1. This revision application has been filed against the judgment dated 24-1-1973 passed by the Sessions Judge, Karachi, whereby he dismissed the appeal against the sentence of conviction under section 30 I-A P. P. C. Passed against the appellant by S. D. M. Old Town, but had reduced the sentence from that of R. I. For four years and fine of Rs. 5,000 or in default whereof R. I. For one year, to a sentence of R. I. For two years and a fine of Rs. 1,000 or in default to suffer R. I. For three months.
2. Not being satisfied with this modification, the appellant has come before this Court in revision which will be disposed of by this judgment.
2. The facts of the case are that on 3-1-1969, the applicant was driving a passenger bus No. K A U- 9763 on route No. 4-J from Liaquatabad to New Karachi. Mohammad Ashraf, deceased, was the conductor of this bus. It appears that when the bus stopped at Punkhawala bus stop some of the passengers got down, whereafter the conductor deceased Mohammad Ashraf was standing at the foot board of the ladies gate. As the bus re-started there was a jerk which is attributed to the applicant's starting the bus suddenly. On this account, deceased Mohammad Ashraf, the conductor of the bus, fell down from the foot board and on the cries raised by the passengers in the bus the applicant stopped the bus at a distance of about a furlong and a half from the place where the deceased had fallen. The deceased was later on removed to the hospital where his medical examination revealed that he had the following injuries on his person:--- "(1) Haemtoma left forehead 1'x 1'.
(2) Lacerated wound left occipital bone -- ' x --' skin deep.
(3) Abrasion left hand --' x --'.
(4) Abrasion on back of l amber region 2'x 1'.
3. He later on died in the hospital and the cause of his death was found to be due to shock caused by intracranial haemorrhage caused by the head injury. A message from the hospital was sent to the police out-post, New Karachi, where witness Abdul Hamid had also reached by a rickshaw. The applicant was sent up for his trial after necessary investigation made by the police which included preparation of the sketch of place of occurrence and also inspection of the vehicle that was driven by the applicant. According to the technical expert the bus that was being driven by the applicant, at that time had a defective steering, as there was a play in its upper bearing. The prosecution examined one witness Abdul Hamid, who had been the passenger in the bus and whose evidence was the most relevant for the purpose of proving the offence. The other witnesses were the Investigating officer, the medical officer, the motor vehicle inspector and the mashirs. According to the eye-witness Abdul Hamid, the deceased who was standing at the foot-board of the ladies gate fell down as the applicant drove the bus all of a sudden with a jerk. He also said that between the seat of the applicant and the gate there were standing ladies. In his cross-examination he admitted that he had not stated in the police statement that the applicant drove the bus all of a sudden when he started the bus from the above stop. He also said that the conductor i.e. Deceased Mohammad Ashraf felt down at about 10 paces after the bus started from the stop. No other passenger from the bus has been examined by the prosecution, but the applicant who denied to have been rash or negligent in his driving or in starting the bus from the bus stop as alleged against him, examined witnesses Mohammad Yousuf and Khalilur Rehman in his defence.
4. These two witnesses were also passengers in the same bus. According to Mohammad Yousuf some boys had started stoning the bus in New Karachi as it was a day of strike. The conductor of the bus, deceased Mohammad Ashraf, who was standing at the foot-board all of a sudden slipped and fell down. According to him, he was sitting just behind the ladies seat when there were 20 to 25 ladies present in the bus out of which 10 to 12 were standing. According to other witness Khalilur Rehman, he saw the conductor losing his balance at the ladies gate foot-board at the time when he was distributing tickets. His hand slipped from the rod handle of the bus and he fell down on the ground. Admittedly after the bus was stopped the applicant and others had taken the deceased in the same bus to the Civil Hospital. The learned Sessions Judge while fully agreeing with the findings of the Court below and finding no substance in the appeal had still reduced the sentence by saying:--- " I however felt that looking to the circumstances of the case, the sentence is rather severe."
5. From the judgment, however, the circumstances which have led the Sessions Judge to this modification are not made apparent.
3. I heard the learned counsel for the applicant as well as the learned Assistant Advocate-General for the State. The learned Asstt. A. G. Does not support the conviction in this case and in my opinion rightly so. The conviction under section 304-A can be recorded only when it can be positively shown by evidence that the applicant has been rash and negligent in the performance of the act which in the direct cause of the result i.e. Death of any person. In a case where such a link between the act and the death of the person could not be shown to exist, the accused would always be entitled to the benefit of doubt. The reasoning given by the Trial Court of the use of the clutch as well as of the brake of the bus by the applicant is not understandable as in fact there is no evidence to that effect on the record. It appears that he has given this technical opinion without any basis which cannot be accepted. Surprisingly enough in the present case the learned Sessions Judge has gone on to remark:- "In ordinary course of business the driver starts the bus after he gets the signal from the conductor.
6. There is no evidence or even a suggestion that the conductor had given a signal to the accused to start the bus."
7. Apparently the lower Appellate Court indicated that this aspect of the case should have been pointed out if not proved by the applicant, but I would like to think that if this is the ordinary course of business than unless the prosecution was able to show that the applicant bad violated the normal procedure, he would not be disentitled from being given the benefit to which he is otherwise entitled. It was laid down in the case of Muhammad Yaqoob Rathore v. The State, reported in 1968 P. Cr. L. J. Page 1438: "it would be seen that the law requires that the prosecution must con--clusively establish by direct evidence that the accused was rash and negligent."
8. I find no reason to disagree with this proposition of law and I also find that there is nothing in the form of evidence on the record of this case from which it could be conclusively said that the applicant was in any manner directly responsible for the fall that the deceased Muhammad Ashraf had from the foot-board of the bus where he was standing as a conductor. This revision application is, therefore, allowed and the conviction and sentence passed against trim is set aside.