2008 PLP 456 (YLR)

ARSHAD NOOR KHAN, J.

By this common order, I intend to dispose of Criminal Appeal No.S-169 of 2006 (State v. Imdad Ali) and Criminal Appeal No.S-177 of 2006 (State v. Ghulam Muhammad), as both the appeals have arisen out against the same order passed by the learned Sessions Judge, Umerkot in S.C. No.34 of 2006 (State v. Ghulam Muhammad) in Crime No.21 of 2005 of P.S Umerkot under sections 320, 279, 337-G, 337-F(vi) and 337-F(i), P.P.C. whereby the appellant Ghulam Muhammad has been convicted and sentenced to suffer five (5) years' R.I. and amount of Rs.2,80,000 as Diyat and Rs.10,000 each as compensation to be paid to the legal heirs of deceased Muhammad Rasheed and injured Lajpat Bajeer and Ashique, by the appellant Imdad Ali, the owner of the Oil Tanker, within 15 days thereof failing which the writ of attachment shall be issued. The appellants being aggrieved from the aforesaid order passed by the learned trial court have preferred the appeals separately. Appellant Ghulam Muhammad has challenged his conviction and sentence awarded to him by the learned trial Court and appellant Imdad Ali has challenged the order thereby directing him to deposit the amount of Diyat and compensation. The fact leading rise to the present appeals in brief are that on 9-3-2005 at about 9-30 p.m. the appellant Ghulam Muhammad was driving Oil Tanker No.J-0460 recklessly in rash and negligent manner and while passing from Mirpurkhas/Umerkot Road near bus stop Sahiban-Jo-Kot, hit to a jeep wherein complainant, his brother Muhammad . Rasheed and Lajpat Bajeer were travelling and because of the said incident Muhammad Rasheed succumbed to the injuries and expired and complainant Ashique son of Muhammad Yousif and Lajpat Bajeer sustained injuries, as such, F.I.R., as stated above, was registered. After usual investigation, challan against accused Ghulam Muhammad was sent in Court to stand trial. The learned Sessions Judge Umerkot on receipt of the challan complied the provisions of section 265-C, Cr.P.C. vide receipt Exh. 1, framed the charge vide Exh.2 against accused Ghulam Muhammad, which was read over and explained to him, who after hearing the same, pleaded guilty vide his plea Exh.3. The learned trial Court after recording the plea of guilt, convicted and sentenced accused Ghulam Muhammad as stated above and while awarding Diyat amounting to Rs.2,80,000 for payment to the legal heirs of deceased Muhammad Rasheed and compensation amounting to Rs.10,000 each to the injured Lajpat Bajeer and complainant Ashique, directed the appellant Imdad Ali being owner of the Oil Tanker in question, to deposit the same. The appellant Imdad Ali has, therefore, challenged this part of his sentence. I have heard the appellant in person and Mr. Mumtaz Alam Leghari, learned Assistant A-G. for the State. The appellant has contended that they have been illegally convicted and sentenced by the learned trial Court without affording them an opportunity of being heard, as such, the impugned order may be set aside. Mr. Mumtaz Alam Leghari, learned A.A-G. for the State candidly conceded that the, direction to the appellant Imdad Ali to deposit the amount of Diyat and compensation is. against the law, as such, he will not support the impugned order. I have considered the arguments advanced by the appellant as well as learned A.A-G. and have gone through the record available before me. The incident took place while appellant Ghulam Muhammad was driving the Oil Tanker recklessly in rash and negligent manner and hit to the jeep wherein the complainant, his brother Muhammad Rasheed and P.W. Lajpat Bajeer were travelling. All the said persons sustained injuries and injured Muhammad Rasheed succumbed to the injuries in the way to the hospital. It is, therefore, evident that at the alleged time of incident appellant Imdad Ali, who is the owner of the vehicle in question, was neither present at the spot nor participated in the incident in any manner. The responsibility regarding the present incident squarely lies on the driver, who was driving the oil tanker and for any accident, the owner of the vehicle could not be blamed or held responsible for the act committed by the driver of his vehicle. The incident of accident was the risk and responsibility of the driver and he was responsible for the whole act of the incident committed by him. Section 320, P.P.C. also speaks about the prosecution} of the driver, who by rash and negligent driving committed Qatl-i-Khatta and in addition to Diyat he shall be punished for imprisonment of either description for a term which may extend to 10 years. Plain reading of section 320, P.P.C., therefore, clearly indicates that whoever committed Qatl-i-Khatta is responsible in addition to Diyat for imprisonment, which may extend to 10 years. Section 320 ibid, is therefore, completely silent to hold any other person than the person responsible for Qatl-i-Khatta to be penalized in any manner including directing him to pay the amount of Diyat or compensation. The learned trial Court has penalized the appellant Imdad Ali being owner of the oil tanker to pay the amount of Diyat to the extent of Rs.2,80,000 and compensation amounting to Rs.10,000 each payable by him which seems to be contrary" to the section 320 or 337-G and 337F(vi) ibid. Even amount of Diyat is to be fixed keeping in view the value of 630 grams of silver and the criteria of calculation of Rs.2,80,000 as Diyat by the learned trial Court has also not been specified in the order impugned. The amount of compensa tion in the case of injuries sustained during the course of accident is also foreign to section 337-F and G, P.P.C. which provides payment of Arsh and Daman and the learned trial Court has not calculated Arsh and Daman in true perspective of section 337-F and 337-G, P.P.C. The learned trial Court has convicted and sentenced the appellant Imdad Ali for payment of Diyat and compensation in his absence without hearing him, as such, the bright principles of natural justice have also been violated as no one should be condemned unheard prior to passing of adverse orders against him. Admittedly the appellant Imdad Ali has not been heard by the learned trial Court while directing him to deposit amount of Diyat and compensation, as such, any order passed against him is illegal, inoperative and unjust and against the principles of natural justice. The illegalities discussed above seem to be so grave in nature, the learned Assistant A-G. was unable to defend the impugned order and rightly conceded that the order impugned is not sustainable. For all the aforesaid reasons and circumstances I find that the learned trial Court committed grave illegality in passing the impugned order thereby directing the appellant Imdad Ali to deposit the amount of Diyat and compensation without affording an opportunity of being heard to him. The learned trial Court has not sentenced the appellant Ghulam Muhammad for the amount of Diyat, which is also mandatory requirement of section 320, P.P.C. ibid. Both the appeals are, therefore, allowed, impugned order is set aside and the case is remanded to the learned Sessions Judge, Umerkot for fresh adjudication of the matter in accordance with law. The appellant Ghulam Muhammad is present on bail. Since the offence with which he has been charged is bailable offence, as such, he is allowed to continue on bail with the direction to him to appear before the learned trial Court on 16-1-2008. H.B.T./I-26/K Order accordingly.