2020 P Cr (PLP)

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 Constable 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 bearing 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 arguments, 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 offence. 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 learned 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 eight 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, Cr.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 improvement 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 informed 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 about 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 recorded 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 record. 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 driving 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 driving 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 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."

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. Appeal allowed.