2012 PLP 611 (MLD)

WAQAR AHMAD SETH, J.

The appellant Yasir Arafat was tried by learned Additional Sessions Judge-XIII, Peshawar in case F.I.R. No.534 dated 22-9-2007 registered for offence under sections 279/320, P.P.C. at Police Station West Cantt., Peshawar and after having been found guilty vide the impugned judgment dated 21-9-2011, he was convicted and sentenced under section 320, P.P.C. to undergo imprisonment for one year and to pay Diyat amount to the legal heirs of the deceased according to their respective shares. He was also convicted and sentenced under section 279, P.P.C. to undergo one year S.I. and to pay fine of Rs.2,000 or in default in payment of fine to suffer further three months' S.I. Both the sentences were directed to run concurrently, however, benefit of section 382-B, Cr.P.C. was extended to him.

2. The complainant reported the matter to the police, in terms, that on the eventful day at the relevant time his brother Yasir Arafat, the present appellant, was proceeding from Peshawar Saddar to his house in a motor car Alto bearing Registration No. 1030/LOE and when reached the crime spot, the deceased while crossing the road was collided with the said vehicle, which resulted injury to his head due to which he became unconscious, hence the case was registered against the appellant.

3. The prosecution in support of its case produced six witnesses in all. Muhammad Arif, Inspector/S.H.O. Police Station, Gulbahar appeared as P.W.1, who submitted completion challan in the court. P.W.2 is Rahmat Wali S.-I. Traffic Police, who incorporated the contents of murasila into F.I.R. Exh.P.W.2/1. He prepared site plan at the instance of complainant. He took into possession motor car bearing Registration No.LOE-1030 vide recovery memo. Exh.P.W.2/3. P.W.3 is Fazal Dian, S.-I. Traffic, who along with Umar Gul Mad Moharrir accompanied Rahmat Wali A.S.-I. to the scene of accident where the motor car in question was taken into possession on the basis of recovery memo. Exh.PW2/3. Dr.Faqirullah, Demonstrator KMC Peshawar, who conducted autopsy on the dead body of Muhammad Younas son of Abdul Rauf Khan, who was identified by Muharrar son of Muhammad Yousaf and Muhammad Gul son of Awal Sher. P.W.5 is Umar Gul HC No.4059, who is co-marginal witness to the motor car being taken into possession through recovery memo vide Exh.P.W.2/3. The complainant, who is the real brother of appellant, appeared as P.W.6 and narrated the same facts as mentioned in the first report.

4. After closure of prosecution evidence, statement of appellant under section 342, Cr.P.C. was recorded, wherein, he denied the allegations. He neither produced any witness in his defence nor wished to be examined on oath as required under section 340(2), Cr.P.C. The trial culminated in conviction and sentences awarded to the appellant through the impugned judgment, hence the appeal in hand.

5. Learned counsel for appellant contended that there is no eye-witness of the alleged occurrence, which fact has been wrongly ignored by learned trial court in the impugned judgment; that there is no evidence of rash and negligent driving by the appellant moreso, when none of the prosecution witnesses deposed against the accused holding him responsible for commission of offence, hence the evidence record and conclusion drawn therefrom is not supported by material on record, thus, the same being nullity in the eyes of law merits reversal.

6. Learned State counsel while rebutting the arguments from other side contended that the learned trial court attended to the facts and circumstances of the case in a reasonable manner and thereafter convicted and sentenced the appellant through the impugned judgment, which is according to law; that the reasons rendered by learned trial court in the impugned judgment are proper and convincing requires no interference by this court. I have heard learned counsel for the parties and gone through the relevant record.

7. 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 has lost his life 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. Keeping in view the above lacunas in the prosecution case, which escaped attention of learned trial court while recording the impugned judgment, hence the instant appeal is allowed and conviction and sentences of appellant are set aside. He is acquitted of the charges levelled against him. He be set at liberty forthwith if not required in any other case. His sureties are discharged from the liability of bail bonds. M.W.A./29/P Appeal allowed.