2019 PLP 2788 (YLR)

ZULFIQAR AHMED KHAN, J.

Through instant Criminal Appeal, appellant Anwar has impugned the judgment dated 30.01.2015, passed by learned 1st Additional Sessions Judge, Badin. In terms of the said judgment, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of (07) years and to pay diyat amount equivalent to Rs.21,000,00/- to the legal heirs of the deceased and in case of failure to pay the Diyat amount, he was directed to be kept in jail as convicted till realization of Diyat amount. The appellant was also convicted and sentenced to undergo R.I. for three years as "Ta'zir" for committing an offence punishable under Section 337-G, P.P.C.; R.I. for one year for committing an offence punishable under Section 427, P.P.C. and to pay Rs.20,000/- as fine (or undergo another period of 3 months rigor imprisonment if he failed to pay the said fine amount). Benefit of Section 382-B, Cr.P.C. was also extended to him.

2. Concisely, facts of the present case arisen out of FIR No.06 of 2012 are that on 02.02.2012, complainant ASI Fazal Ali Junejo was Duty Officer at P.S. and a person namely Meharuddin Mari informed him that an accident between a Van and Tractor Trolley had taken place at Fazli Farm on Golarchi Badin Main Road wherein numbers of people have been injured. Thereafter, when complainant reached at the place of incident, he saw both the vehicles standing on the western side of the road and both the drivers have made their escape good and came to know that injured were shifted to Taluka Hospital Golarchi. Thereafter, complainant went to said Hospital where he came to know that two persons namely Manjhi son of Dodo Naherio and Jani son of Wali Muhammad have lost their lives in such accident.

3. It appears that charge was framed against the appellant on 16.03.2012, to which he pleaded not guilty and claimed trial, whereas the driver of the Tractor Trolley was shown in column No.2 of Challan.

4. In order to establish their case, the prosecution examined PW-1 / Abdul Khalique (Exhibit-4). PW-2 Ahmed (Exhibit-6). PW-3 Moorji (Exhibit-7). PW-4 Superban (Exhibit-8). PW-5 Ashique Ali (Exhibit-9). PW-6 Dr. Muhammad Siddique (Exhibit-11), who produced the police letter, death certificate of deceased Muhammad alias Jani, Death certificate of deceased Manjhi son of Dodo Noherio, Provisional Medical Certificates of injured Ahmed, Superban, Ghulam Qadir, Morji, Ashique Ali, Shafi Muhammad, Samsan, Abdul Hussain (Exhibit-11-A to 11-K) respectively. PW-7 Complainant ASI Fazul Ali (Exhibit-12), who produced the entries Nos.21 and 16, letter to M.O. and FIR (Exhibit-12-A to 12-C). PW-8 Shafi Muhammad (Exhibit-13). PW-9 HC Nazar Muhammad (Exhibit-14), who produced the memo of injuries, memo of place of incident and seizer of tractor trolley and van, memo of arrest of accused Muhammad Ishaque and recovery of driving license and memo of arrest of accused Anwar and recovery of driving licenses (Exhibit-14-A to 14-D). PW-10 Muhammad Salam I.O. of the case (Exhibit-15), who produced the rough sketch of vardat and letter to M.O. (Exhibit-15-A and 15-B). However, PWs Ali Bux and Samsun could not be examined as they shifted to some unknown place therefore, could not be served as per statement of process server SIP Imdad Hussain (Exhibit-18). After closure of the side of the prosecution under the statement of DDPP (Exhibit-19), the statement of the accused was recorded under Section 342, Cr.P.C. In his statement, the accused denied all the allegations levelled against him by the complainant and claimed his innocence.

5. At the very outset, the learned counsel for the appellant has contended that the accused is innocent and has falsely been implicated in the present case. Per counsel, the main accused who was responsible for causing such a heinous accident, was the driver of the said Tractor Trolley, who parked the same in the middle of the road, but he was let off by the police.

6. Learned Additional Prosecutor General Sindh submitted that in this matter besides charge, as well as, statement of the accused under section 342, Cr.P.C. have not been framed and recorded in accordance with law, as such, whole evidence brought on record is against the facts and law, therefore, he submitted that the impugned judgment may be set-aside and the case be remanded to the trial court for de novo trial from the stage of framing fresh charge considering all the facts involved in the case and thereafter parties may lead evidence, if they desired so, in accordance with law. In support of his contention, the learned APG has referred the section 232, Cr.P.C., which reads as under:- "

232. Effect of material error. (1) If any Appellate Court or the High Court, or the [Court of Session] in the exercise of its powers of revision or under Chapter XVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge by any error in the charge, it shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. (2) If the Court is of opinion that facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

7. I have heard the learned counsel for the appellant as well as the learned D.P.G. and examined the record with their able assistance.

8. To me, while proceeding with the trial as well as delivering the impugned judgment, the trial Court has failed to frame the charge in accordance with the contents of the FIR as well as the manner in which the incident occurred because it is alleged that the Van was being driven rashly but no one has seen or reported as to what was the speed of the Van at the time when it was hit the Tractor Trolley, which was standing in the middle of main highway without giving any cautionary signal by its driver/cleaner or other person. The question as to whether the Van was travelling within the speed limit as prescribed is also not brought to record. A list of circumstances, creating doubts is reproduced in the following:-- a. It is an admitted fact that while there is allegation that the Van was being run in rash and speed, but no one has seen or reported the speed with which it hit the Tractor Trolley. b. The question as to whether the Van was travelling within the speed limit prescribed on highway is also not brought to record. c. Whether the Driver of the Tractor Trolley who parked the Tractor Trolley on the main road on account of tyre puncture, took necessary precaution to side line itself and to park the vehicle and Trolley away from the Main Road? d. Whether for the Trolley which was laden extraordinarily, did the driver of the said Tractor Trolley had a valid license to drive such Trolley or not? e. Whether the provisions of National Highway Motor Vehicle were applicable in the circumstances of the case (which have not been examined by the trial Court). Apparently, the trial Court had failed to consider this aspect of the case that if the Trolley as laden with the Thudi was not parked on the road, this incident would not have had taken place. f. The name of the driver of the trolley namely Ishaque was put in column No.2, and was let off without any deposition and he was even arrested 8 days after the date of the incident; neither he showed his original license nor original papers / documents of the Tractor Trolley when the trolley along with tractor was produced before the Court.

9. It is also a cardinal principle of criminal law that it is the obligation of the prosecution to prove its case beyond a reasonable doubt against the accused and any benefit of the doubt must go to the accused as of right and not as of concession. In this respect reference is made to the case of Tariq Pervez v. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has observed as follows:- "It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

10. Furthermore, it was recently held by the Hon'ble Supreme Court in the case of Hashim Qasim v. State (Criminal Appeals Nos.115 and 116 of 2013) dated 12th April 2017 in respect of the benefit of doubt at para 20 by reference to the case of Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 that even a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts is bedrock principle of justice.

11. In view of the above, I have no hesitation in holding that in this case, based on the reasons mentioned above, the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. There are several circumstances which create doubt and infirmities in the prosecution case. Thus, for the above stated reasons, I am of the view that the prosecution has failed to bring guilt of the accused at home, therefore, while extending the benefit of doubt, the instant appeal is allowed and the impugned judgment dated 30.01.2015 is set aside. Resultantly, the appellant Anwar son of Misri Soomro is acquitted of the charge. He is in custody. He shall be released forthwith if not required in any other custody. SA/A-69/Sindh Appeal allowed.