2017 PLP 350 (YLRN)

SHAHNAWAZ TARIQ, J.

Through the captioned Criminal Appeal, appellant Shabbir has impugned the judgment dated 20.03.2000, passed by the Court of learned District and Sessions Judge, Karachi Central, whereby appellant was convicted and awarded sentence under section 320 and 427, P.P.C. for R.I 5 (Five) years in addition to Diyat as permissible under the law. However, appellant was extended the benefit under section 382, Cr.P.C.

2. The relevant facts spelt out from prosecution case are that complainant ASI Waqar Ahmed lodged the FIR on behalf of State on 25.11.1995, narrating that at about 1720 hours, H.C. Muhammad Afreen received wireless message from Dr. Syed Kazim Shabbir, Medico Legal Officer, Abbasi Shaheed Hospital that one Asif son of Shahnawaz has brought a dead body of unknown person who died in a road accident near Enquiry Office, Gulbahar, Karachi, vide M.L.No.4379/95, whereupon he made such entry in Rozenamcha bearing No.42 and proceeded to Abbasi Shaheed Hospital. Complainant completed proceedings under Section 174 Cr.P.C. and handed over the dead body whose name was known as Shahzad Tayyab through his National Identity Card, which was recovered during the search of dead body. Complainant visited the place of Wardat in presence of mashirs and prepared such mashirnama and lodged the instant FIR. After usual investigation, police challaned appellant in the Court to face his trial.

3. Charge was framed against the appellant vide Ex:2, to which he pleaded not guilty and claimed for trial.

4. To substantiate its case, prosecution has examined PW-1 Noor Muhammad vide Ex:4, PW-2 Abdul Mateen Khan vide Ex:6, who produced mashirnama of inspection of dead body, inquest report, Mashirnama of place of wardat and FIR vide Ex:6/A to 6/D respectively, PW-3 Waqar Ahmed vide Ex:7, PW-4 Muhammad Ali vide Ex:8, PW-5 Ikramul Haq, Motor Vehicle Inspector vide Ex:10, who produced motor vehicle accident report vide Ex:10/A, PW-6 Syed Saeed Haider Kazimi, Medico Legal Officer vide Ex:11, who produced postmortem report vide Ex:11/A and PW-7 Muhammad Saddiq vide Ex:12, who produced mashirnama of arrest of accused vide Ex:12/A.

5. Statement of appellant under section 342 Cr.P.C. was recorded vide Ex:14, wherein he denied the allegations and stated that he has been falsely implicated by police. He further stated that at the time of incident another driver namely Asif was driving the mini bus. Appellant neither examined himself on oath under section 340(2) Cr.P.C, nor lead any defence to rebut the allegations.

6. After hearing arguments of learned counsel for the parties, appellant was convicted and sentenced vide the impugned judgment by the Court of learned Sessions Judge, Karachi Central.

7. Learned Counsel for appellant at the very outset contended that appellant is innocent and has been falsely implicated in this case. He next contended that said incident was occurred at 6.30 p.m., but in FIR and medical report, time of incident was mentioned as 16.30 p.m. He further contended that PW1 Noor Muhammad, who is an eye witness of incident and passenger of said mini bus, has not deposed that appellant was driving the bus in a rush and negligent manner and trial Court has failed to take into consideration the cross examination of witness. He submitted that prosecution has merely relied upon the depositions of PWs Noor Muhammad and Muhammad Ali, being eye witnesses of the incident but neither they disclosed their seats numbers nor corroborated statements of each other, as PW Noor Muhammad has deposed that appellant was driving X-3 Mini bus which hit the motorcycle of deceased, while PW Muhammad Ali mentioned the number of said Mini bus as X-10, which is material contradiction regarding the route of Mini buses, but trial Court has ignored the same. He also submitted that statements of two witnesses were recorded under section 161, Cr.P.C. in hospital but their names were not mentioned in FIR. He submitted that neither any identification parade of appellant was held nor name and description of appellant were mentioned in FIR. He relied on the case of Ali Muhammad v. The State (2001 YLR 2313), wherein it was held that statement of accused under section 342 Cr.P.C. had not been considered by trial Court wherein it was stated specifically that he was driving the vehicle and complainant signaled him to stop and asked him that one injured was to be taken to hospital and he was taken to hospital by him but thereafter complainant lodged FIR against him. This case law is quit distinguishable from the circumstances of the case in hand. Learned counsel relied on the case of Muzaffar Ali alias Nannah v. The State (1999 MLD 567), wherein it was observed that occurrence did not appear to have been witnesses by anybody. Driving of vehicle at high speed could not be considered and taken as a rash and negligent act because modern technology had provided for reasonable safeguard of stopping the same within no distance and time. This case law is also distinguishable from the facts and circumstances of the present case, as there are two independent eye-witnesses of the incident in present case. Learned counsel also relied on the case of Malik Muhammad Noor Khan v. The State (2004 PCr.LJ 51) wherein it was observed that prosecution failed to examine any person of the locality and allegedly eye witnesses were police officials but they did not take the accused into custody in the first instance when they saw the incident, but they left the accused to escape from the scene of offence. The case law cited by the learned counsel for the appellant is quite distinguishable from the facts and circumstance of the case in hand, hence not applicable.

8. Learned APG Sindh has strongly supported the impugned judgment and contended that none of the prosecution witnesses has admitted that the alleged incident occurred due to fault of deceased. He further contended that in FIR and medical certificate time of incident is correctly mentioned. He also submitted that correct seat number is no issue while travelling in the mini bus as tickets are not being issued to passengers in Karachi. He also submitted that PW-5 Ikram-ul-Haq, Motor Vehicle Inspector, has deposed that damage was not caused on front side of motorcycle but it was also hit from backside and bumper of left side of mini bus was also found dented. He lastly contended that trial Court has rightly convicted appellant as PWs have never deposed that the appellant was not driving the said mini bus.

9. Heard arguments of the parties and scanned the material available on record. While dealing with the question of guilt of appellant, I would like to have a glance on the iota of evidence adduced by prosecution as follows:-- (i) PW-1 Noor Muhammad has deposed that on 25.11.1995, he had gone to Saddar to purchase cloths for his children and boarded in X-3 mini bus to return his house. He identified appellant to be the same driver of said mini bus and deposed that initially he was driving the bus in a normal speed and condition, but from Lusbella and onward while going towards Nazimabad, he started racing with a bus of route No.2-K. He further deposed that between inquiry office bus stop and petrol pump where the new bridge has been constructed, the accused dashed his mini bus and hit a motorcyclist from the back side. He further deposed that accused stopped his mini bus, and all the other passengers got down and he saw the motorcyclist fallen down on the road and blood was oozing from his nose after sustaining injuries on his head. He further deposed that he, one passenger namely Muhammad Ali and the conductor of mini bus namely Asif shifted the injured to Abbasi Shaheed Hospital, but on the way he expired. He further stated that police had recorded his statement under section 161, Cr.P.C. at hospital on the same day. He further deposed that when mini bus reached near Golimar one or two passengers asked the appellant not to drive rashly and drive the mini bus slow. In cross examination he deposed that he stated before police that from Lasbela appellant started racing with other bus with high speed. He admitted that he had stated before police that deceased sustained injuries due to accident. He admitted that he did not disclose the seat number of mini bus upon which he was boarded. He admitted that appellant was not known to him prior to the incident. He admitted that mini bus hit the motorcycle but he could not say whether the motorcycle was hit from the driver side or from the left side of the driver where passengers were boarded. He was unaware about the speed of mini bus but it was moving in high speed. He admitted that Asif was conductor of the bus. He denied that appellant was not driving the mini bus and Asif was driving the same. (ii) PW2, P.C. Abdul Mateen Khan has acted as mashir of inspection of dead body, inquest report and mashirnama of place of wardat which he produced as at Ex.6-A to 6-C respectively. (iii) PW-3, ASI Waqar Ahmed was incharge duty officer of P.S Gul Bahar on 25.11.1995. At about 5.20 p.m., he received control message from MLO Abassi Shaheed Hospital regarding arrival of a corps at hospital. He proceeded to hospital and inspected dead body of deceased S.M. Shahzad and prepared such mushirnama in presence of mushirs as well as inquest report which he saw Ex.-6-A and 6-B and admitted their contents and his signatures to be same. He visited place of incident and prepared such mushirnama which he saw at Ex:6-C and admitted its contents and his signature to be same. He lodged the FIR which he produced vide Ex:6-D. He denied that incident did not occur due to the fault of appellant. (iv) P.W 4 Muhammad Ali deposed that on 25.11.1995 at about 4.30 p.m., he boarded in mini bus X-10 from Lasbella for going to Baldia Town. On the way, the mini bus in which he was boarded tried to overtake other mini bus in a high speed due to which, the motorcycle which was going in front, was hit by the driver of mini bus. He further deposed that in result of that the person driving motorcycle fell down and sustained serious injuries and blood was oozing. He further deposed that he stopped a Suzuki pickup and shifted the injured to Abbasi Shaheed Hospital. Police came at hospital and recorded his statement and he informed the incident to police. He identified the appellant present in the Court to be the same driver who was driving the mini bus which hit the motorcycle and as a result of which the person driving motorcycle died. He further deposed that he was boarded on third seat in mini bus. He admitted that he stated before the police that the driver of mini bus while overtaking in fast speed hit the motorcycle which was going in front of mini bus. He deposed that said motorcycle was about 1 or 2 feet away from the mini bus. He denied that conductor Asif was driving the mini bus and not the appellant. He denied that the incident took place due to fault of motorcyclist. He denied that he had not witnessed the incident. He denied that he was deposing falsely against the accused at the instance of police. (v) P.W-5, Iqram-ul-Haq, motor vehicle inspector on 27.11.1995 went to P.S Gulbahar and inspected Mazda vehicle No.G.E-2928 and motorcycle No.KAZ-2042 and issued report on the basis of inspection. He produced inspection report vide Ex:10-A and admitted its contents and his signatures to be same. He further stated that both vehicles were mechanically found fit at the time of inspection, whereas the bumper of left side of the mini bus was found dented. While the left side handle and cultch liver of the motorcycle were having scratches. He further deposed that the speed meter, left side and front indicators of the motorcycle were found damaged. He further stated that rare of the motorcycle was also damaged and its battery was also dislocated. He further stated that the rare mudguard of the motorcycle was bent. (vi) PW-6 Syed Saeed Haider, Medico Legal Officer of Abbasi Shaheed Hospital was on duty on 25.11.1995 and at about 0500 p.m., one corps identified as Shahzad Tayab son of S.M.Tayab was brought from the jurisdiction of P.S Gul Bahar. He started the postmortem examination of the crops at 06.30 p.m and finished at 07.30 p.m on the same date. During the postmortem, he found the following injuries on exterior of the person of the deceased:-- Injury No.1:- Abrasion 8.c.m x 6 c.m over left side of face and left side of forehead. Injury No.2:- Abrasion 8.c.m x 10 c.m over left lateral chest worm. Exploration of injury No.1 shows the breast fracture of let fronto temporal bone with laceration of brain matter and meninges over left temporo frontal lobe with fracture of lest interior and left middle cranial fossae. Exploration of injury No.2 reveals fracture of fixed ribs of left side with laceration of left lung. These two injuries are ante-mortem in nature. The probable duration in injuries and death is about 15 minutes and the duration between death and autopsy is about two hours. On the basis of this autopsy the cause of death ascertained by me as Cardio respiratory failure secondary to coma and irreversible haemorrhages shock. As a result of acute head chest injuries caused by some hard and blunt object, resulting from road traffic accident. He has prepared such post-mortem report and produced it vide Ex:11-A and admitted its contents to be correct and same. (vii) PW-7, Inspector Muhammad Sadiq was posted at Gulbahar police station on 25.11.1995 and received FIR along with other documents from ASI Waqar Ahmed for further investigation and recorded 161, Cr.P.C. statements of PWs. On 26.11.1995, he arrested appellant and prepared mushirnama of arrest of accused which he produced as Ex:12-A and admitted its contents and his signature to be same. He also collected report from Motor Vehicle Inspector and postmortem report from the hospital. After completing the investigation, he submitted Challan in Court of law and identified appellant present in Court to be the same. He admitted that P.W Noor Muhammad and Muhammad Ali in their 161 statement did not disclose the hulya of accused. He denied that incident took place as the deceased took turn from wrong side to reach on bridge. He denied that accused was not driving the mini bus. He denied that accused has been falsely implicated in this case.

10. From the above detailed discussion of the evidence, it has established that both eye witnesses were passengers and boarded the same mini bus, while appellant was racing with another bus and plying his bus rashly and negligently, whereupon some passengers also advised him to drive carefully but he did not pay any heed and hit the motorcycle of deceased from backside, resultantly sustained serious injuries. Both the eye witnesses and the conductor of said mini bus namely Asif had shifted the injured to Abbasi Shaheed Hospital, and this factum also corroborates the prosecution case.

11. Admittedly, the locality of the incident is crowded one and the essence of the criminal negligence of appellant is spelt out from the manner of his driving, as due to racing with other bus, while driving his mini bus rashly and negligently, he could not apply break due to high speed even near the newly constructed bridge and hit the motorcycle from backside and the deceased sustained serious injuries which resulted into his death. Both the eye-witnesses identified the appellant in open Court and categorically assigned the role of rash and negligent driving to him. Testimony of prosecution witnesses and all connecting circumstances had established that death of the victim was direct cause of the injuries sustained due to the hit by the bus of appellant. Indeed, occular account of evidence is fully corroborated by the medical evidence which shows that the death of deceased was occurred due to two injuries caused to the deceased which are ante-mortem in nature and as a result of acute head and chest injuries caused by some hard and blunt object, resulting from road traffic accident. Nothing was brought on record to show any animosity of the police as well eye witnesses for false involvement of the appellant in instant case and even eye witnesses have categorically stated that appellant was not known to them prior to the incident. Moreover, the minor discrepancies in evidence of PWs would not be fatal to the prosecution case at the factum of accident and plight of the deceased stood established beyond any reasonable doubt by the ocular evidence, injury sheet of the deceased and the inquest report.

12. It is worthwhile to mention that the contention raised by learned counsel for appellant regarding the difference of time of the occurrence of incident, FIR and medical report is without any legal substance as he has not properly examined the relevant record and there is no such difference and time has been mentioned correctly in all the relevant documents.

13. It is well settled that to establish the offence of Qatl-e-Khata by rash and negligent driving, the basic ingredients for consideration are, firstly, the manner in which the driver was driving the vehicle and, secondly, the precautionary measures adopted by him, while excluding the aspect of vehicle's high speed as under the advanced technology it is not a difficult task to stop a speeding vehicle within a short distance. In the present case, the factum of rash and negligent driving by appellant and non-adoption of the precautionary measures by him have established in view of the facts and circumstances discussed supra. Consequently, prosecution has succeeded to bring the guilt of accused at home beyond any shadow of doubt. The trial Court has neither committed any illegality nor infirmity including defective appreciation of evidence adduced by the prosecution. Resultantly, the impugned judgment does not call for any interference, hence same is maintained and instant criminal appeal stands dismissed. HBT/S-33/Sindh Appeal dismissed