1995 P Cr (PLP)

Raja Ayub Yiani for the State. Date of hearing: 8thFebruary, 1995, This appeal arises from the judgment of learned Magistrate Section 30, Rawalpindi, dated 26-4-1992 whereby he convicted Noor Khan, appellant, under section 304, P.P.C. for causing the death of Manzoor Hussain, and sentenced him to five years' R.I.

2. The prosecution case is that on 27-8-1985 at 3 p.m., the appellant while driving Motor-Cycle No.781/LHJ in a rash and negligent manner came from the side of Faizabad Murree Road, struck with the motor-cycle of the deceased who was at that time crossing Murree Road from Sixth Road on his Motor-Cycle 8255/SGA and caused the death of Manzoor Hussain.

3. The prosecution examined two witnesses out of whom Qurban Ali, P.W.1, is eye-witness of the occurrence. While supporting the prosecution case, he deposed that .the motor-cycle which was being driven by the appellant struck with the motor-cycle of the deceased who fell down on the road and was injured; the deceased was taken to General Hospital where he died due to accident injuries. Muhammad Sarwar, S.I., P.W.2, investigated the case; he recorded the complaint on same day and took into possession both the motor cycles vide recovery memos. Exhs.P.C. and P.D. and also got the deceased medically examined. The prosecution was given ample opportunity to produce its evidence from 6-11-1986 till 3-12-1991 and even the warrants of arrest of witnesses were issued, but none appeared.

4. While examined under section 342, Cr.P.C. the appellant denied incriminating circumstances and deposed that he was not present in Rawalpindi on the day of alleged occurrence and he was falsely implicated in the case as a substitute and produced D.W.1 who is his father. D.W.1 deposed that the appellant was in Bannu on the day of occurrence and was not involved in the case.

5. Learned counsel in support of the appeal contended that it was a case of pure accident and as such the appellant could not be convicted for culpable homicide not amounting to murder. He further contended that in the absence of post-mortem examination of the deceased, it cannot be presumed that the death of the deceased was direct result of injuries suffered by him on account of alleged rash and negligent act of the appellant. He lastly argued that the deceased was duty bound to see whether the main road was clear before intending to cross Murree Road entering from sixth road.

6. Learned counsel for the State controverted the arguments of learned counsel for the appellant by contending that the appellant was arrested on the same day and as such the plea of alibi adopted by him is afterthought. He submitted that the complainant has got no motive to falsely implicate the appellant.

7. After hearing learned counsel for the parties at length and on going through the record, I am inclined to agree with learned counsel for the appellant that medico-legal report cannot be read into evidence and taken notice by the Court. The contention of learned counsel for the State that no post-mortem was required according to Rules as the cause of death in the instant case was shock and multiple fractures is of no avail. It is unfortunate that in this case even the medico-legal reports issued by the doctor were not proved during the trial. A formal post-mortem was, however, necessary to find out the exact cause of death and as a result of this unfortunate omission, the prosecution has failed to establish that the death of the deceased was direct result of injuries suffered by him on account of negligent act of the appellant. It is well-settled principle of law that the accused can be held guilty of offence under section 304 or 304-A, P.P.C. only if it is proved by necessary medical evidence that the resultant injuries are immediate and efficient cause of death. The deceased was crossing the road from sixth road which is a side road and it was the duty of the deceased to have seen that the main road was clear before proceeding while the appellant was on main road, that is, Faizabad Murree Road. It has not been brought on record as to whether the road was clear or not at the relevant time. The fact that the appellant was driving at a fast speed would not make him liable for rash and negligence driving. If the road was not clear there was no time for the appellant to drive fast. It is always the duty of the person who comes driving from a side road towards the main road to see as to whether the road was clear before he enters the same. It was held in the case of Umara Khan and another v. The Member Board of Revenue West Pakistan, Lahore and another PLDu1965 (W.F.) Pesh. 104 that mere speed does not constitute a rash and negligent act. There have been a number of judicial decisions on the point that high speed ipso facto does not amount to rashness or negligence on the part of the driver. It is the duty of the prosecution to prove that the accused in fact acted in rash and negligence manner, which is distinguishable from high speed; negligence must be conclusively established by direct evidence.

8. I am of the opinion that even if the prosecution case is accepted on its face value, case of culpable homicide not amounting to murder is not made out. Admittedly the appellant had no enmity with the deceased. As the dead body of the deceased was not subjected to post-mortem, hence the exact cause of death cannot be ascertained. The contention of learned counsel for the State that the appellant has failed to establish the plea of alibi as he was arrested on the day of occurrence has no force as it is not necessary that defence version must be established or proved, it is for the prosecution to prove its case beyond any reasonable doubt.

9. For what has been discussed above, I am of the opinion that the appellant at the most had committed an offence under section 338, P.P.C. As .it is an admitted fact that the deceased died by striking with the motor-cycle of the appellant, conviction under section 34, P.P.C. is, therefore, altered to one under section 338, P.P.C. The appellant is a student of 20 year and is facing the criminal case since 1985, as such, on the question of sentence. I am of the opinion that the ends of justice would be fully met if he is fined Rs.10,

000. I order accordingly. The amount of fine if realized shall be paid to the legal heirs of the deceased and in case of default the appellant shall undergo six months simple imprisonment. The appeal is accepted in the above terms. The appellant is on bail. His bail bond shall stand discharged. . N.H.Q./N-307/1 Order accordingly