1999 PLP 1557 (MLD)

In the opinion of the Doctor, injuries Nos. l and 2 were sufficient to cause death in the ordinary course of nature, death had occurred due to haemorrhage and shock because of distortion of brain matter. All the injuries were ante-mortem and were accidental origin. Exh. P.A was the original post mortem report. Similarly the injuries on the dead body of Abdul Baqi were found to be as under:-- (1) There was a big lacerated wound 20 c.m. x 15 c.m. on whole side of left aspect of the head, crushing and cutting the whole skull and exposing the brain matter. (2) There was a big lacerated wound 15 c.m. x 10 c.m. on the left face and eyes going deep to brain cutting all the bones of face and eye ball. (3) There was a big cut wound 20 c.m. x 3 c.m. bone deep on the anterior right thigh. (4) There was a big cut wound 10 c.m. x 10 c.m, on the outer aspect of right leg. In the opinion of the Doctor, injuries Nos. l and 2 were sufficient to cause death in the ordinary course of nature, death had occurred due to haemorrhage, shock and distortion of brain matter. All the injuries were ante mortem and were of accidental origin. Exh.PB was the post-mortem report.

4. At the trial, prosecution examined Kafayat Hussain Shah, constable No.28, Police Station, Sahiwal, who stated that on 1-11-1990 the petitioner produced his driving licence before Taj Muhammad, S.I. which was taken into possession vide recovery memo Exh.PC and was attested by him and Riaz. On 7-11-1990 Hakim, owner of the Bus No.6524/S.G.D. produced Route permit and the registration book before Taj Muhammad, S.I. which was taken into possession by him vide Exh. PD and the recovery memo. was signed by this witness and one Habeeb Anwar, constable.

5. P.W.4 Sikander Hayat, stated that he joined the investigation of the case, from the place of occurrence, S.H.O. took into possession the motor-cycle belonging to the deceased-Muhammad Abdullah and Abdul Baqi vide recovery memo Exh.PE which was signed by him and Abdur Rehman. He also stated that the Bus was standing at the Place of occurrence on the side of mettled road next to the motor-cycle. The bus was also taken into possession and both the vehicles were taken to the Police Station.

6. P.W.5 Ata Muhammad is the eye-witness to the occurrence. His examination-in-chief was more or less identical to narration of the complainant in his complaint (Exh.PF). In cross-examination, this witness stated that he went to Sikanderpur to meet one person Sardar Yousaf by name alongwith Muhammad Rafique where they met Abdullah and Abdul Baqi-deceased. He alongwith Muhammad Rafique was coming with Rana Habeeb in his car towards Sahiwal, following Muhammad Abdullah and Abdul Baqi on their motorcycle. Rana Rafique had personal work with Sardar Yousaf. It was at sunset time when they left Sikandarpur towards Sahiwal. On the metalled road, Muhammad Abdullah and Abdul Baqi were riding the motorcycle at a distance of 5/6 Karams ahead of them. The scooter was driven by Abdullah, who was a student and Abdul Baqi was a Government servant. They saw the bus coming from the opposite direction from a distance of about half mile. Thus bus left its side and went towards the side where Abdullah etc. were riding their motorcycle. At that place, the road is about 5/6 Karams wide. Due to impact of the accident, the deceased fell from their motor-cycle in Katcha lane adjoining the metalled road. Abdullah died at the spot whereas Abdul Baqi was breathing. Driver ran away when he alongwith other witnesses alighted from the car. This witness stated that he knew the driver because frequently he had travelled to Sargodha. He stated that he knows number of drivers, who ply their vehicles on this line. Bus was being driven in a very rash manner but he cannot tell its speed. There was only one head light of the bus. There was a driver and conductor in the bus and no passenger was travelling at that time in the said bus. He along with the other witnesses were at the spot guarding dead bodies when the police arrived at the spot and recorded his statement. He admitted that the witnesses were closely related to the deceased. However, he denied his relationship with the deceased but admitted that he had close relations with the complainant party. He vehemently denied that he has not seen the occurrence and the accident did not take place due to negligence of the driver-/petitioner. He denied the suggestion put to him by the accused/petitioner that the bus was not being driven by the accused.

7. The other eye-witness examined was Ghulam Habeeb (P.W.6) also the complainant in the case. In his examination-in-chief, he reiterated the narrations in the complaint. In cross-examination, he stated that they went to Sikanderpur in the after-noon when he left Sahiwal he was at his Dera where Rana Rafique came, his Dera being adjacent; admitted that Rana Rafique was related to him. Atta Muhammad P.W. came there to meet Rana Rafique. They had to meet Sardar Yousaf at Sidanderpur. The witness was cross-examined about his eye witness account of the occurrence and he stated in reply that when they saw the bus at that time it was at a distance of about 30/35 Karams. The speed of their car was 30/35 K.M, per hour. Bus was being driven without one head light. It was fast in speed but he could not tell the exact speed. However, the speed was very fast. He has recorded in his statement Exh.PF before the police that the bus did not have one head light. When confronted with Exh.PF, this fact was not incorporated. He alongwith other witnesses alighted from their car and saw the driver who thereafter ran away in the direction of Sahiwal City. There was no passenger in the bus except the driver and cleaner. This witness stated that he knew the accused/petitioner and also his name. The bus was standing on the side of the metalled road whereas the motor-cycle was lying on the Katcha lane next to the Pacca road. He admitted that Abdul Baqi and Muhammad Abdullah were his nephews and denied that the accident took place due to negligence of the deceased. He further denied that the accused/petitioner was not driving the bus and that the accident did not take place due to his negligence. This witness admitted that one Mazhar Khan was the Manager of Bus Coaches. He expressed lack of knowledge about the accused and the said Mazhar Khan to be related to each other. He denied that they had enmity with Mazhar Khan and due to this reason they have involved the accused/petitioner. He denied the suggestion that the motor-cycle collided with a tractor trolly and its driver ran away, therefore, they falsely implicated the accused/petitioner.

8. Taj Muhammad (P.W.7), S.I./S.H.O. conducted the investigation. He stated that 1-11-1990, the accused/petitioner surrendered himself at the Police Station and produced his driving licence which was taken into possession vide recovery memo Exh.P.C.

9. The accused/petitioner in his statement under section 342, Cr.P.C. stated that some body else was driving the vehicle at the time of accident and that it took place due to the negligence of the deceased.

10. Magistrate Section 30 Shahpur vide his judgment dated 25-11-1991 convicted the petitioner under section 320, P.P.C. and sentenced him to four years imprisonment and to pay the Diyat amount in the sum of Rs.1,75,610 for each of the heirs of the deceased namely Abdul Baqi and Muhammad Abudllah. In default of payment of Diyat, the petitioner shall be kept in Jail and dealt in the manner as if he was sentenced to simple imprisonment unless the Diyat is paid.

11. Against the judgment of the Magistrate Section 30 Shapur dated 25-1-1991 the appeal was filed before the learned Additional Sessions Judge, Sargodha, who vide his judgment dated 13-8-1992 set aside the findings of the Magistrate Section-30 dated 25-1-1991 mainly on the ground that when P.W.5 Ata Muhammad and P.W.6 Ghulam Habeeb were recalled for cross-examination, no oath was administered to them. He remanded the case to the Magistrate to administer oath to P.Ws. 5 and 6, and thereafter allow cross-examination end conclude the trial.

12. The cross-examination of P.W.5 and P.W.6 in post remand proceedings has been discussed in the early part of this judgment. However, one fact which is note worthy is the examination of the accused/petitioner under section 342, Cr.P.C. where he took complete somersault and stated that the accident took place as a result of collision with a tractor trolly, whose driver ran away, and in the meantime, he alongwith one driver of Hi-luxe bus reached the place of accident and took the injured to the hospital and informed the police about the accident. The police instead of arresting the driver of tractor trolly, arrested him since he was available. The accused/petitioner did not produce Yasin-driver of the Hi-luxe in defence but produced one Abdul Razzaq, (D.W.1) who stated that he did not know about the accident, but stated that he took the injured to the hospital and did not go to the police to get his statement recorded. Magistrate Section-30 Shahpur vide his judgment dated 2-10-1995 convicted and sentenced the accused/petitioner the punishment mentioned in detail above. The appeal of the accused/petitioner was dismissed by the Additional Sessions Judge, Sargodha on 6-6-1997 maintaining his conviction and sentence.

13. Learned counsel for the petitioner assailing the findings of the two Courts below submitted the following points to establish that the prosecution version was doubtful and not credence can be given to it to sustain the conviction and sentence of the petitioner:- (i) that the prosecution version is based on surmises. The onus to prove the case against the accused/petitioner always lies on the prosecution and weakness of the defence cannot bolster prosecution narration. It has to stand on its own legs to prove beyond reasonable doubt, the culpability of the accused/petitioner in order to secure conviction. In support of his argument, he relied on Abdul Subhan v. Raheem Bakhsh and another (PLD 1994 SC 178) and Muhammad Ishaque Khan and others v. The State (PLD 1994 SC 259). (ii) that the Courts below failed to appreciate that mere fast driving is not sufficient to secure conviction under section 320, P.P.C. It should be shown through unimpeachable evidence that the accused was guilty of rash and negligent driving. Reliance was placed on Abdul Ghani v. The State (1975 PCr.LI 515 and Mushtaq alias Niku v. The State (1998 PCr.LI 158). (iii) that failure to examine the Motor Vehicle Examiner by way of expert evidence has created dents in the prosecution version. (iv) that medical evidence is not in accord with the ocular testimony. Learned counsel argued that at the time of post-mortem examination conducted on 26-10-1990 at 9-15 p.m. the Doctor opined that rigor mortis had developed on the dead body. Taking the arguments to its logical conclusion, learned counsel stated that according to the eye witnesses, accident took place at 8 p.m. whereas the rigor mortis develops between 3/6 hours after the death which shows that the accident had taken place much earlier, than the time given by the eye witnesses, therefore, the story of the eye-witnesses that they followed the deceased in their car is false and should be ruled out of consideration. Lastly it was contended that the eye-witnesses are closely related to the deceased and no credence should be attached to their testimony.

14. I have carefully attended to the arguments and points raised by the learned counsel which appear attractive on the face of it but when probed deeply, there is no weight in it. Undoubtedly, there are some contradictions and discrepancies in the prosecution version but such minor infirmities do occur in every statement recorded after a long time and time and again it has been held by the superior Courts that such discrepancies and contradictions are there in every case and present rather natural aspect of the occurrence.

15. There is no cavil with the proposition that the prosecution has to stand on its own legs and it is the bounden duty to prove beyond reasonable doubt the culpability of the accused/petitioner, the weak or false plea of the defence would not in no manner promote the prosecution narration. However, in this case the totally inconsistent defence adopted by the accused/petitioner amounting to a complete somersault, I must say so with consternation has boomeranged against the petitioner. Weak or false plea is totally different to an inconsistent plea. The prosecution, as discussed above, has been able to prove beyond any shadow of doubt the culpability. of the accused/petitioner which when placed in juxta position to the inconsistent defence taken up by the accused/petitioner makes the narration of the prosecution insurmountable.

16. A rash act is defined as an over hasty act used in contra-distinction to a deliberate act. Criminal rashness is defined as doing and act with undue haste knowing that such an act is likely to spell dangerous consequences to others but the accused persists in his act being totally in-different to the consequences which might follow; negligence is defined as failure to take proper care and caution which any other reasonable and prudent person would take. The criminality lies in doing the act without taking proper care and caution to guard against injury to others.

17. The witnesses have stated elaborately that the accused/petitioner was driving the bus in rash and negligent manner; to suggest that the witnesses did not a specifically state the speed with which the vehicle was being driven is an argument which need not be adverted to and on the face of it is not plausible. The witnesses have stated that the accused/petitioner was driving in a rash manner and this conclusion was arrived at by their observation with their naked eyes keeping into consideration their experience as they themselves were driving a car and the negligence described by the witnesses was the driving in pitch darkness with only one head light. The statements of two eye-witnesses, therefore, conform to test laid down to describe rash and negligent driving mentioned above.

18. No suggestion has been put to the prosecution witnesses to suggest false implication of the accused/petitioner. Mere relationship of the witnesses with the deceased is no ground to discard their confidence inspiring testimony.

19. The accused/petitioner driving the vehicle in a rash and negligent manner caused death of two young men, one of them being a student in the prime of his youth. Stringent punishment has to be awarded in such like cases to serve as a deterrent.

20. I, therefore, agree with the findings of Magistrate Section 30 Shahpur and the Additional Sessions Judge, Sargodha in convicting the petitioner under section 320, P.P.C. and find no mitigating circumstance to interfere with the sentence awarded. 21 Resultantly, this revision petition fails and is dismissed. N.H.Q./M-780/L Revision petition dismissed,