2018 M L D 1567
[Balochistan (Sibi Bench)]
Before Abdullah Baloch, J
GULZAR---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(s) 77 of 2017, decided on 19th January, 2018.
Penal Code (XLV of 1860) ---
----Ss. 320 & 279---Qatl -i-khata by rash or negligent driving, rash driving or riding on public
way---Appreciation of evidence ---Prosecution case was that rash and speedy vehicle driven
by the accused, hit the father of complainant, due to which he fell do wn and got injured---FIR
was lodged under Ss.337- G & 279, P.P.C., but subsequently, the injured succumbed to
injuries and died, hence S.337- G, P.P.C. was converted into S.320, P.P.C. ---Ocular account
of the incident was furnished by the witnesses including complainant ---Complainant
appeared as witness and narrated the story with regard to the occurrence taken place in front
of his shop and also mentioned the presence of eye -witness in his shop--- Both the said
witnesses had confirmed the occurrence in front of the shop---Record showed that both the
said witnesses resiled from their earlier depositions and were declared hostile, but the fact remained that both the witnesses in their depositions stated that the deceased was hit by a vehicle---Police arrested th e accused from the place of occurrence soon after the commission
of crime along with the vehicle ---Accused was nominated in the FIR lodged promptly by the
complainant ---Said circumstances suggested that accused was the real culprit who hit the
father of th e complainant ---Death certificate of the deceased was suggestive of the fact that
the deceased had died due to unnatural death--- Mere resiling of the star witnesses was not
enough to discharge the accused from the commission of crime ---From facts and
circu mstances of the case it appeared that the complainant might have compromised with the
accused out of the court and in order to save the accused from the payment of Diyat amount he had made a false statement to deprive the minor as well as the women legal h eirs from
receiving their share of Diyat amount ---Circumstances established that prosecution had
succeeded in establishing the charge against the accused through consistent and confidence inspiring evidence ---Appeal was dismissed in circumstances.
Rizwan Ali Soomro for Appellant.
Abdul Mateen D.P.G. for the State.
Date of hearing: 28th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.(s)77
of 2017, filed by the appellant Gulzar son of Qurban, against the judgm ent dated 29th April
2017 (hereinafter referred as "the impugned judgment") passed by the learned Additional
Sessions Judge Naseerabad at Dra Murad Jamali (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 320, P.P.C. and sentenced to pay Diyat amount of Rs.16,80,320/ - to be paid to the legal heirs of deceased and the same be dealt with
what the section 331, P.P.C. provides in case of non- payment of Diyat and in case of default
the appellant he kept in jail till realization of Diyat amount and even in case of death prior to payment of Diyat amount, it shall be recovered from his estate under section 279, P.P.C. to suffer two years R.I. with fine of Rs.2000/ - or in default thereof to further suffer two months'
S.I. with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 16th October 2016, the complainant Ghous Bakhsh son of
Shaoo, lodged FIR No.36 of 2016 at Police Station Khan Kot under sections 337- G, 279,
P.P.C. stating therein he has a Retail Shop near Baboo Amin Dip. As usual he was present in
his shop along with his relative Afzal Khan, when at about 11.30 p.m. his father namely Shah
Bakhsh alias Shahoo son of Waziran was coming towards his shop to give lunch, when he
reached near his shop t hen from back side of him a rash and speedy Datsun vehicle hearing
Registration No.AL -0019 Jacobabad hit his father, due to which he fell down and got injured.
The driver was overcome by nearby police personnel and on query he disclosed his name
Gulzar son of Qurban, caste Manganhar, whereafter his father was shifted to hospital. Hence
FIR was lodged under sections 337- G, 279, P.P.C., but subsequently the injured succumbed
to his injuries and died, hence section 337- G, P.P.C. was converted into section 320, P.P.C.
3. In pursuance of the above FIR, investigation was entrusted to PW -6 Ghazanfar Ali.
ASI/IO, who during investigation visited the place of occurrence and prepared site sketch;
recorded the statements of witnesses under section 161, Cr.P.C.; took into possession the
Datsun vehicle and arrested the appellant at the spot; took into possession the blood- stained
clothes of deceased and on completion of investigation, submitted the challan in the trial Court. Since, the injured was referred to Hospital at Larkana for further treatment, where
during treatment he succumbed to his injuries, thus his death certificate was obtained and submitted in the Court by PW -7 Hazar Khan IP/2nd I.O. through supplementary challan.
4. At the trial, the prosecution prosecuti on produced seven (07) witnesses, whereafter;
the appellant was examined under section 342, Cr.P.C. The appellant did not record his statement on oath under section 340(2), Cr.P.C. and also, not produced any witness in his defence. On conclusion of trial a nd after hearing arguments, the trial Court awarded
conviction to the appellant as mentioned in para -1 above. Whereafter instant appeal has been
filed.
5. Learned counsel for the appellant stated that the prosecution has failed to substantiate
the charge a gainst the appellant beyond any shadow of doubt as the star witnesses of the
prosecution i.e. the complainant as well as the eye -witness did not support the case of
prosecution and were declared as hostile, thus the entire case of prosecution is doubtful a nd
no conviction can be granted on the basis of shaky evidence or it can be maintained, but the learned trial Court has convicted and sentenced the appellant in the manner, which is perverse and contrary to material available on record; that the case of pr osecution is full of doubts, but
the appellant has been deprived from getting the benefits of such doubts.
6. Learned D.P.G. while supporting the impugned judgment stated that the prosecution
through consistent and confidence inspiring evidence has proved the charge against the appellant beyond any shadow of doubt: that the prosecution evidence is not suffering from
material contradictions, infirmities or dishonest improvements.
7. Heard the learned counsel and perused the available record. The prosecution in order
to establish the charge has produced the evidence of seven witnesses, whereas the appellant
has failed to produce any single witness in his defence. The complainant of the case appeared as PW -1, who narrated the story with regard to occurrence taken place in front of his shop
and he also mentioned the presence of PW -5 Azal Khan in his shop. Both the witnesses
confirmed the occurrence in front of the shop. whereby a pick- up Datsun hit the father of
PW-1, who was initially injured and was referred to Larkana for further medical treatment,
but during the course of such treatment he succumbed to his injuries and died. Though both the witnesses resiled from their earlier deposition and were declared as hostile, but the fact remains is that both the witne sses in their deposition brought on record that the deceased was
hit by a pick -up Datsun. The police arrested the appellant from the place of occurrence and
also took into possession the Datsun that hit the deceased bearing Registration No.AL -0019
Jacobabad. Throughout the trial the appellant has never disowned the said pick- up rather
during examination under section 342, Cr.P.C. in reply to the Question No.3 the appellant has admitted that the vehicle Datsun bearing Registration No.Al- 0019 is owned by him. Even in
reply to Question No.2 he also admitted that he is the last possessor of the said pick- up
Datsun.
8. The arrest of the appellant soon after the commission of crime along with the Pickup
Datsun bearing Registration No.AL -0019 coupled with the fact that he was nominated in the
FIR that was lodged promptly on the complaint of the PW -1, are suggestive of the fact that
accused the appellant was/is the culprit that hit the deceased father of the complainant with
his vehicle and due to which initially he was seriously injured. but during his treatment at
Larkana he succumbed to his injuries. The Death Certificate produced by PW -7 is also
suggestive of the fact that the deceased had died due to unnatural death. However, during examination in chief both the star witnesses i.e. PW -1 and PW -5 were resiled from their
earlier depositions and thus were declared as hostile, thus mere resiling of the star witnesses is not enough to discharge the appellant from the commission of crime and it appears that the complain ant may have arrived in compromise with the appellant outside the Court and in
order to save the appellant from the payment of Diyat amount has made a false statement. Mere resiling of the star witnesses are also not enough to acquit the appellant of the c harge
and in this technical manner to deprive the minor legal heirs as well as the women legal heirs from receiving their share of Diyat amount.
9. The prosecution has succeeded in establish the charge against the appellant through
consistent and confidenc e inspiring evidence and the learned trial Court while awarding the
impugned judgment has rightly dilated upon all the facts and circumstances of th case and the learned counsel for the appellant has failed to point out any legal defect or illegality in th e
impugned judgment warranting interference by this Court.
For the above reasons, the appeal being devoid of merits is hereby dismissed.
JK/8/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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