2018 P Cr. L J 914
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
KHAIR MUHAMMAD SHAH ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 95 of 2016, decided on 25th November, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 320, 279 & 427 ---Qatl -e-Khata, rash driving on public way and mischief causing
damage ---Appreciation of evidence ---Benefit of doubt ---Accused was charged for causing
death of deceased due to rash and negligent driving ---Prosecution case was that accused was
driving oil tanker in a rash and negligent manner, thereby endangering human life and safety
of others and while driving so, he hit the deceased from wrong side and caused his death---Record showed that case was registered on the complaint of uncle of the deceased ---
Admittedly, neither complainant was eye -witness of the occurrence nor he had disclosed his
source of information while lodging the FIR as well as in his statement before court---Complainant reached at the spot when accident had already taken place, as su ch, he had not
seen the accident ---Complainant, in such circumstance could not say that the accident took
place due to negligence and carelessness of accused and deceased was hit from wrong side ---
Nothing was available on record on the basis of which, it c ould be ascertained that the
accident in question was the result of negligence on the part of accused ---Prosecution case
was that the deceased was driving motorcycle at the time of accident, which was fully loaded with stationery articles ---Possibility tha t the accident in question occurred due to negligence
on the part of deceased, could not be ruled out ---Circumstances established that prosecution
failed to prove its case beyond any shadow of doubt, the benefit of which would resolve in favour of accused ---Accused was acquitted by setting aside conviction and sentence recorded
by the Trial Court.
(b) Criminal trial ---
----Benefit of doubt ---Principle ---Prosecution had to prove its case against the accused
beyond doubt ---Accused would be presumed to be innocent until the case was fully proved
against him ---If there was a room for doubt, benefit thereof was to go to the accused.
Khushal v. State 1971 SCMR 357 rel.
(c) Criminal trial ---
----Conviction---Scope ---Conviction could not be awarded merely on the basis of
presumptions, surmises and conjectures.
Wali Muhammad Nasir and Ms. Afshan Memon for Appellant.
Saeed Ahmed Kakar, State counsel.
Date of hearing: 24th November, 2017.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Appellant, Khair Muhammad Shah
son of Gul Badshah, was tried by learned Sessions Judge, Lasbela at Hub in case FIR No. 177
of 2015, dated, June 11, 2015, registered with Police Station Hub on the report of one
Manzoor Hussain, under sections 320, 279 and 427, P.P.C. The appellant after having been found guilty for the alleged offence was convicted and sentenced under section 320, P.P.C. to undergo imprisonment for one year and to pay Diyyat amount to the legal heirs of the deceased Shafi Muhammad son of Muhammad Juman. It was directed by the trial Court that the appellant shall not be released unless and until the amount of Diyyat is paid by him, however, benefit of section 382- B was extended to him.
2. In brief, the case of the prosecution is that on June 11, 2015 at about 10:15 a.m. at
Hub Bridge, within the jurisdiction of police station. Hub, accused Khair Muhammad Shah
was driving Oil Tanker bearing Registration No. P -3272, in a rash and negligent manner,
thereby endangering human life and safety of others and while driving so, he hit one Shafi Muhammad from wrong side and caused his death and thereby the accused committed offence punishable under section 320, P.P.C.
3. Charge sheet was filed in the Court of learned Sessions Judge Lasbela at Hub and
appellant was supplied the relevant documents. Thereafter vide order dated August 12, 2015,
charge under sections 279, 302 and 427, P.P.C. was framed against the appellant to which he pleaded not guilty and claimed trial.
4. The prosecution in support of its case produced as many as five witnesses. PW -1,
Manzoor Hussain, who happened to be the uncle of deceased, is complainant of the case, who
produced his Fard- e-Bayan as Ex. P/1- A. PW -2 Dr. Prem Chand (Medical Officer) has
produced the death certificate of deceased Shafi Mohammad as Ex. P/2 -A. PW -3 Dad Jan is
Motor Vehicle Examiner, who produced his report as Ex. P/3- A. PW -4, Sakhi Dad, A.S.I is
the witness of seizure memos and produced the same as Ex.P/4- B, C and D. He also produced
the Motorcycle KRB -6604, Oil Tanker.P -3272 and Driving Licence of appellant as Art: P/1
to 4 while PW - 5, Attaullah S.I is Investigating Officer of the case, who produced the FIR, as
Ex. P/5 -A. Inquest Report Ex. P/5- B, site sketch. Ex.P/5- C and Challan Ex: P/5- D.
5. After closure of prosecution evidence, statement of appellant under section 342,
Cr.P.C. was recorded, who admitted that he was driving the offending vehicle but stated that he was not driving the same in a rash and negligent manner. He also admitted the accident but submitted that it resulted in the circumstances beyond his control. He has given his own account of the incident. He preferred not to be examined on oath, and also not produced any witness in his defence. The trial culminated in conviction of the appellant.
6. Mr. Wali Khan Nasir, learned co unsel for appellant contended that the accident took
place due to negligence of deceased as he was driving a loaded motorcycle at the time of accident. He has contended that it was a pure and simple accident, which could not have been averted by any human intervention. He has argued that that there is nothing on record, which may establish that accused was driving the offending vehicle in a rash or negligent manner or
that he failed to take reasonable care and precaution expected from a prudent driver. Whil e
concluding his arguments, he further submitted that there is no eye -witness of the alleged
occurrence, which fact has erroneously been ignored by the learned trial Court while
convicting the appellant merely on the basis of surmises and conjectures.
7. On the other hand, Mr. Saeed Ahmed Kakar, learned State Counsel contended that
prosecution has proved its case to the hilt. Appellant has admitted the accident and his said admission, coupled with the evidence on record established the charges against him. He further stated that though there is no direct evidence to establish rash and negligent driving yet the site plan, read in light, the chain of evidence as narrated by the accused and complainant, establishes that accused was driving the offending vehicle in a rash and
negligent manner and the accident was the direct outcome of his said driving.
8. After hearing learned counsel for the parties and having gone through the available
record, I am of the considered view that the prosecution has failed to prove its case against
the appellant beyond the shadow of doubt. The appellant has admitted the accident as well as death of deceased. He has also admitted that he was driving the offending vehicle but stated that he was not driving the same in a rash and negli gent manner. Thus, the only aspect, which
remains to be examined, is whether the appellant was driving the offending vehicle in a rash or negligent manner? In case the answer comes in affirmative then it is to be seen that whether there was any close proxi mity between his rash and negligent driving and the
resultant injuries sustained by the deceased. In order to bring home the charges under section 320, P.P.C., the answer to both the questions must come in affirmative.
9. While examining the case in hand on the touchstone of the above quoted principles,
the case of the prosecution mainly rested upon the sole testimony of complainant Manzoor Hussain. Admittedly, neither he is eye -witness of the occurrence nor he has disclosed his
source of information while lodging the FIR. When he reached on the spot the accident had already taken place. It is very strange and astonishing that when he has not himself seen the accident and was not present at the place of occurrence, then how he could say that the accident too k place due to the negligence and carelessness of appellant and the deceased was
hit from wrong side. He has not disclosed the source of information in the FIR as well as in his Court's statement i.e. the name of person who told him the story. For the sake of
arguments, if any one would have told him, even then his evidence would not have been admissible being hearsay evidence and hearsay evidence could not be considered unless and until it is also stated by that person, who told him that he narrated the st ory to him.
10. The learned State Counsel has argued that all the prosecution witnesses as well as the
appellant have stated that he was driving the offending vehicle at the time of incident and the burial expenditures were also borne by the appellant. Even if the said ar gument is taken to be
correct, still, no presumption about negligence can be raised merely because a person has died in an accident and the burial expenditures were paid by the appellant. There must be some independent evidence to establish that the appell ant was driving the offending vehicle
in a rash or negligent manner. I have also perused the site plan prepared by the investigating officer, which is absolutely vague and it does not come to rescue the prosecution.
11. The prosecution is duty bound to est ablish that appellant was driving the offending
vehicle in a rash and negligent manner. The prosecution must prove rash and negligent
driving by leading independent and cogent evidence. The rash and negligent driving must be exhibited and proved on record. It seems that the learned trial Court, while convicting the
appellant, has drawn wrong conclusion from the statement of complainant regarding the
payment of burial expenditures and forgiving the appellant in the name of Almighty Allah, because it is well settled principle of law that while trying a criminal case, it is the duty of the Court to appraise the evidence strictly according to the legal requirements described by law without being swayed away emotionally for any other extraneous reasons which fall outside
the pale of legal jurisdiction of appraisement evidence. In a criminal jurisprudence, it is invariably the duty of the prosecution to prove the case against the accused beyond doubt and the accused is presumed to be innocent until the case is full y proved against him and in that
process not only if there is a room for doubt, benefit thereof is to go to the accused but if any legal provision, which is to be relied upon in the appraisement of the evidence and it is open to two interpretations, one be neficial to the accused is to be adopted. While holding this view,
I am fortified with the observations made by the Hon'ble Supreme Court in the case of Khushal v. State (1971 SCMR 357), which read as under:
"Where there are two possibilities open upon the evidence the possibility, which is
more favourable to the accused must be accepted, if it otherwise fits in with the facts and circumstances of the case."
12. It is evident from the record that the appellant has shown a good conduct and grace by
financial ly assisting the deceased's family, though
he was not at fault. Such conduct was required to be appreciated; however, the learned trial Court has convicted him while considering it an admission on his part contrary to law. It was the bounden duty of prose cution to prove its case beyond any doubt. The prosecution has to
stand on its own legs and every benefit of doubt will go to the accused. It is well settled
principle of law that surmises and conjectures cannot take place of proof. There is nothing on record on the basis of which it could be ascertained that the accident in question was the result of negligence on the part of appellant. The learned trial Court has simply relied on the statement of complainant that the deceased was hit from wrong side.
13. No doubt, as observed by the learned trial Court, a young man has lost his life in the
instant pathetic episode while leaving behind minor kids, but the occurrence did not appear to be taken place in the manner as alleged by the prosecution. According to t he prosecution's
own case, the deceased was driving a motorcycle at the time of accident, which was fully loaded with stationery articles. In such view of the matter, the possibility that the accident in question occurred due to negligence on the part of deceased, cannot be ruled out. It is the bounden and moral obligation of prosecution to prove its case against the accused person beyond reasonable doubt and the conviction cannot be awarded merely on the basis of presumptions, surmises and conjectures.
14. Keeping in view the above lacunas in the prosecution case, which escaped attention of
the learned trial Court while convicting the appellant, the instant appeal is allowed and the conviction and sentence awarded to the appellant, are set aside, he is acqu itted of the charges.
He is on bail, his bail bonds are discharged from liability.
These are the detailed reasons of my short order dated November 24, 2017.
JK/181/Bal. Appeal allowed.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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