2013 PLP 1659 (YLR)

FAROOQ ALI CHANNA, J.

The appellant through the instant Criminal Appeal has challenged the judgment dated 14-5-2010, passed by learned IIIrd Additional Sessions Judge, Malir-Karachi in Sessions Case No. 174 of 2004 outcome of F.I.R. No. 30/2004, Police Station Steel Town under sections 322, 427, 212, 109/34, P.P.C. convicting and sentencing the appellant under section 320 PPC to suffer RI for three years and to pay Diyat amounting to Rs.11,0,2680. The appellant was extended benefit under section 382-B, Cr.P.C.

2. Concisely, the facts of the case are that on 23-4-2004 complainant Mehmood Alam along with his nephew Ali Abbas was crossing the road for going towards Imam Bargah to attend the Majlis, when one Burraque Coach bearing Registration No.PE-6262 came rashly and in negligent manner hit Ali Abbas resulting his death at spot. Police came at wardat, removed the dead body to hospital and prepared Mashirnama of wardat. After post mortem of the deceased A.S.-I. Sharafat Ali recorded F.I.R. of Mehmood Alam under section 154, Cr.P.C. against unknown person. It is further case of prosecution that on 28-3-2004 Waris, Ali the owner of Burraque Coach PE-6262 produced one Taj Muhammad before the Investigating Officer informing him that he was the brother of driver Merajuddin who after accident has run away. The Investigating Officer arrested Taj Muhammad on the allegation that he has facilitated appellant Merajuddin to escape, however, on 9-4-2004 Muhammad Iqbal another brother of appellant Merajuddin produced appellant at Police Station where complainant and other witnesses identified him to be the driver Burraque Coach who has committed accident. The Investigating Officer arrested the accused/appellant, after completing the investigation, submitted the challan. The trial court framed charge, recorded the evidence of prosecution witnesses, examined the appellant under section 342, Cr.P.C. and after hearing learned counsel for the parties found the appellant guilty of Qatal-e-Khata, therefore convicted and sentenced him as referred hereinabove.

3. The appellant was produced before this Court by Jail authorities. He has entreated this Court that he has completed more than the period of sentence awarded by trial Court. However, due to non-payment of diyat amount he is still in confinement. He has further contended that he is innocent, committed no offence and has been involved by the owner of Burraque Coach PE-6262 in order to save the actual driver of his community. He has further contended that he being poor person, cannot afford to make payment of diyat amount. He has requested that his case may be reconsidered on merits.

4. Learned Assistant Prosecutor-General, Sindh has contended that the appellant has been identified by four prosecution witnesses who have no enmity or grudge against the appellant to involve him falsely leaving the actual accused. Learned Assistant Prosecutor-General, Sindh has further contended that the appellant was booked in this case by the owner of Burraque Coach who was the proper person to know that who was the driver Burraque Coach at the time of accident as such the prosecution has successfully established the charge against the appellant, therefore, the appeal is liable to be dismissed.

5. Perusal of prosecution evidence recorded by trial court reveals that complainant has identified the appellant before trial court however he in his statement under section 154, Cr.P.C. has stated nothing about the features and descriptions of the appellant; even he has not stated that he had seen the driver and can identify him afterwards. The other witnesses Syed Yousuf Alam, Syed Tanveer Haidar and Naseem Abbas have also identified the appellant before the trial Court. Regarding their presence at the place of incident P.W. Syed Yousuf Alam has stated that he was standing outside his house, during cross-examination he has stated that while recording his statement under section 161, Cr.P.C. he informed the Investigating Officer about his presence at scene of offence but perhaps police has not written the above fact in his statement. Prosecution witness Tanveer Haidar has stated that he was going to meet his neighbor Syed Yousuf Alam and saw the complainant and deceased standing at the place of incident, likewise prosecution witness Naseem Abbas has deposed that he was standing outside his house however during cross-examination he has also admitted that he has not stated in his statement under section 161, Cr.P.C. that he was standing at the place of incident. He has also admitted that at the time of incident the road was under repair and no vehicle could be driven speedily.

6. Besides above, the complainant in his statement under section 154, Cr.P.C. or evidence before the trial Court has not claimed that above witnesses were available at the place of incident or reached there soon after the accident though his statement under section 154 was recorded after a considerable time of accident. Furthermore, the appellant was not identified at spot nor named in F.I.R. and was arrested after seventeen days' of incident, in such circumstances the appellant had to be produced before the Judicial Magistrate for his identification parade through the complainant and other witnesses which exercise the Investigating Officer has failed to carry on, causing the investigation to be unfair, such omission creates hardship for innocent persons, in such cases court has to be extra cautious. In these circumstances, the evidence of above prosecution witnesses do not inspire confidence hence cannot be relied upon safely for recording the conviction of the appellant.

7. Per prosecution case, the main evidence against the appellant was that his name was disclosed to Investigating Officer by Waris Ali the owner of Burraque Coach PE-6262, but the prosecution has not examined the said witness Waris Ali before trial Court though his name was shown in the list of witnesses of challan sheet. It is also matter of record that before the appellant was produced before the Investigating Officer, his brother Sirajuudin was confined by police as such the surrender/production of appellant being accused in this case under pressure and compulsion cannot be overlooked.

8. For the reasons mentioned above, I have come to the conclusion that prosecution has failed to establish the charge of Qatal-e-Khata against the appellant without any shadow of doubt, the conviction cannot be upheld merely on weak type of prosecution evidence as is position in the present case, I, therefore, set aside the impugned judgment and thereby set aside the conviction and sentence awarded to the appellant and acquit him from the charge of Qatal-e-Khata. Above are the reasons for the short order passed on 28-1-2013. HBT/M-45/K Appeal allowed.