also to pay a fine of Rs.1,000 and in default in to payment of fine to undergo R.I. For 3 months more. The appellant filed an appeal being Criminal Appeal No. 79/85 but, by judgment dated 12-2-1986, the learned V Additional Sessions Judge (South Karachi dismissed the appeal. Being aggrieved, the appellant has filed the present criminal revision application. I have heard the argument of Mr. Fazalur Rehman's, learned counsel for the applicant and Mr. Muhammad Ibrahim Memon, learned Additional Advocate-General who has appeared on behalf of the State.
2. The case against the applicant was that while driving bus registration No. 800-633 he hit deceased Sher Bahadur on M.A. Jinn., Road at about 10-15 a.m. On 6-10-1981 causing injuries to the, deceased who later on died the same day in Civil Hospital, Karachi. According to the prosecution case, the accident was caused on account of and negligent driving by the appellant. Report about the accident made by Head Constable Badruddin of Traffic Police Buckle No.6521 to Aram Bagh Police Station through telephone. Preliminary investigation was carried out by A.S.I. Rifat Ali Shah. In his statement under section 342, Cr.P.C., the applicant denied the incident and he took the plea that he had been falsely implicated. However, he examined witnesses in his defence, D.W.1, Muhammad Miskeen and D.W. 2 Azizur Rehman's, who admitted the accident.
3. In support of the present Revision Application, Mr. Fazlur, Rehman's, learned counsel for the applicant, raised the following contentions:---
(a) It was first contended that there is no eye-witness in this cry except P.W. 1 Badruddin and his evidence cannot be believed as in the F.I.R., A.S.I. Rifat Ali Shah does not name Badruddin as eye- witness but only refers to Bashir (P.W.2) and Muhammad Khadim as the only eye-witnesses.
According to the learned counsel, P.W. Bashir has stated in his evidence that he did not see the accident the other eye-witness Muhammad Khadim was not produced by prosecution.
Then the evidence of two defence witnesses supports the case of the prosecution that it was the applicant who was driving the bus at the time of the accident which was caused by the applicant.
D.W. 1 Muhammad Miskeen (Exh. 11) has stated that the bus in question was being driven by the applicant and although he did not see the incident, he heard passengers of the bus shouting that accident had taken place. According to this witness, the bus moved ahead but on the next traffic signal the traffic police stopped it and then the police took the bus and the applicant to the police station. D.W. 2 Azizur Rehman's Exh. 12 has deposed in his evidence that on the day of the accident at about 10-00 or 10-30 a.m. He saw an old man ,crossing or M.A. Jinnah Road and at that time the bus in question which was being driven at a very slow speed came from Saddar side and as the bus stopped the old man himself dashed against the bus and received injuries on his head and other parts of the body and then police came and took the injured towards the Civil Hospital. In his cross-examination he said that at that time the bus was being driven by the applicant. From the evidence of the two witnesses on behalf of the defence it appears to be an admitted position that the bus in, question was being driven at the relevant time by the applicant and that as a result of the accident deceased Sher Bahadur received injuries. On the one hand there is the clear evidence of P.W. 1 Badruddin, the traffic constable, that the accident had been caused due to rash and negligent driving of the applicant which resulted in injuries to the deceased and -on the other side there is the version oh behalf of the defence that the bus had stopped and then the deceased himself dashed 'against the bus in question with such force that he received very serious injuries including multiple skull fractures. The version given on behalf of the defence appears to be unbelievable in view of the grievous injuries found on the body of the deceased. The version of the prosecution brought On record through evidence of P.W. 1 Badruddin has been believed by the two Courts below and as observed earlier I find no reason to reject the testimony of P.W. Badruddin. It may also be observed that nothing has been brought on record to show any reason for false implication of the applicant in this case.
(b) The next contention of Mr. Fazlur Rehman's, learned counsel for the applicant, was that at the most the prosecution had established that the accident had taker place but the charge that it was due to rash or negligent driving by the applicant had not been established. I find no force in this contention. Evidence of P.W. Badruddin who was the traffic constable at the relevant time and who witnessed the actual incident is clear on the point that the bus was driven rashly and negligently with high speed and this resulted in the accident causing injuries to the deceased.
Learned counsel for the applicant had relied upon the following reported judgments:-- Mst. Shafiq Begum v. The State 1976 P Cr. L J 356; Noor Khan v. The State 1974 P Cr. L J 56 and Qalam Khan v. The State 1974 P Cr. L J 279.
These 3 judgments were cited by the learned counsel for, the applicant for the proposition that unless the prosecution adduces evidence of rash or negligent driving, conviction under section 304-A, Cr.P.C. Cannot be sustained. In those decisions it was found that the evidence on record had not established that the accused was driving the vehicle in a rash or negligent manner at the time of incident. In the present case, however, there is evidence on record which established hat the accident was caused on account of rash and negligent driving of the applicant and as such the judgments cited by the learned counsel for the applicant are of no avail to the applicant.
(c) Finally it was contended by the learned counsel for the applicant that as no post-mortem of the deceased had taken place in this case, it was not established by the prosecution that the death of deceased Sher Bahadur had been caused on account of injuries received in the said accident. In this case according to the prosecution, the deceased, who had received very serious injuries was taken by P.W. 2 Muhammad Bashir (police constable), who was present at the time the incident had taken place, to Civil Hospital in a rickshaw but there the injured died. P.W. 4 Dr. Saleem (Exh. 6) was working as Medico-legal Officer in Civil Hospital, Karachi on the day of the incident.
According to his evidence, Police Constable Muhammad Bashir Buckle No. 6827 had brought an injured person aged about 65 years with history of road accident. He examined the injured and found various injuries on the body of the deceased. X-ray of his skull was taken according to which X-Ray the deceased had suffered multiple fractures of the skull. According to the opinion of Dr. Saleem the cause of death of deceased was bleeding and shock resulting from multiple fractures of the skull. According to Dr. Saleem injuries were caused by some hard blunt substance. From the evidence of P.W. 1 Badruddin, P.W. Bashir and Dr. Saleem, the prosecution had, established that the death of Sher Bahadur had taken place on account of the injuries received by the deceased in the accident caused by rash and negligent driving by the applicant. In the facts of this case, the evidence on record including the evidence of Dr. Saleem, established that the cause of the death of the deceased was the injuries received in the accident. Failure to conduct post-mortem did not demolish the case of the prosecution.
Mr. Fazalur Rehman's, learned counsel for the applicant had relied upon two reported judgments for the proposition that in case post-mortem is not conducted the cause of death is not established. The first case cited by the learned counsel is Sher Zaman v. The State 1983 PCr.LJ 610. In this reported judgment, post-mortem had taken place but the doctor who had performed the post-mortem was not examined and no reason was given for his non-examination. This is not the case here. The doctor who has examined the body of the deceased appeared as a prosecution witness. He gave his evidence in sufficient detail and he was not cross-examined.
The other judgment relied upon was in .The case of Muhammad Bux v. The State 1976 PCr.LJ 405. In this judgment, it was observed that post-mortem examination had not been carried out and, therefore, it cannot be sufficiently inferred that the death of the deceased was the direct result of the injuries suffered by him as a result of the accident and that post-mortem examination was necessary to bring out the fact that the death had occurred due to injuries received by the deceased on account of the said accident. With respect I may observe that I do not subscribe to the view that unless a post-mortem of the deceased in a case under section 304-A. Cr.P.C., is carried out, exact cause of death cannot be determined. In my view, even in the absence of a post- mortem examination, if the evidence of the doctor had examined the injuries on the person of deceased is on record had from such evidence the exact cause of death of the deceased can be determined, the absence of post-mortem examination in such a case would not be fatal to the case of the prosecution. And as observed earlier, in the present case, the prosecution evidence which includes the evidence of Dr. Saleem has established that the death of victim Sher Bahadur was the result of injuries sustained by him in the accident caused by the applicant.
4. I find no merit in this revision application. Cr. Revision No. 26/86 is dismissed. The applicant is on bail. His bail stands cancelled and he may be taken into custody to serve out the balance sentence.