2020 P Cr. L J 688
[Balochistan]
Before Abdul Hameed Baloch, J
MUHAMMAD RAFIQUE ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 94 of 2016, decided on 23rd September, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 279, 337 -G & 427 ---Qatl -i-amd, rash driving or riding on a public way, hurt
by rash and negligent driving, mischief causing damage to the amount of fifty rupees ---
Appreciation of evidence ---Benefit of doubt ---Prosecution case was that a coach and a tanker
vehicle had met with an accident, due to which seven passengers of the coach died on the
spot and eleven were injured ---Allegedly, appellant was driving the coach/bus and due to his
rash and negligent driving, coach/bus collided with oil ta nker resultantly, seven passengers
were died on the spot and eleven sustained injuries ---Record transpired that there was only
one eye -witness, who stated that he was driving oil tanker when incident had taken place ---
Prosecution recorded the statement of said witness under S. 161, Cr.P.C. where he stated that
oil tanker had been driven by his senior while in the Trial Court stated that he himself was driving oil tanker at the time of incident--- Said witness made dishonest improvement in his
statement--- Statement of eye- witness was recorded by Investigating Officer on the spot at 5/6
p.m. while Investigating Officer remained at the place of occurrence till about 06:00 p.m.---Record transpired that FIR was lodged at 10:45 p.m. (night) which meant that investi gation
had been conducted prior to registration of FIR which was not permissible under the law ---
Record transpired that collided bus had not been examined by the vehicle inspector nor statement of analyst was recorded in that regard to ascertain whether in cident had taken place
by over -speeding or mechanical fault ---Prosecution was bound to prove over -speeding or that
the driver was guilty of driving rashly and negligently, but no such evidence was available on the record---Mere driving vehicle on high spee d did not constitute offence ---No evidence
was available on record to show that at what speed the driver was driving the bus ---
Although, appellant in his statement under S. 342, Cr.P.C. admitted that he was driving the vehicle, but denied rashly or neglige ntly---Statement of accused/appellant under S. 342,
Cr.P.C., could be taken in toto not in peace meal ---Prosecution must prove his case with
cogent, confidence inspiring evidence that the appellant was driving negligently, which was lacking ---Appeal was al lowed and accused was acquitted by setting aside conviction and
sentences recorded by the Trial Court, in circumstances.
2019 PCr.LJ Note 55 and 2018 PCr.LJ Note 37 ref.
Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Khair Muhammad
Shah v. The State 2018 PCr.LJ 914 rel.
(b) Criminal trial ---
----Witness ---Improvement made by witness in his statement ---Effect ---If a witness made
dishonest improvement his statement could not be believed.
Ayub Masih v. The State PLD 2002 SC 1048 rel.
(c) Crim inal trial---
----Benefit of doubt ---Principle ---If there was any room for doubt, benefit would go to
accused.
Ayub Masih v. The State PLD 2002 SC 1048 rel.
Abdul Basit and Habib- ur-Rehman for Applicant.
Habibullah Gul, Additional P.- G. for the State.
Date of hearing: 20th September, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This Criminal Appeal No.94 of 2016 has been
filed by the appellant Muhammad Rafique son of Malang Baloch, against the judgment dated
04th November 2016 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge Khuzdar (hereinafter referred as, "the learned trial Court"), whereby the appellant was convicted under section 302, P.P.C. and sentenced to suffer five years' R.I and to pay amount of Diyat of Rs.1,680,320/ - (sixteen lakhs eighty thousand three hundred
and twenty rupees) each to the legal heirs of seven deceased and also sentenced under section 337- G, P.P.C. to pay Rs.5000/ - (five thousand rupees) to each injured (9 in numbers), in
default of payment of Diyat and Daman amount, he shall further undergo for S.I till realization of the said amount, with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 19th December 2015 the complainant Qadir Bakhsh son
of Ali Jan C onstable lodged FIR No.02/2015 at Levies Thana Ornach District Khuzdar under
sections 302, 337/G, 427 and 279, P.P.C., stating therein that on the same date about 02:50 p.m. he and other levies officials were present on check post Ornach cross, meanwhile, received an information that a coach and a tanker vehicle had met with an accident at Tarkbar stream area. On that information they reached on the spot and saw the coach bearing registration No.BSA -123, which was going from Khuzdar to Karachi and Tanker be aring
registration No.TUB -487, which was going from Karachi to Quetta had collided, due to
which seven passengers of the coach died on spot and eleven were injured. Hence FIR was lodged.
3. In pursuance of the above FIR, investigation was entrusted to PW -8 Abdullah Naib
Tehsildar/I.O., who during investigation prepared site map, recorded the statements of
witnesses under section 161, Cr.P.C.; took into possession of both vehicles and submitted the challan in the trial Court.
4. At the trial, the prosecution produced as many as eight witnesses. The appellant was
examined under section 342, Cr.P.C. However, neither he recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defense. On conclusion of trial and hearing the arg uments, the trial Court awarded conviction to the appellant as mentioned
above, whereafter the instant appeal has been filed.
5. Learned counsel for the appellant contended that the trial court has mis -appreciated
the evidence and came to wrong conclusion; that without any cogent reason the trial court
convicted the appellant which is against the norms of justice; that the prosecution has failed to produce any evidence in respect of appellant rash negligently driving; mere driving on high speed is not a off ence. Learned counsel for appellant relied upon the cases 2019 PCr.LJ
Note 55 and 2018 PCr.LJ Note 27. Lastly prayed for setting aside the impugned judgment.
6. Conversely, the learned Additional Prosecutor General vehemently opposed the
arguments of the l earned counsel for the appellant and contended that the prosecution has
proved its case beyond any reasonable doubt and the trial court has rightly convicted the appellant after proper appraisal of material available on record.
7. According to prosecution case the appellant was driving the bus bearing registration
No.BSA -123 and due to his rash and negligent driving bus collided with oil tanker
resultantly, seven passengers were died on the spot and eleven sustained injuries. The
prosecution has examined ei ght witnesses including the Investigating Officer. The record
transpires that PW -6 is the only eye -witness and stated that he was driving oil tanker when
incident had taken place. The prosecution recorded the statements PW -6 Badal Khan under
section 161, C r.P.C. where he stated that oil tanker has been driven by his senior Abdul
Ghafoor while in the trial Court stated that he was driving oil tanker at the time of incident. He made dishonest improvement in his statement. When a witness made dishonest improve ment his statement cannot be believed. Reliance is placed on the case of "Ayub
Masih v. The State" PLD 2002 SC 1048.
8. The complainant in his statement stated that he received information of the incident at
02:15 p.m. and reply on query he stated that I i nformed the Tehsildar and he had reached at
02;00 p.m. the record transpires that FIR has been lodged at Levies Thana Ornach on return application by complainant at Tehsil Office Ornach. While PW- 2 recovery witness stated that
his statement was recorded at the spot. He further stated that Tehsildar remained at the spot
for 20/25 minutes. As per statement of PW -6 his statement was recorded by Investigating
Officer on the spot at 5/6 p.m. while Investigating Officer remained at the place of occurrence at abou t 06:00 p.m. Record transpires that FIR was lodged at 10:45 p.m. (night)
which means investigation has been conducted prior to registration of FIR which is not permissible under the law. Reliance is placed on case of "Iftikhar Hussain and others v. The State" 2004 SCMR 1185.
9. The trial court convicted and sentenced the appellant on the basis of statement of sole
ocular witness PW- 6 Badal Khan. The record transpire that collided bus has not been
examined by the vehicle inspector nor statement of analyst re corded in this regard to
ascertain whether incident has taken place by over -speeding or mechanical fault. The
prosecution was bound to prove over -speeding or the driver was guilty of driving rash and
negligence. But no such evidence was available on the re cord. Mere driving vehicle on high
speed does not constitute offence. No evidence was available on record to show that at what
speed the driver was driving the bus, although the appellant in his statement under section 342, Cr.P.C. admitted that he was dri ving the vehicle, but denied rashly or negligence. The
statement of accused/appellant under Section 342, Cr.P.C. can be taken in toto not in peace meal. The prosecution must prove his case with cogent, confidence inspiring evidence that the appellant was d riving negligently which is lacking in the case. Reliance is placed on the
judgment of this court "Khair Muhammad Shah v. The State" 2018 PCr.LJ 914. Relevant portion whereof is as under; -
"11. The prosecution is duty bound to establish 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 learne d
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 lega l
jurisdiction of appraisement evidence."
10. In criminal jurisprudence it is duty of prosecution to prove the case against the
accused beyond reasonable doubt and accused is presumed to be innocent unless or until the case is proved against him by cogent and confidence inspiring evidence. If there is any room for doubt, benefit is to go to accused. Where an appraisement of the evidence is open to two interpretations, one beneficial to the accused is to be adopted. It is repeatedly held by the apex Court that the accused is considered as most favorable child of law. Reliance is placed on Ayub Masih v. The State PLD 2002 Supreme Court 1048.
For the above reasons, the appeal is accepted. The impugned judgment dated 04th
November 2016 passed by the learned Sessions Judge Khuzdar is set aside and the appellant
Muhammad Rafique son of Malang Baloch is acquitted of the charge under sections 302, 337/G, 279, 427, P.P.C. The appellant is on bail, his bail bond stands discharge forthwith.
JK/113/Bal. Appe al 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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