2004 P Cr (PLP)

The necessary facts giving rise to the present revision petition are that on 3-10-1998 one Mubarak Ali was allegedly run over by a truck on Karkan Road near Muhammadpura Chowk, Mananwala, District .on and resultantly his left leg was crushed. F.I.R. No.307 was lodged in respect of that incident by Mubarak Ali's brother namely Ali Ahmad on the, same day, i.e. 3-10-1998 at Police Station Mananwala, District Sheikhupura for offences under sections 279/337-G, P.P.C. In the F.I.R. the driver of the relevant truck had not been named by the complainant and he was described as an unknown person. The record of this case does not show as to on which basis the present petitioner namely Ghulam Mustafa had been implicated in the present case as the driver of the relevant truck. However, the fact remains that the petitioner was arrested in connection with this case and was subsequently released on post-arrest bail on 12-10-1998. After completion of investigation a challan was submitted before the learned trial Court. After holding a full-dressed trial the learned Judicial Magistrate 1st Class, Sheikhupura convicted the petitioner for an offence under section 279, P.P.C. vide judgment dated 24-9-2003 and sentenced him to rigorous imprisonment for one year. The petitioner was also convicted for an offence under section 337-G, P.P.C. and was sentenced to rigorous imprisonment for one year and to pay Arsh of Rs.10,000 to the injured victim. Both the sentences were ordered to run concurrently and the benefit under section 382-B, Cr.P.C. was extended to the petitioner. The petitioner preferred an appeal in that regard before the Court of Session, Sheikhupura but his appeal 'was dismissed by the learned Additional Sessions Judge, Sheikhupura vide judgment dated 7-5-2004 upholding and maintaining the petitioner's convictions and sentences recorded by the learned trial Court. Hence, the present revision petition before this Court.

2. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the petitioner that the prosecution had failed to prove its case against the petitioner beyond reasonable doubt as neither the identity of the petitioner as the driver of the relevant truck had been established nor the necessary ingredients of the relevant offences regarding rash and negligent driving had been established through any independent evidence. As against that the learned counsel for the State has maintained that the prosecution had succeeded in establishing the petitioner's guilt beyond reasonable doubt and, therefore, the petitioner's convictions and sentences recorded by the learned trial Court and upheld by the learned Appellate Court do not warrant any interference by this Court.

3. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed by me that the petitioner had not been nominated in the F. I. R. as the person who was driving the relevant truck at the time of the alleged occurrence. The record of this case is completely silent as to how the petitioner's name had surfaced in this case and as to how he had been implicated in commission of the relevant offences. 'It is admitted at all hands that all the eye-witnesses produced by the prosecution never knew the petitioner personally and the person who was driving the relevant truck at the time of the alleged incident had run away from the spot. The F.I.R. had described the driver of the relevant truck as an unknown person and the complainant as well as the Investigating Officer had maintained before the learned trial Court in unison that the complainant had never made any supplementary statement during the investigation of this case nominating the petitioner as the driver of the relevant truck. It is not disputed that no test identification parade had been held in this case so as to positively incriminate the petitioner as the person who was driving the relevant truck at the time of the occurrence. It may be true that the eye-witnesses produced by the prosecution before the learned trial Court had pointed their accusing fingers towards the present petitioner while deposing before the learned trial Court but at the same time it is equally true that the said eye-witnesses had made their statements before the learned trial Court after about 4/5 years of the alleged occurrence and during this period they had ample opportunities to have a good look at the petitioner not only during the investigation of this case but also before the learned trial Court at pre trial stages. Thus, identification of the petitioner by the eye-witnesses before the learned trial Court was hardly sufficient to clinch the matter in that regard all by itself.

4. Apart from the question of identification of the petitioner as the driver of the relevant truck a legal aspect of this case has also particularly engaged my attention which aspect had unfortunately been completely ignored by the learned Courts below. It has pertinently been noticed by me that in respect of both the offences allegedly committed by the petitioner, i.e. offences under sections 279, P.P.C. and 337-G, P.P.C. "rash and negligent driving" is an essential ingredient which has to be independently established by the prosecution so as to bring home a charge in that regard against an accused person. After going through the entire evidence produced by the prosecution I have failed to find any independent evidence regarding this essential ingredient of the relevant offences. The mere fact that some witnesses had verbally asserted before the learned trial Court that the truck was being driven carelessly and negligently or that it was being driven at a fast speed does not by itself suffice to establish "rash and negligent driving". The words "rash" and "negligent" in the context of driving a vehicle have been specifically considered and interpreted in the cases of Faqir Muhammad v. The State 1984 PCr.LJ 676, Muhammad Yaqub Rathore v. The State 1968 PCr.LJ 1438, Muhammad Bakhsh v. The State 1976 PCr.LJ 405, Mst. Shafiq Begum v. The State and another 1976 PCr.LJ 356, Abdullah v. The State 1968 PCr.LJ 1416, Noor Khan v. The State 1974 PCr.LJ 56 Ali Muhammad v. The State PLD 1973 Kar.

427. All these precedent cases show that a mere assertion by prosecution witnesses that the accused person was driving the vehicle rashly or negligently at the relevant time; does not suffice all by itself to establish a charge in that regard. It is also settled law that mere fast speed of a vehicle does not by itself establish that the vehicle was being driven rashly or negligently. A reference in this regard may be made to the cases of Muhammad Saddaq v. The State 1985 PCr.LJ 2794, Muhammad Sadiq v. The State 1984 PCr.LJ 2574, Sher Zaman v. The State 1983 PCr.LJ 610, Muhammad Akhtar v. The State 1980 PCr.LJ 103, Taj Muhammad v. The State 1979 PCr.LJ 985, Rogers v. The State 1977 PCr.LJ 138, Abdullah v. The State 1968 PCr.LJ 1416, Muhammad Afzal v. The State 1975 PCr.LJ 1353, Abdul Ghani v. The State 1975 PCr.LJ 515, Muhammad Bakhsh v. The State 1976 PCr.LJ 405, Terence Anthony D'Casta v. The State 1969 PCr.LJ 1228, Issa Khan v. The State PLD 1975 Kar. 723, Umara Khan and another v. Member, Board of Revenue, West Pakistan Lahore and another PLD 1965 (W.P.) Peshawar 104 and Ghulam Muhammad v. The Crown PLD 1953 Lah.

260. The learned counsel for the petitioner has added two cases in this list and they are Mushtaq alias Niku v. The State 1998 PCr.LJ 158 and Muhammad Hussain v. The State KLR 1994 Criminal Cases

226. It is trite that if an essential ingredient of an offence is not proved by the prosecution then no conviction can be recorded by a Court for such an offence. In the case in hand the prosecution has utterly failed to bring any independent evidence on the record to establish that the relevant truck was being driven in a manner which could be termed as rash and negligent. In these circumstances the convictions and sentences of the petitioner recorded by the learned trial Court and upheld by the learned Appellate Court for offences under sections 279, P.P.C. and 337-G, P.P.C. have been found by me to be unsustainable. In the absence of any evidence regarding rash and negligent driving of the relevant truck by its driver the only conclusion that can legitimately be drawn from the circumstances of this case is that Mubarak Ali, the injured victim, had sustained his injuries on account of an accident. By virtue of the provisions of section 80, P.P.C. "Nothing is an offence which is done by accident or misfortune, and .without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution": No evidence is available on the record of this case that proper care and caution had not been exercised by the driver in the driving of the relevant vehicle.

5. For what has been discussed above this-revision petition is allowed, the impugned judgments dated 24-9-2003 and 7-5-2004 passed by the learned trial Court and the learned Appellate Court respectively, are set aside, the convictions and sentences of the petitioner G recorded by the learned trial Court and upheld by the learned Appellate Court are held to be unsustainable and the petitioner is acquitted of the, charge. He shall be released from the jail forthwith if not required in any other case. N.Q.Q./G-47/L Revision petition allowed.