1988 PLP r (PCRLJ)

Date of hearing: 7th July, 1987. This revision application calls in question the judgment of the learned Second Additional Sessions Judge, Karachi (East), dated 10‑2‑1987, dismissing the applicant's appeal against his conviction by S.D.M. Malir, Karachi under section 304‑A, P.P.C. and sentence of S.I. for one year and a fine of Rs.1,000 in default further S.I. for three months. The applicant allegedly was driver of a van which was being used for transportation of P. A. F. Officers from Malir Cantonment area. On 22‑6‑1973 at 01‑30 hours, the applicant allegedly drove his van in a rash and negligent manner and dashed against the gate of a check post barrier situated in Malir Cantonment injuring one Lance Naik Muhammad Ashraf who at that time was standing behind the gate and who later succumbed to the injuries received by him. Consequently, the applicant was arrested and booked under section 304‑A, P.P.C. before the learned S.D.M. Malir. The prosecution examined nine witnesses and the applicant examined one witness in his defence and thereafter, by judgment, dated 4‑2‑1978, the learned S.D.M. convicted the applicant and sentenced him to undergo S.I. for one year and to pay a fine of Rs.1,000 or in default, to undergo further S.I. for three months. The applicant then filed appeal before the learned Court of Sessions but unsuccessfully as his appeal was dismissed vide judgment passed by the learned Second Additional Sessions Judge, Karachi (East), dated 10‑2‑1987 and hence the present revision. I have heard Mr. Habibullah Samo, learned counsel for the applicant and Mr. M.A.I. Qarni, who appeared for the State. Mr. Habibullah Samo has assailed the judgments of the two learned Courts below contending, that some material witnesses who admittedly were present at the scene of occurrence have not been examined by the prosecution which raised adverse presumption against it under section 114 of the Evidence Act and that the version of the defence which has gone unrebutted should have been believed by the two learned Courts below. The learned counsel has supported his first contention with two judgments reported as Mohammad Ashraf v. The State P L D 1968 Lah. 694 and Khanzada Mir v. The State P L D 1979 Pesh.

215. In both the cases it was held that failure to examine important witnesses could justify drawing of adverse inference by the Court against the prosecution. In the Peshawar case it was held that the prosecutor was bound to call all eye‑witnesses mentioned in the F.I.R. unless he has reasons to believe that the witnesses are not likely to speak the truth or are unnecessary or a witness is himself an accomplice. It may be pointed out that P.W.6 has mentioned the names of three witnesses, namely Jamadar Mohammad Afzal, Jamadar Ghulam Khan and Corpl. Mohammad Nasir as eye‑witnesses of the incident, but they have not been examined by the prosecution. The first two are stated to be on duty at the check post alongwith the deceased and the third one is stated to be sitting in the van alongwith the applicant at the time of the incident. No doubt, these witnesses could have been material witnesses in the case and it is very strange that they were not examined by the prosecution in support of its case and instead only two other eye‑witnesses were examined who admittedly were inside the guard room at the check post from where they saw the alleged incident. In Taj Mohammad v. The State 1979 P Cr. L J 985 when the prosecution had failed to examine occupants of the bus involved in an accident, it was held that the case against the accused for rash and negligent driving had not satisfactorily been established. However, that was an appeal and in case of a revision the powers of re‑appraisal of evidence are of a restricted nature. Be that as it may, but turning to the argument of Mr. Samo, although I agree with him that non‑examination of three material witnesses in the case by the prosecution does invite adverse inference as pointed out above, however, such inference is rebutable. Admittedly the prosecution has examined two other eye‑witnesses who have stated that the applicant drove the van rashly and negligently and dashed against the gate of the check post and also hit the deceased causing injuries to him as a result of which he later died in the hospital. Besides this there is other circumstantial evidence relied upon by the learned Sessions Court, viz., skid marks left by the van on the road, damage caused to the gate and the barrier at the check post and evidence of the Motor Vehicle Inspector who found the brakes of the vehicle in working order. Consequently if any presumption is drawn as stated above, such presumption has sufficiently been rebutted by the prosecution. The next point urged by Mr. Habibullah Samo that the defence version has gone unrebutted also fails to impress me much as the learned Sessions Court appears to have kept the two versions given by the prosecution as well as the defence in juxtaposition and then come to a conclusion that the‑ case of the prosecution against the applicant has been established. According to the statement of the applicant before the learned trial Court, the barrier had been dropped by the deceased guard at the time while the van was approaching the check post and that caused the accident. The statement of the applicant is also supported by the defence witness examined by him who claimed to be sitting in the van with the applicant at the time of the incident. No doubt, the evidence of the defence witness not challenged in his cross‑examination by the prosecutor on the point, but in view of the evidence given by the prosecution witnesses the learned Sessions Court has found the prosecution version more worthy of credence. It may be pointed out that this Court can interfere with the judgment of the appellate Court if the same appears to be absurd or perverse which, in my opinion, does not appear to be the case here. For the aforesaid reasons, I do not find that any interference with the judgment of the learned Sessions Court is called for. A valuable life has been lost owing to the act of the applicant and the sentence awarded by the learned trial Court does not appear to be excessive or unreasonable, keeping in view the circumstances of the case. I, find no force in this revision and the same is dismissed. The appellant is on bail. The bail bonds are cancelled and the appellant shall be taken into custody forthwith to serve out the remaining sentence. S. G . D. /A‑203/ K Revision disallowed.