This is an application in revision under section 435 read with section 439, Cr. P. C. By Sardar Hussain who was originally convicted under sec--petition 304-A, P. P. C. By the learned A. C. M. No. 20, Karachi and sentenced to one year R.I. And to pay a fine of Rs. 500 or in default thereof to suffer three months more R.I. He preferred an appeal to the Court of Sessions, Karachi which was decided by the Third Additional Sessions Judge and it failed and hence the present revision petition.
2. The relevant facts of the case briefly are these. The incident in this case took place on h-5-1963 at 3 p.m. Abdul Saleem (P. W. 1) is a building contractor for about 4 or 5 years before he gave evidence in the trial Court. The deceased Suleman, victim of this case, was known to him and he was working as a Chowkidar with the former at Saddar in front of United Bakery where construction work of P. W. Abdul Saleem was going on. On the day of the occurrence at about 3 p.m. P. W. Abdul Saleem was standing in front of United Bakery in Saddar. His deceased Chowkidar Suleman at that time was seen by him crossing the road from the opposite direction and was coming towards him.
One motor-rickshaw bearing No. KAT 4215, said to be driven by the present applicant Sardar Hussain, carne from Cantonment Station side with very fast speed and, according to this witness P.
W. Saleem it overtook a donkey cart and dashed against deceased Suleman who bad crossed major portion of the road and was only four paces away from the footpath towards the United Bakery. The rickshaw knocked down deceased Suleman and he fell near the footpath and the rickshaw went ahead where it dashed against another rickshaw which was coming from opposite direction, and this rickshaw bore No. KAT 4237 and it was driven by Iftikharuddin (P. W. 9). Deceased Suleman fell down unconscious and was removed to Jinnah Hospital in the rickshaw of P. W.
Iftikharuddin but he succumbed to the injuries on the way. One Dr. Izharul Haq (P. W. 6) had examined deceased Suleman at the Jinnah Central Hospital when he was brought there in the Casualty Department and found the deceased dead, so he sent the dead body to the Mortuary for post---mortem examination. Thereafter, this doctor telephoned the Artillery police station about the death of the deceased due to the accident of motor-rickshaw. This telephonic message was received by S. I. P. Muhammad Munir (P. W. 12) of the Artillery Maidan police station at about 3-50 p.m. He then recorded such a report of the accident at Serial No. 39 of the same date in the Station Diary, copy of which he has produced as Exh. 12/A. Thereafter, he proceeded to Jinnah Central Hospital for enquiries. He found the dead body of deceased Suleman in the Mortuary of the Hospital and prepared its memo. Exh. 3/A in presence of the mashirs. He also prepared inquest report of the dead body which has been produced as Exh. 3/B which too was attested by the same mashirs. He then sent the dead body of deceased Suleman through foot constable Mohammad Anwar (P. W. 7) to Civil Hospital for post-mortem examination with a letter for that purpose which he produced as Exh. 12/2. Subsequently, he proceeded to the scene of the incident and prepared site inspection memo in presence of the witnesses which is Exh. 2/A on record. He also prepared a sketch of the scene in his own hand which bears his signature and has been produced as Exh. 12/B.
He then recorded the statement of certain witnesses and also prepared inspection memo. Of both motor-rickshaws bearing Nos. KAT 4215 and KAT 4237. This inspection memo. Is Exh. 2/B on record.
The S.I.P. Then got both the rickshaws examined by Motor Vehicle Inspector, namely Wali Muhammad (P. W. 8) on the same day. He got the case registered and has produced the F. I. R. Of it as Exh. 12/4. He arrested the present applicant Sardar Hussain and handed over the case papers to S. H. O. Mukhtar Ahmed (P. W. 10) who ultimately challaned the applicant to the trial Court where the latter took his trial with the result already mentioned above.
3. The applicant, in his statement under section 342, Cr. P. C., has denied his guilt and professed his innocence. He asserted that the deceased Suleman was not hit by his rickshaw with which there was no collision of his. As to the question why the P. Ws. Deposed against him, he stated that they were police witnesses. He then said that rickshaw No. KAT 4237-that means another motor rickshaw had collided with the deceased and the public had stopped that rickshaw according to him. He then, as he says, removed the injured. Thereafter, he went to the Thana for reporting the matter where he saw the whole state of affairs changed. In other words he had not collided with the deceased but rickshaw No. KAT 4237 had owner of which had already reached the police station before he had reached there. Thus, according to the applicant, he was innocent and the death of the deceased had resulted on account of his collision with another motor-rickshaw which bore No. KAT 4237.
4. The applicant has examined two witnesses in defence who are Nasim A.I (D. W. 1) and Abdul Qayyum (D. W. 2).
5. The fact that the deceased Suleman died on account of traffic accident does not --- admit of any doubt as Dr. Muhammad Umer Khan (P. W. 4) after his death has conducted post-mortem examination on the dead body of this deceased. He found the following external injuries on the dead boy:-
(i) Paint bruise and swelling of left occipital region.
(ii) Two abrasions on the right knee 2" x 1" x 1" x --".
6. On the internal examination of the body he found as follows:-- "'V' shaped fracture on occipital region on the posterior side, in the middle, the limbs of 'V' 2" long.
Extra dural haemorrhage inside the skull present."
7. In the opinion of the doctor, the cause of death was the fracture of skull and intracranial haemorrhage. The weapon, according to him, with which the death bad resulted was hard blunt and could be due to traffic accident. The doctor was not cross-examined by the applicant- accused hence his evidence has to be accepted as true as he has no reason to speak a lie. I, therefore, find from the medical evidence that the deceased Suleman had died due to receiving injuries on account of the accident in the traffic.
8. According to the prosecution, five witnesses had seen the occurrence who are Abdul Saleem (P.
W. 1) employer of the deceased, Shahbaz Khan (P. W. 2), Noor Alam (P. W. 3), Saifuddin (P. W. 5) and Iftikharuddin (P. W. 9) who is the driver of the other motor-rickshaw No. K. A. T. 4237, which according to the applicant, had caused with its collision the death of the deceased.
9. P. Ws. Abdul Saleem and Shahbaz Khan have supported the prosecution and put the blame on the present applicant who according to them, was driving rickshaw No. K. A. T. 4215 with the collision of which the deceased land died. They are also clear in their evidence that this rickshaw after the collision had dashed against other motor-rickshaw bearing No. K. A. T. 4237. According to both these witnesses, the applicant was coming from the Saddar Station side in a fast speed and had overtaken a donkey cart when at that time the deceased was crossing the road and as result of this overtaking by the applicant, his rickshaw collided against the deceased who subsequently died. On these last mentioned facts both these witnesses have been contradicted with their police statements in which they have not stated this fact, therefore, this fact has to be kept out of considera--petition. Had it been true they would have mentioned it in their police statement as it was an important and material fact to be brought to the notice of the police.
10. Then there are the two witnesses P. Ws. Noor Alam and Saifuddin who both did not support the prosecution and showed the present applicant as an innocent person and both these witnesses were declared hostile by the P. S. I, who handled the prosecution side. Their evidence, therefore, is to be ruled out of consideration and cannot be taken into account either in favour of the applicant or in that of the prosecution. Then there is the evidence of P. W. Iftikharuddin, the driver of motor- rickshaw No. K. A; T. 4237. This rickshaw driver has said that it was the rickshaw of the applicant which had collided against the deceased Suleman after which applicant's rickshaw collided against his own rickshaw and it was he who had taken the deceased to the hospital. But as this witness himself is being involved as an accused person by the applicant his evidence has to be approached with great caution and care and unless it is corroborated sufficiently by other independent evidence, I am of the opinion, it ought not to be relied upon in all its material particulars. So that the position of the prosecution evidence is that three witnesses that is P. Ws.
Abdul Saleem, Shahbaz Khan and the rickshaw driver of K. A. T. 4237, namely Iftikharuddin support the prosecution. As against this there is the word of the applicant denying his guilt and his two defence witnesses have also supported him. His first defence witness Nasim A.I has substantially deposed that he stood at Hussaini Chowk about 1-- years before he gave evidence in the Court, waiting to go to Cantonment Station. He saw rickshaw K A. T. 4237 (that is not the rickshaw of the applicant but that of P. W. Iftikharuddin) coming from Saddar bound for Cantonment Station and knocked down a man dragging him to some distance and then collided with four seaters rickshaw K. A. T. 4215 which is of the applicant. According to this witness, the applicant/accused was driving rickshaw No. K. A. T. 4215. The windscreen of K. A. T. 4215 was smashed. As a result of the collision, the injured was knocked down by the rickshaw of the applicant. One Saleem and this witness Nasim A.I took the injured to the hospital in the rickshaw of the applicant. The doctor examined the injured and declared him dead and sent the dead body to mortuary. This witness, P. W. Saleem and the applicant/accused then went to the police nation where information had already reached on telephone and police had come to hospital and brought them to the police station. In the cross- examination, this witness's testimony in the examination-in-chief has not been shaken at all by the learned prosecutor.
11. Next evidence in defence is that of Abdul Qayyum who deposed substantially that he stood at Hussaini Chowk at the Lassi shop about two years before he gave evidence at the trial at 2-30 p .m.
When he saw four --seater rickshaw coming from Saddar bearing No. K. A, T. 4237, which knocked downs a man and dragged him at some distance till it stopped against another rickshaw with which it dashed that came from Cantonment side. He then stated that the driver of K. A. T. 4237 who knocked the man down was not the applicant present in the trial Court. Thus, according to him, the applicant/accused present in the trial Court was driving the other rickshaw that came from Cantonment side. So that this defence witness also exonerates the applicant and says that his rickshaw (lid not collide with the deceased Suleman and that it was the other rickshaw which had collided with the deceased. His evidence clearly shows that it was not the applicant's rickshaw which knocked down the deceased. This defence witness has also not been shakened in his cross- examination by the P. S. I. Who conducted the prosecution. I, therefore, find that the defence evidence of the above two witnesses is also believable.
12. Thus, in view of the above discussion of the evidence there appear to be two versions on record, one exonerating the applicant/accused person from the crime and the other implicating him, as versions of both sides seem to be quite reasonably probable and possible. In these circumstances, therefore, the well-known principle of law is that the version in favour of the accused person should be accepted and he should be given the benefit of the doubt. Accordingly, I would acquit the applicant by giving him the benefit of the doubt.
13. For the foregoing reasons, the revision application of the applicant is allowed and he is acquitted. His conviction and sentence are set aside. He is on bail and his bail bonds shall stand discharged.