2007 P Cr (PLP)

DOST MUHAMMAD KHAN, J.

At a trial held by learned. Additional Sessions Judge, Karak at Takhti Nasrati, appellant Farmanullah was found gum) for crimes under sections 279/320/337-G, P.P.C. thus, was convicted and sentenced to two years' S.I. plus fine of Rs.3,000 and to pay Diyat to the L.Rs. of the two deceased and two years' S.I. and to pay Rs.1,000 as Daman to Mst. Sarwar and Sohail Khan injured- and Rs.3,000 as Daman to Mst. Hamayun Bibi, Rs.1,000 to Shamim Hazara injured' and Rs.1,000 Daman to Awal Nawaz, Amir Khaniand Wajahat Khan injured each. The sentences were directed to run concurrently. Benefit of section 382-B, Cr.P.C. was extended. The appellant has questioned his conviction and sentences through the instant appeal. Similarly, the appellant has filed Criminal Appeal No.241 of 2007 wherein, he has questioned the acquittal of Manzoor Hussain and Arshad accused which will be decided through separate judgment. Arguments heard and record perused:

2. Brief but relevant facts of the incident 'are that on 1-8-2004 at about 1945 hours on Indus Highway near Ahmad Wala Bridge falling within the jurisdiction of Police Station Takhti Nasrati, a Datsum Pick-up No.9293-BUB, driven by Farmanullah, collided with Tractor No.C?1206-Bannu driven by Manzoor Hussain as a result, two persons died while the rest mentioned above got injured. The Pick-up was also substantially damaged in the accident.

3. The S.H.O. being on mobile duty, rushed to the scene of accident along with police party but he was informed that the victims/deceased have been taken to Civil Hospital, Karak thus he arrived there where he found Mst. Bilqees Bibi and Mst. Itbar. Nisa dead while appellant Farmanullah, Mst. Hamayun, Awal Nawaz, Mst. Shamim Hazara, Wajahat (minor), Sohail Khan (minor), Amir Khan (minor) and Sarwat (baby) in injured condition. Farmanullah appellant reported the matter charging Manzoor Hussain, driver of the tractor, to be the cause of accident because of negligent driving in the middle of the road and because of applying emergency brake without caring that the pick-up driven by Farmanullah was behind him at a little distance.

4. According to Farmanullah appellant, the first informant/complainant, he along with his family members i.e. two deceased and the injured were proceeding to Civil Hospital, Karak to see and inquire about the health of their relative but on reaching the site of the accident, the tractor driven by Manzoor Hussain, applied emergency brake and halted it in the middle of the Highway thus, the Pick-up driven by Farmanullah, collided with it from behind resulting into the casualties. On the basis of report made by him case F.I.R. No.119 was registered on 1-8-2004 for crimes under sections 279/3377-G/320/427, P.P.C. During the course of investigation, Manzoor Hussain filed two applications to S.P. Karak with a prayer to register another case against' the appellant as in his view, it was the appellant; who was responsible for the accident, however, no case was registered on the same.

5. It is interested to note that D.S.P. Investigation basing his opinion on general information, came to the conclusion, that it was Farmanullah appellant, who was rashly and negligently driving the Pick?up, as a result the accident occurred. Such information based on rumours and the LTV licence of the appellant was made ground for substituting the appellant as an accused in the case. The appellant was placed in the column of accused without the permission and sanction of the Illaqa Magistrate. Another person, namely, Arshad was also made an accused in the case.

6. After completion of, investigation, challan was submitted in the trial Court where, besides the appellant Farmanullah, Manzoor Hussain, the tractor driver, and one Arshad were put on trial. It is further interesting to note that all the injured witnesses appeared and categorically charged Manzoor Hussain responsible for the tragic incident whereafter all the, three accused were examined under section 342, Cr.P.C. At the conclusion of trial, Manzoor Hussain and Arshad co-accused were acquitted while the appellant was convicted and sentenced as above.

7. It is shocking to note that the learned trial Judge did not follow the law on the subject and failed to observe due care and caution as to how the complainant was made an accused without proper permission of the Illaqa Magistrate. The trial Judie also failed to peruse the case file with application of judicial mind to see the illegality and irregularity committed by the Investigating Agency while acting in the above manner and also failed to rectify the wrong at the initial stage.

8. The perusal of the entire evidence recorded by the trial Court would show that it was Manzoor Hussain, who was unequivocally charged for causing the accident but despite direct evidence given by the injured witnesses, Manzoor Hussain was acquitted along with Arshad co-accused while appellant was convicted On the basis of self-assumed view and figment of imagination that because the appellant was possessing LTV driving licence and not light passenger transport license and because he did not keep reasonable distance from the tractor as the impact of collision was so heavy that one of the victim was found at point "C" considerably away from the place of accident thus, dissuaded from proper legal course due to fallacious conclusion that the Pick-up was driven by the appellant on a high speed hence the appellant alone was held guilty for the crimes. To constitute offences under sections 279/320, P.P.C. it is' necessary for the prosecution to prove that besides overspeeding, the driver was also guilty of driving rashly and negligently. Reliance may be place

on the view taken in the following precedent law:-- Terence Authority D' Casta v. The State 1969 PCr.LJ 1228, Abdul Ghani v. The State 1975 PCr.LJ 515, Muhammad Afzal v. The State 1975 PCr.LJ 1353, Muhammad Bakhsh v. The State 1976 PCr.LJ 405, Muhammad Akhtar v. The State 1980 PCr.LJ 103.

9. It is well-entrenched principle of criminal justice that no one shall be construed into a crime in the absence of legally admissible evidence. There is no scope or space for basing judicial verdict on surmises and conjectures and even high' presumption. Reliance in this regard may be placed on the view taken by the apex Court in the case of Mian Muhammad Latif v. The State PLD 1966 SC 201.

10. The Court of law in cases of accident in case of collision between two vehicles has to determine many factors because mere high speed cannot be made a ground for presumption that the driver of the said vehicle -was responsible for the accident unless and until it is established in a reasonable manner that besides overspeeding, the driver of the vehicle was found, rash and negligent while driving it. At the same time, the Court has to see the contributory negligence of the driver of the second vehicle as well but in the instant case the trial Judge has conveniently ignored this aspect of the matter and operated the entire .judgment on surmises and conjectures and high presumption ignoring the fact that Indus Highway near and around the spot is of sufficient width and space which indeed is meant for speedy vehicles. Admittedly the tractor driven by acquitted accused Manzoor Hussain, was in the middle of the road and not on its left side. Its driver has failed to observe due care and caution as he without first looking at the side mirror to see as to whether any vehicle was coining behind it, abruptly applied emergency brakes and brought to halt the tractor there and then thus, the appellant could not control the Pick-up to avoid the collision hence, the learned trial Court has unreasonably thrown a load of dust at the appellant without any tangible evidence and at the same time while acting without proper judicial care ignored the evidence furnished by the injured witnesses holding Manzoor Hussain (tractor driver) responsible for causing the accident. The approach of the learned trial Judge does not appear to be a judicial one and in accord with the settled principle of justice. Both the deceased and all the injured were the family members of the appellant while Manzoor Hussain, the tractor driver, did not receive a scratch on his person nor his tractor was damaged to the extent like the Pick-up of the appellant.

11. The site plan Exh.P.W.11/1 clearly tells that the tractor was at the fateful time at point "A" which is the middle of the Highway. This act of Manzoor Hussain, the tractor driver, by itself would amount to negligent driving because he was not using his side of driving (left) thus, he could be held responsible for negligent and rash driving.

12. It has been noticed that tractors are being plyed on the Highways without being equipped with brake lights and other cautions indicators required under the Motor Vehicle Rules and drivers of tractors, who are only accustomed with the use of tractor, in ploughing and levelling agriculture land and have a little knowledge about the Traffic or Driving Rules on Highway. All these, legal aspects besides overwhelming evidence going in favour of the, appellant were altogether ignored rather brushed aside without any just cause. The view taken by the trial Judge that because the appellant was possessing LTV licence and not passenger light transport license thus, he was unauthorizedly driving the Pick-up is simply fallacious because LTV licence can be used for driving light passenger transport vehicle like Pick-up and Suzuki vans but in the instant case the most vital aspect, which was ignored by the trial Judge, is that at the fateful time the appellant was not driving the vehicle by taking ordinary passengers but was accompanied by his family members thus, he cannot be held responsible of using the vehicle for the transportation of passengers. The view taken by the trial Judge, therefore, is deprecated.

13. The learned trial Judge while taking cognizance should have directed the local police to submit a second challan against the appellant but after cancellation of the report and getting sanction from the Illaqa Magistrate for substituting the appellant as an accused, instead of complainant which was not-done at all thus, the entire proceedings/trial held by him was based on an approach having no legal sanction and on this score alone the illegality committed vitiates the entire proceedings/ trial.

14. Apart the legal and factual aspects of the matter, it is established as earlier discussed that all victims including the two deceased were family members/relatives of the appellant and it was the appellant whose family suffered fatal and serious casualties and from this angle too he was entitled to maximum concession but the trial Judge acted to the contrary thus, the conviction of the appellant is absolutely untenable in law and cannot be maintained on any premises whatsoever. For the aforementioned reasons, therefore, this appeal is allowed and the appellant is acquitted of all the charges levelled against him. He be set free forthwith if not required in any other case. These are the detailed reasons for my short order of today. H.B.T./127/P?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.