2006 PLP 1510 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.

This appeal by leave of the Court is directed against the order of the High Court of Sindh. Karachi, dated 15-5-1995, passed in Criminal Miscellaneous No.72 of 1995.

2. Briefly stated, the facts of the case are that respondent No.1 was sent up to face trial in the case registered as F.I.R. No.25 of 1991 at Police Station Mochko, Karachi. The allegations against respondent No. 1 were that on the given date he was driving the wagon in rash and negligent manner and while taking a turn near Yousuf Turn Mochko, Karachi. he dashed against the scooter which was being ridden by Muhammad Siddique, which resulted in his death.

3. Charge was framed under section 320, P.P.C. to which the respondent pleaded not guilty and claimed trial. The prosecution examined a number of witnesses. The learned trial Court after hearing the learned counsel for the parties acquitted the respondent vide judgment dated 30-11-1994.

4. Feeling aggrieved, the appellant filed criminal miscellaneous in the High Court of Sindh, Karachi, which was dismissed vide impugned order, dated 15-5-1995.

5. Leave to appeal was granted to consider whether the view taken by the High Court is based on the evidence available in the record and whether respondent No.1 has been rightly acquitted.

6. We have heard the appellant, and respondent No.1, who appeared in person, as well as Mr. Akhlaq Ahmed Siddiqui learned counsel for the State. Learned counsel for the State does not support the impugned order. No doubt in this case the learned High Court while dismissing the criminal miscellaneous application of the appellant observed that Asif Mehmood P.W.5 (Exh.16), who is not only a relative of the deceased but had seen the accident from such a distance that he would not identify the deceased, and the other aspect which found favour with the learned High Court was that the A.S.-I. who prepared the Mashirnama of arrest in Court stated that he was not sure whether the accused in Court is the same who was arrested by him. Perusal of the record further shows that P.W. Asif Mahmood prima facie has fully implicated respondent No.1 in the commission of the crime. He in his deposition on oath stated as under: ".... I saw at some distance that one wagon which was coming from Karachi towards Hub hit one Vespa Scooter which was going towards Karachi. I reached there within one minute or so and saw that scooter was pinched in the front ladies gate of right side of the wagon, whereas the rider of the motorcycle was lying on the road. I had seen that the driver of the wagon had given a cut towards right side which resulted in this accident. The rider of motorcycle was Muhammad Siddiq. The number of the wagon was 824-468, and its driver was present there." The observation of the High Court about the statement of A.S.-I. that he was not sure whether the accused in the Court is the same, who was c arrested by him, is not supported by the evidence available on record. P.W. 1 Muhammad Afzal, Head Constable (Exh.5) was examined in the Court, who in evidence stated as under: ".... Subsequently, in the evening, time-keeper produced the accused who was arrested by S.-I. Shah Nazar and prepared such Mashirnama. I produce it as Exh.7, it is same, correct and bears my signature. Shah Nazr P.W.6, Sub-Inspector (Exh.17) stated on oath in cross-examination as under:- Suleman time-keeper of the mini bus then produced the accused before me at Police Station Mochko and I arrested him in the presence of Mashirs on preparation of Mashirnama Exh.7, it is same, correct and bears my signature." ".... I do not know whether the accused present in this Court was driving the bus which had hit the deceased. It is incorrect to suggest that I am deposing falsely."

7. The careful examination of the above evidence clearly shows that prima facie observation of the learned High Court is not borne out from the record because the witnesses mentioned hereinabove have not exonerated the respondent. In this view of the matter, the learned High Court had not considered the case in its proper perspective, which has resulted in miscarriage of justice and the observations of the High Court are not supported by the evidence.

8. For the facts, circumstances and reasons stated hereinabove, we allow this appeal, set aside the impugned order, and remand the case to the High Court for its fresh decision on merits after hearing the parties. N.H.Q./F-34/SC Case remanded.