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Criminal Revision No. 314 of 1970, decided on 14th April, 1985.

‑‑‑S. 304‑A‑‑Rash and negligent driving‑‑Bus of accused colliding with cycle of deceased and causing death of deceased‑‑Companion of deceased falling down from carrier of cycle but remaining safe‑‑Two eye‑witnesses stating that bus was being driven at a speed of about 30‑35 miles‑‑One prosecution witness admitting that bus sounded its horn before accident‑‑Defence version that deceased's cycle got out of control after prosecution witness who was sitting on carrier jumped off the carrier, and swerved into path and of bus‑‑Getting support from totality of evidence and as such appearing to be reasonably probable‑‑Accused acquitted in circumstances.

Ch. M. Z. Khalil for Petitioner.

J.V. Gardner, for A.‑G. for the State.

Date of hearing: 10th April, 1985.

This is a revision petition filed by Arshad Hussain, petitioner, against the judgment of an Additional Sessions Judge of Lahore, dated 4‑3‑1970, dismissing his appeal. Earlier, a First Class Magistrate of Lahore, by his judgment, dated 31‑1‑1967, had convicted the petitioner under section 304‑A, P.P.C. and sentenced him to two years' rigorous imprisonment with a fine of Rs.500 or in default thereof to undergo further rigorous imprisonment for six months.

2. The case of the prosecution is that on 10‑2‑1965 the deceased Chhanga was going on Ferozepur road towards Kahna from Lahore side and Ghulam Muhammad P.W.5 was sitting behind him on the carrier of his cycle. Near the Glaxo Factory, a bus No.299‑LEC of Lahore Transport Society, which was being driven by Arahad Hussain, petitioner came from the Lahore side. The bus collided with the cycle of the deceased and as a result thereof Ghulam Muhammad P.W.5 fell down from the carrier on the Katcha side of the road. The deceased Chhanga was run over by the bus and his body was dragged for some distance on the road. The deceased was taken to the hospital, where he died and the petitioner was consequently challaned by the police for the offence.

3. I have heard the arguments of the learned counsel for the petitioner and the State and have perused the record. The eye‑witnesses of the occurrence are Taj Din P.W.1, Niaz Ali P.W.2, Subhan Khan P.W.3 and Ghulam Muhammad P.W.5. Taj Din P.W.1 and Niaz al' P .W.2 admit that the bus was being driven at a speed of about 30‑35 miles per hour. Both these witnesses and Subhan Khan P.W.3 also admit that Ghulam Muhammad P.W.5 jumped off from the carrier of the deceased's cycle, just before the accident. In this connection, Taj Din P.W.1 stated that when Ghulam Muhammad P.W.5 jumped off, the cycle got a jerk, whereas Subhan Khan P.W.3 states that the cycle got out of control and swerved to the right, whereupon the deceased lost his balance and the cycle came in the line of the motion of the bus and was run over. Ghulam Muhammad P.W.5, however, has denied having jumped off from the carrier of the deceased's cycle, on hearing the horn of the bus. According to him, he fell down from the carrier, after the bus hit the deceased's cycle, whereafter he fainted. Subhan Khan P.W.3 also admits that the bus sounded its horn before the accident. From the totality of the evidence, the case of the petitioner, namely, that the deceased's cycle got out of control, after Ghulam Muhammad P.W.5 jumped off his carrier, and swerved into the path and of the bus, appears to be reasonably probable. In these circum stances, the petitioner is entitled to the benefit of doubt.

4. For the foregoing reasons, this petition is accepted and the conviction and sentence of Arshad Hussain, petitioner are set aside. The petitioner is on bail. His bail bond shall stand discharged.

M. A. K.

Petition accepted.

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