2023 Y L R 2588
[Balochistan]
Before Sardar Ahmad Haleemi, J
SAQIB MUHAMMAD ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 38 of 2022, decided on 23rd December, 2022.
Penal Code (XLV of 1860) ---
----Ss. 297, 320 & 427--- Causing death by rash and negligent driving and causing damage to
property---Appreciation of evidence ---Necessary witness ---Evidence non- recording of ---Four
persons lost their lives in an accident between a truck and a trailer ---Accused was convicted
for driving rash and negligently which resulted into death of four persons ---Validity ---
Prosecution was duty bound to prove rash and negligent driving by leading independent and
cogent evidence--- Prosecution failed to record statements of cleaners of trailer and truck---
Evidence of no eye -witness of the occurrence was recorded to prove rash and negligent
driving--- Trailer and truck were not examined by Motor Vehicle Examiner to ascertain their
speed and brakes to fix liability on driver of trailer or truck---Merely saying that accident
took place due to rash and negligent driving was not enough to substantiate allegations levelled against accused ---High Court set aside conviction and sentence awarded to accused
and acquitted him of the charge ---Appeal was allowed in circumstances.
Yasir Arafat v. The State and another 2012 MLD 611 and Tariq Pervez v. The State
1995 SCMR 1345 rel.
Nadir Ali Chalgari and Farooq Mastoi for Appellant.
Abdul Nafay, State Counsel.
Date of hearing: 14th December, 2022.
JUDGMENT
SARDAR AHMAD HALEEMI, J. ---This judgment disposes of Criminal Appeal
No.38 of 2022 filed on behalf of the appellant Saqib Muhammad son of Alaf Muhammad against the judgment dated 26.05.2022 (hereinafter the "impugned Judgment") passed by the learned Additional Sessions Judge -II, Hub, (hereinafter the "trial Court"), whereby the
appellant was convicted and sentenced in the following manners: -
(i) The accused Saqib Muhammad son of Alaf Muhammad is convicted and sentenced
under section 320 PPC for five (05) years RI and shall also pay the Diyat amount of
Rs.4,261,205/ - (Rupees Four Million Two Hundred Sixty One Thousand and Two
Hundred Five Only) equal to 30630 grams of silver to the legal heirs of deceased Muhammad Hamza son of Haji Muhmmad, to pay Diyat amount Rs.4,261,205/ -
(Rupees Four Million Two Hundred Sixty One Thousand and Two Hundred Five
Only) equal to 30630 grams of silver to the legal heirs of deceased Muhammad Zahid
son of Muhammad Hamza, to pay Diyat amount Rs.4,261,205/ - (Rupees Four Million
Two Hundred Sixty One Thousand and Two Hundred Five Only) equal to 30630
grams of silver to the legal heirs of deceased Muhammad Murtaza son of Muhammad Ejaz and also to pay Diyat amount Rs.4,261,205/ - (Rupees Four Million Two
Hundred Sixty One Thousands and Two Hundred Five Only) equal to 30630 grams of silver to the legal heirs of deceased Khalid Ahmed son of Muhammad Shareef. In case of non -payment of Diyat amount to the legal heirs of deceased persons, the
convict shall be dealt with under section 331(2), P.P.C.
(ii) The accused was convicted under section 279, P.P.C. and sentenced to six (06) months
RI.
(iii) The accused is also convicted under section 427, P.P.C. and sentenced to six (06) months RI. The benefit of section 382- B, Cr.P.C., was extended in favour of the
convict.
2. The prosecution story, in brief, is that on 14.04.2021 the complainant SI Rashid Ali
lodged FIR No. 14/2021 at Police Station Gaddani, with the allegations that on the fateful day of the incident i.e. 14.04.2021 during patrolling at about 9:30 p.m., he received information about an accident at Main RCD Road Luck Badook (Charai), upon this information he reached the spot. On query, he came to know that a driver Hamza along with
his companion namely Muhammad Zahid, Murtaza, and Khalil were going towards Winder in their vehicle Mehran bearing Registration No.AMU -179. In the meanwhile, vehicle trailer
No.E -1084 having a container driven by an unknown driver was driven behind the Mehran
Car left its track and by overtaking the vehicle Mehran car hit truck No.TAM -330 came from
the opposite side by rash and negligent driving, due to which the container kept on the vehicle trailer fell on Mehran's car, resultantly, the vehicle Mehran has been pressed, and four persons in the vehicle namely Hamza, Muhammad Zahid son of Hamza, Murtaza son of Ejaz, and Khalil son of Muhammad Shareef succumbed to the injuries at the spot and the
Mehran car also crushed. Hence, this report.
3. After the completion of the investi -gation, the final challan under section 173, Cr.P.C.,
was submitted before the trial Court and the trial commenced.
4. The trial Court read over the charge to the appellant, to which he pleaded not guilty
and claimed trial.
5. The prosecution examined as many as six (06) witnesses; after completion of
prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C.
He did not examine himself on oath as envisaged under section 340(2), Cr.P.C, nor produced any witnesses in his defence.
6. After hearing the arguments of learned counsel for the parties, the trial Court
convicted and sentenced the appellant vide impugned judgment, whereas, co- accused
Zafarullah son of Muhammad Ismail was acquitted of the charge. Hence, this appeal.
7. Learned counsel for the appellant contended that the prosecution has totally failed to
prove the case against the appellant and the conclusion so drawn by the trial Court is a result
of misreading, non- reading of the evidence and mis -interpretation of law, as such, in absence
of evidence against the appellant, no conviction or sentence can be awarded to anyone; that none of the witnesses connected the appellant with commission of offences by his hands, further, on the same set of evidence the co- accused has been acquitted of the charge; that
further the statements of PWs are not corroborated with each other and they made dishonest improvements in their statements before the trial court; the statements of prosecution witnesses are full of contradictions on material points; that during investigation nothing incriminating has come on record connecting the appellant with the alleged offence; that the appellant in support of his contention recorded his statement under section 342, Cr.P.C, wherein all the allegations so levelled were category -cally denied and appellant pleaded
innocence; that the points so formulated by the trial Court were neither discussed thoroughly and overlooked the contradictions made by PWs in their statements; that the prosecution has failed to prove the case through cogent evidence and the defense has succeeded to shake the prosecution evidence, which makes the case doubtful, further, after having kept both the version i.e. of prosecution and defence in juxtaposition, finally it will be concluded that the plea raised by the defence is more convincing, plausible and near to real facts, for which the
accused should be benefited and lastly prayed for acquittal of appellant.
8. On the other hand, the learned State counsel contended that the appellant has been
nominated in the FIR with a specific role of negligence driving; that due to the rash and
negligence driving of the appellant, four people lost their precious lives; that the prosecution witnesses remained consistent and the defence has failed to shake them; lastly supported the impugned judgment.
9. Heard the learned counsel for the parties and perused the record with their able
assistance.
10. Perusal of the record reveals that in the instant pathetic episode, an unfortunate
accident took place on 14.04.2021 at about 9:30 p.m. on main RCD Road Luck Badook (charai), wherein four people lost their lives. It is the case of the prosecution that PW -1
Rashid Ali, SI complainant lodged the FIR No. 14 of 2021 at the Police Station, Gaddani
deposed that he along with other Police officials were patrolling in the area, at about 9:30
p.m. he received information that accident took place at Main RCD Road near Luck Badook
(sharia), so they reached the place of occurrence; on the query, he came to know that four persons namely Hamza, Muhammad Zahid, Murtaza, and Khalil were going towards Winder
in their vehicle Mehran Car bearing registration No.AM -179 driven by Hamza, in the
meanwhile, a trailer bearing No. E -1084 having a container driven by an unknown person
left his track and by overtaking the Mehran car collided with truck No. TAM -330 from the
opposite side, resultantly, container lying on the body of the trailer fell on the Mehran car,
due to which, the Mehran car crashed and four people boarded therein succumbed to their injuries at the spot. Admittedly, PW -1 had not seen/witnessed the incident and his statement
is silent about the source of information, which he received about the accident; further, there is no direct evidence about the occurrence in which manner, it occurred as it was pitch dark at the main RCD road, which is evident from the site sketch (Ex.P/6 - B).
11. Now the next question about negligence and carelessness driving besides
overspeeding of the appellant is to be proved by the prosecution to constitute an offence
under Sections 279, P.P.C. and 337- G, which elements are lacking in the instant case. For
convenience, the same reads as follows: -
Section 279, P.P. C. Rash driving or riding on a public way. Whoever drives any
vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person, shall be punished
with imprisonment of either description for a time which may extend to two years or
with fine which may extend to three thousand rupees, or with both."
Section 337 -G, P.P.C. Punish -ment for hurt by rash or negligent driving. Whoever
causes hurt by rash or negligent driving shall be liable to arsh or daman specified for
the kind of hurt caused and may also be punished with imprisonment of either description for a term which may extend to five years as ta'zir."
12. It is a well settled principle of criminal jurisprudence that the prosecution is duty
bound to prove rash and negligent driving by leading independent and cogent evidence. It depicts from the record that the prosecution has failed to record the statements of the cleaner of the trailer and truck and any eye -witness of the occurrence to prove the rash and negligent
driving. Further, the trailer and truck were not examined by the Motor Vehicle Examiner to ascertain their speed, and bracks and to fix the liability on the driver of the trailer or the truck. Mere saying that the accident took place due to rash and negligent driving is not enough to substantiate the allegations levelled against the appellant.
13. Moreover, automobile companies have installed Electronic Braking Systems (EBS)
by using Modern technology in the vehicles, and in case of any eventuality, the vehicle can
be controlled and stopped easily. Likewise, the speed of the vehicle can be gathered from the evidence at the place of occurrence, how the vehicles collided, the marks of tires on the road,
the opinion of the examiner etc, but in the instant matter, none of the above evidence is
available to determine the rash and negligence driving of the appellant. The statement of
official police witnesses are based on hearsay evidence and even failed to disclose the source of information.
14. Furthermore, the co- accused Zafarullah, the driver of the truck has been acquitted of
the charge on the same set of evidence by extending him the benefit of the doubt, without ascertaining the responsibility of both evidence in the light of the evidence produced by the prosecution, the prosecution has not challenged the acquittal order of acquitted co- accused
Zafarullah. Similarly, it is an admitted fact in the instant case that the accident occurred due to a collision between trailer and truck, and none of the vehicles hit the Mehran car, in which four persons lost their lives; rather they died due to fell of the container on the Mehran car. Surprisingly the drivers and cleaners of the trailer and truck did not sustain a slight injury, meaning thereby both vehicles collided with each other and were not at high speed. The record is silent regarding the fact that the trailer was being driven by the appellant in violation of traffic rules, which led to the incident. Reliance is placed to the case of Yasir Arafat v. The State, and another 2012 MLD 611 Peshawar, relevant portion whereof is reproduced as under: - "
"Admittedly, the appellant was proceeding from Peshawar Saddar to his house in a motorcar bearing Registration No.LOE/ 1030 and when reached the place of occurrence, he struck the deceased on his head, who thereafter succumbed to the
injuries at the hospital. The appellant was charged for rash and negligent driving but
this fact has neither been mentioned in the murasila nor in the first report. The site plan reveals that the appellant was proceeding in the vehicle on his side and when the deceased was crossing the road, he was hit due to which he sustained injuries and became unconscious. No doubt, the deceased lost his life 4 in the episode but the
occurrence did not appear to have been witnessed by any body. Moreso, driving of
vehicle at high speed could not be considered and taken as a rash and negligent act
because modern technology had provided for reasonable safeguard of stopping the same within no distance and time. The factum of rash and negligent driving is not proved by expression of these words or expression of 'high speed' alone. The prosecution was supposed to show that when the accident took place, the condition of the traffic or the road was such, which necessitated a slower speed and that the motor car was being driven in an excessive speed keeping in view the quantum of traffic or the road. The record is also silent regarding the fact that the motor car was being driven in violation of the traffic rules, which led to the accident, therefore, could be equated with rashness and negligence. The approximate speed at which the motor car was being allegedly driven by appellant has not been fixed by any prosecution witness to lead to a reasonable conclusion that the same was on the higher side in view of the quantum of traffic and the nature of the road in question."
15. There are so many infirmities in the prosecution case as highlighted above, which
created doubt in the prosecution case. It is a settled principle of the law that for extending the benefit of the doubt multiple circumstances are not required. A single circumstance that creates reasonable doubt in the prosecution case is sufficient for extending the benefit of the doubt for recording the acquittal. In the case of Tariq Pervez v. The State 1995 SCMR 1345, the Hon'ble Supreme Court has observed as follows: -
"It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons, the Criminal Appeal is allowed. The impugned judgment dated
26-05-2022 passed by the learned Additional Sessions Judge -II, Hub is set aside and the
appellant Saqib Muhammad son of Alaf Muhammad is acquitted of the charge in case FIR No. 14 of 2021 under sections 320, 279 and 427, P.P.C. Police Station Gaddani District Lasbella. The appellant being in custody, shall be released forthwith, if not required in any other case.
MH/60/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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