On the 14th of September, 1969 at about 7-30 p.m; a taxi ran over a child named Arif son of Muhammad who was about 8, and injured him. The child died subsequently and as a result case under section 304-A was registered and investigated. The applicant in this case, alleged to he the driver of the taxi in question, was convicted by the learned Additional City Magistrate XXVIII, Karachi of the offence, under that section and sentenced to two years' R.
1. And a fine or Rs. 1,000 or in default of payment thereof further R. I. For six months. An appeal to the Court of Session seas unsuccessful being dismissed by the learned 1st Additional Sessions Judge Mr. Ahmad A.I Qureshi who maintained both the convictions and the sentence imposed by the Magistrate's Court. The matter has now come up in revision before me.
2. The child was brought to the hospital by P.W. 3, Raja Ibrahim who is described at one place as the father and at another as the grand--father of the child. It is clear, however, that he is a grand father since the child's father's name is given as Mohammad and the witness is about 70 years old.
The exact relationship is really not material in the case but quite clearly the probability is that the witness is the grand-father and not the father. From the Civil Hospital a telephonic message was sent by the Casualty Medical Officer, Dr. Ashfaq, who is P. W. 5 in the case and who examined the child while he was still alive. This telephone message was taken down and is Exh. 7A in the case. It has, however, not been treated as an F. I. R. And what is described on the record as F. I. R. Is Exh. 7D which is lodged by H. C. Wali Mohammad who is the prosecution witness but after the entire investigation was over. Whether or not the earlier recorded message can be treated as an F. I. R. It is quite clear I think that what has in fact been treated as an F. I. R, is not one which can be legally so regarded. The point would mot be material except for an important circumstance upon which in my opinion the decision of this case roust turn. The telephone message not only does not mention the name or description of the driver of the taxi but not even the number of it. What is more, it says in express terms that the number is not known. It is not merely that there is a lack of mention of the number of the taxi in this report. It is to be remembered that the witness Raja Ibrahim was at the Civil Hospital when the telephone message was sent and if, therefore, he knew the number or at least if he had told it to the doctor one would expect the number to be mentioned in this report. The fact, however, that instead a categorical statement is made that the number of the taxi is not known would lead to the inference that it could not be ascertained and that Raja Ibrahim did not know of the number.
3. Raja Ibrahim was not himself an eye-witness and the two persons whom the prosecution put forward as eye-witnesses are P. Ws. 1 and 2 named Abdul Majid and Allauddin respectively. Of these the second does not support the prosecution at all. He states that he had never seen the applicant before. He was declared hostile and permission to cross-examine him was accorded by the Court but I cannot see that it has resulted in anything substantial. Even if it had and if matter had come can the record of this case to justify the finding that the witness was lying it would certainly discredit the witness himself and, if the other evidence was sufficient to sustain a conviction, it would deprive the evidence of Allauddin of any such probative value as would suffice to exonerate the applicant. But in itself it does not advance the prosecution case, however its worth might be assessed.
4. The other witness Abdul Majid does indeed support the prosecution case and states that the applicant was the person who was driving the taxi in question on that day. The applicant was not known to the witness before and it is admitted that no identification test of any kind was held. As I have already pointed out the number of the taxi was not known and it does not, therefore, appear as to how the police, was able to fix either upon the taxi in question which is stated now to be numbered KAX 5000 or upon the applicant as the person who drove it on the occasion. In the so- called F. I. R. It is stated that the number of the taxi was noted but this I cannot really believe in view of what I have already stated as to the contents of the record of the telephonic message.
5. The prosecution have offered no evidence whatever as to how this taxi was traced. There is no other evidence which would connect the taxi with the incident. It is true that there is a report of the Motor Vehicles Inspector to the effect that the taxi had some dents in it and that these are described in his report as Dent Marks; they consisted of the body boot being pressed in about a -- ' and scratch on the front right side of the bonnet. The Motor Vehicles Inspector, however, does not say that these were necessarily caused by such an accident as has been described. He of course does say that it is possible that they were so caused but is unable to say how long ago the damage must have occurred. These marks are slight in character and as learned counsel argues that there would be few cars in Karachi which would not have some slight damage of this kind upon them. But even if the damage was more serious that by itself would be no proof whatever that the taxi was involved in the present incident. To establish that more is necessary. In these circumstances there might have been evidence of the paint of the car being scratched off end similarly composed paint, being found on the body or clothes of the deceased. No such evidence nor any other which would so connect the taxi was available or at least produced.
6. In these circumstances it is difficult tea say horn the police traced the present taxi at all. There is moreover no evidence and this could surely have been easily available, if true--that the applicant was the usual driver of this taxi. Admittedly there was no identification parade.
7. In these circumstances I cannot agree with the Courts below that there was any evidence worthy of reliance which could establish the identity of the applicant as the person who was driving the ear at the time of the accident. It is true that the so-called F. I. R. Does now mention that the number of the taxi was noted but, quite apart from the question whether this document is admissible. I have already stated my reasons for being unable to accept its correctness. I have, therefore, come to the conclusion that the conviction in this case cannot be sustained.
8. There were other questions argued before me by learned counsel which would themselves be important. For instance, Dr. Ishfaq Hussain whom I have mentioned already saw the child only when he eras alive; another doctor Basharat A.I was examined but he produced only the case sheet written by one Dr. Athar Siddiqui. There was no evidence there whatever that this latter doctor was not available and I cannot, therefore, see how those notes of Die Siddiqui which Dr. Basharat A.I produced scan be regarded as admissible. There was legally, therefore, no evidence that the child died as a result of the injuries in question. Indeed learned counsel for the applicant argues before me that the death was not due to these injuries but I do riot think that in view of the finding which I have reached It is necessary to examine this contention.
9. I cannot help remarking that the entire case has been handled by the Prosecutor without any reasonable care or effort to bring the proper evidence on record. It is not impossible that during the investigation some clue did in fact lead to the taxi in question and, therefore, to the driver. If that was so then the proper evidence should have been examined and might well have been accepted.
As it is the effort was not even made and it appears to be taken for granted that in an accident case the identity of the accused as the person who drove the vehicle in question is self proved. I am unable to accept this view of the matter and if in such cases the prosecution desires to sustain a conviction it is their duty to place before the Courts the proper evidence which would sustain the conviction.
10. After the hearing of this case was over I announced that the application for revision would be allowed arid the conviction and sentence Pet aside though 1 did not state my reasons. The above is the record of the reasons which induced me to deliver that judgments.