1995 P Cr (PLP)

The appellant was convicted by the Judicial Magistrate, Section 30, Model Town, Lahore, on 2-5-1.993 under section 320, P.P.C. and was sentenced to undergo rigorous imprisonment for five years and was ordered to pay Diyat in the sum of Rs.1,50,000 to the legal heirs of the deceased in equal instalments of one year and in default he was ordered to be retained in jail until the amount of Diyat was paid. Through this appeal the appellant has assailed the order of conviction and sentence.

2. On 15-11-1990 at 1-10 a.m. Naeem Mahmood son of Muhammad Rafiq resident of 6/R,. Model Town Extension, Lahore made statement Exh.P.A. to Muhammad Sharif S.I. P.W. Police Station Model Town, Lahore at General Hospital, Lahore wherein it was alleged that at 10-30 p.m. the same night (14-11-1990) he, while accompanied by Gul Kaif Butt P.W. resident of 200/R, Model Town, Lahore, were proceeding towards their houses after having their dinner from Central Market. When they reached near the Post Office, Model Town, Lahore, they saw Adrian Aziz coming on motor-cycle No.LOC-6837 from "Ground Wali" Road on the main road. The motor-cycle came on to the road, a Suzuki Car No.LHZ-8200 Which was being driven at a high speed came on and hit the motor-cycle felling the rider thereof. Adrian Aziz received head injury due to fall from the motor-cycle and also received injuries on his person. Per chance a Police Constable arrived and took Adrian Aziz to the hospital. The occurrence was the result of rash and negligent driving of the car by the driver thereof.

3. The Sub-Inspector sent the complaint for registration of the formal F.I.R. and proceeded to the place of occurrence, inspected the spot, took into possession the car and motor-cycle involved in the accident vide separate recovery memos.

4. The injured expired on 15-11-1990 at 7-30 p.m. The father of the deceased made an application that post-mortem of the dead body be not conducted. The pre-arrest bail of Muhammad Asif appellant was confirmed and he was formally arrested acid report under section 173,' Cr.P.C. was submitted against him. The trial Court framed charge under section 319/320, P.P.C. on 13-10-1991, which was put to the appellant. The appellant denied the charge and claimed trial.

5. The prosecution at trial produced Naeem Mahmood P.W.1. He deposed that on the fateful night he was coming from the Central Market Model Town after having dinner in the company of Gul Kaif Butt, P.W. and that when they reached near the Post Office, Model Town, Car No.LHZ-8200 of red colour, Suzuki make, came from the side of the Service Road at a very high speed. Motor-cycle No.LOC-6837 was coming by the main load and was hit by Suzuki from the left side. Both of them had seen the occurrence and came to know the name of motor-cycle rider as Adrian Aziz who was lying there in injured condition. Suzuki car was driven by Asif Khan. The Police Constable came there and took the injured to Ittefaq Hospital. In the meantime the appellant fled away and when they reached Ittefaq Hospital they came to know that the injured had been taken to General Hospital. On arriving at the General Hospital, he met an S.I. and a Constable. The Sub-Inspector recorded his statement Exh.PA., went to the spot, took Suzuki car in possession vide memo. Exh.P.B. and motor-cycle vide memo. Exh.P.C. Both the memos were witnessed by him. A similar statement was made in Court by Gul Kaif Butt P.W.2. Atta Ullah Niazi, Constable No.4856 appeared as P.W.3 and stated that during the night 14 and 15-11-1990 while he was posted at Police Station Model Town, he was on patrol duty in the Central Market from 6-00 p.m. to 10-30 p.m. He was coming alone after performing his duty near the ground of B-Block an accident had taken place involving a motor-cycle and a car. When he reached, he saw motor-cycle rider lying on the ground with head injury. The car was also parked near. He was alone at that time and none else was there. One Army Major passed by the spot in his car and stopped at his signal. The Army Major made his family members get down and in the said car the injured was taken to Ittefaq Hospital and was later referred to General Hospital. The injured was taken to General Hospital in the vehicle of Ittefaq Hospital. The injured was admitted in the Emergency Ward. The doctors brought out the particulars of the injured from his pocket and informed the police station. The witness was declared hostile and was cross-examined by Inspector, Legal and also by the defence counsel. This witness stuck to his guns and refused to name the appellant as the person who was seen driving the car.

6. Tariq Mahmood P.W.4 stated that at about 10-30 p.m. on 14-i1-1990 he was going from the cricket ground of B-Block to the Store Market of A-Block, Model Town. Motor-cycle No.LOC-6837 passed by him on the main road. When the motor-cycle rider reached near the post office, a car coming from the opposite side, of red colour, bearing No.LHZ-8200 which was driven in a negligent manner struck the motor-cycle. The motor cycle rider fell down and received injuries. A Police Constable arrived in the meantime and took him to the hospital. He named the appellant as the person driving the car.

7. Raja Sultan Afzal P.W.5 made a statement that at the time of the occurrence he was accompanying Tariq Mahmood. P.W.4 and saw the accident involving Suzuki Car No. LHZ-8200 and motor-cycle No.LOC-6837. He named the appellant as the driver of the car involved in the accident who fled away, from the spot and that after 5/7 minutes a Police Constable came there.

8. Sub-Inspector, Muhammad Sharif appeared as P.W.6 and narrated the steps of the investigation. He identified the writing of Muhammad Rafiq, Sub -Inspector and the scribe of formal F.I.R. Exh.P.A./1. He was informed at about 8-00/8-15 p.m. by the Moharrar that Adrian Aziz injured had expired. He went to the hospital and on the insistence of the parents of the deceased, he handed over dead body to the parents without the autopsy having been performed. He completed the formality under section 174, Cr.P.C. and after completion of the investigation challaned the accused.

9. Dr. Muhammad Maqsood, Medical Officer appeared as P.W.7 and stated that at 11-20 p.m. Adrian Aziz son of Aziz-ur-Rehman aged about 20 years resident of Model Town, Lahore, was brought to him by Atta Ullah Niazi, Constable No.4856, Model Town, Lahore who was medically examined by trim and he found the following two injuries on his person:-- (i) Lacerated wound of 3 x 1/2 c.m. on the left side of head. (ii) Left ear was bleeding. The injuries according to him were kept under observation and were fresh at the time of examination. He proved the medico-legal report Exh.P.F.

10. The appellant was examined under section 342, Cr.P.C. and he claimed innocence and did not offer to make a statement on oath in his defence. He stated that the car involved in the accident did not belong to him nor he was driving the said car at the time of accident and that he was involved on the basis of suspicion and the police, during the investigation, fabricated false evidence.

11. The learned counsel for the appellant has argued that the P.Ws.1, 2, 4 and 5 had not seen the occurrence. Had they been present at the spot P.Ws.1 and 2 must have taken the injured to the hospital or at least must have accompanied him to the hospital. He contended that the names of P.Ws. 4 and 5 were not mentioned in the F.I.R. and they were introduced only to prove that the appellant was identified at the time of occurrence by these two witnesses. It has been further contended that there was no identification parade to connect the appellant with the occurrence and the appellant, having not been named in the F.I.R., his involvement in the accident was not above reasonable doubt and that it was the duty of the prosecution to collect all the available evidence and identification parade was one of the modes but the same was not adopted. He relied on 1989 P Cr. L J 1344(a), P L D 1994 Kar. 122 (a), 1971 P Cr. L J 925, 1969 P Cr. L J 1228 and 1987 P Cr. L J 643(a).

12. It has also been argued that the witnesses of the occurrence namely Naeem Mahmood P.W.1 Gul Kaif Butt P.W.2, Raja Sultan Afzal P.W.4 and Tariq Mahmood P.W.5 were not truthful witnesses and their deposition do not inspire confidence. I was taken through the evidence of P.Ws. 1 and 2 and I am satisfied that there are very material discrepancies in the evidence of these two witnesses and they contradicted each other on many points. The story by one P.W. of going to the house first and after fetching the motor-cycle to have gone to the hospital is not supported of the other P.W. and this was not a minor discrepancy but was a contradiction very material and relating to the time just after the occurrence which could not have been forgotten by these two witnesses. These two witnesses stated that the vehicles were coming from opposite directions when the occurrence took place. The car is damaged on the left side as was stated in the memo. Exh.P.B. Had the vehicles been coming from opposite directions, the cat must have struck the motor-cycle from its right side and not the left side unless the motor-cyclist went on his wrong side. This Bias not been stated by any of the witnesses. Exh.P.A. appears to have been interpolated in line six of the statement where some word was rubbed off but was slightly visible. I had the benefit of looking into the carbon copy thereof and it had clearly shown that the word earlier written was "PECHAY" which was rubbed in the original and was substituted by "SAMNAY". The learned counsel for the parties and the learned counsel for the State were shown the carbon copy annexed with the police file. All the three agreed that the original word was " PECHAY ". It was a clear dishonest attempt to improve the case of the prosecution against the petitioner. The investigation had been dishonest in the case and the same is condemned. The manner in which the accident took place was substituted by a different manner and P.Ws.1, 2, 4 and 5 were a party to the fabrication of the evidence with the Investigating Officer. There are other discrepancies also. Moreover, Atta Ullah Niazi, Constable P.W.3 who had in fact taken the injured P.W. to the hospital categorically stated that at the fateful time he was alone and that there was no other person present at the spot. I hold that P.W.1 anti P.W.2 were not truthful witnesses and cannot be relied. P.W.4 and P.W.5 were introduced subsequently and they do not agree with each other on the material points. They were not mentioned in the F.I.R. and their presence at the spot at the time of occurrence was not believable as stated by them. It was too late in the night and no shop was expected to be opened to afford them the luxury of shopping at that late hour in the month of November. The learned counsel for the appellant has challenged the credibility of these witnesses and has relied on P L D 1969 SC 469 (b), 1973 P Cr. L J 448 (b), 1983 P Cr. L J 1487 (c), 1988 P Cr. L J 1492 (b), 1991 P Cr. L J note 182 at p.129(c) and 1984 P Cr. L J 1470.

13. The learned counsel for the complainant and the learned counsel for the State have supported that conviction and hive stated that none of the P.Ws: were interested in the deceased and that there was no reason for the prosecution to falsely implicate the appellant in the case. They also contended that there was not even a suggestion made to the P.Ws. that they were interested against the appellant or that they had any reason to falsely implicate him.

14. I have given my considered thought to the facts of the case as also the documents produced and the oral evidence led to in the trial Court. I have gone through the impugned judgment. The facts as narrated by the prosecution do not inspire confidence. There is sufficient force in the arguments of the, learned counsel for the appellant that the occurrence was not witnessed by any body and that Atta Ullah Niazi, Police Constable arrived at the spot immediately after the occurrence and had not seen the driver of the car at the spot and he, out of his best devotion to his duty took the injured to the hospital with the cooperation of an Army Major who passed by that side in his car, made his family alight from the car and cooperated in transporting the injured to the hospital. In the present state of society, this was most commendable and appreciable an act on the part of the Police Constable and the unknown Army Major. It is pity that the performance of duty by a Police Constable was not appreciated and rather over-zealousness of the Investigating Officer pushed the performance of this Constable to the backyard. What a pity that the Police Constable P.W.3 was condemned as a liar at the trial by Inspector, Legal who was conducting the case. How would any body else perform his duty to the Society so diligently thereafter. The Court cannot overlook this aspect of the case as well.

15. I hold that P.Ws.1, 2, 4 and 5 were not present at the time of occurrence and they have been introduced to support the prosecution case. P.Ws.1 and 2 were the friends of the deceased and P.Ws.4 and 5 had not been able to explain as to how they knew the, appellant previously. Having met once at the house of a third person and thereafter having recognized the said person during the night in the haze of an accident is not believable. They: could have been put to the test of identification by holding an identification `parade. No such identification parade was held and this has caused prejudice to the appellant.

16. I have carefully seen Exh.D.A. and Exh.D.B. These two are the copies of statements under section 161, Cr.P.C. and heading clearly shows that these statements were recorded after the death of Adrian Aziz because offence under section 319/320, P.P.C. was added on 15-11-1990 after 8-00 p.m. They had not made their statements nor they appeared before the Investigating Officer before the death of Adrian Aziz and I hold that they were introduced to strengthen the case of prosecution against the appellant and amounted to fabrication of evidence.

17. Having disbelieved P.Ws.1, 2, 4 and 5, I am left with only one eye witness and he is Atta Ullah Niazi, Constable No.4856 P.W.3. Although he had been declared hostile by the prosecution yet his deposition rings of truth. He was the person who took the injured to the hospital and the taking of the injured by a Police Constable could not be denied by any other P.W. as his name was mentioned in the medico-legal report Exh.P.F., as a person having accompanied the injured P.W. It is interesting to note that Exh.P.F. was also interpolated and the entries were substituted. Aziz-ur-Rehman son of Muhammad Hafiz Khan Sherwani was originally mentioned as the person who was medically examined. Subsequently Muhammad Hafiz Khar Sherwani was struck of and Adrian Aziz was added before Aziz-ur-Rehman and the word " was made into s/o. It was in the evidence of P.W.3 that the doctors had brought out the home address of the injured from his pocket and had informed the police station about the incident and had also informed the police station about the address of the injured. P.W.3 was declared hostile by the Inspector, Legal and it is, disgusting to note that the trial Court warned this witness without any reasonable cause. The witness was not confronted with any previous statement nor any contradiction was pointed out. He was lowest police official. I am afraid to remark that the trial Magistrate tried to get the accused (appellant) present in Court identified as the person driving the car at the fateful time. It was after the warning of the Magistrate that a sentence appears as under:-- This sentence does not depict the appellant as it does not identify the accused (appellant) as the driver and I shall not assume that only the appellant was present in Court at that particular time. This P.W. does not involve the appellant as a person responsible for causing the accident.

18. P.W.3 is a police constable. His response to the call of his duty was commendable. He rather observed a pat on his shoulder but unfortunate for him he was condemned as a person withholding the truth. I have no hesitation in holding that he was the only person who reached the place of accident immediately after its occurrence and that the appellant was not seen at the spot even by him. Relying on the evidence of P.W.3 I hold that the prosecution has failed to prove its case beyond any reasonable doubt against the appellant.

19. In view of the above the appeal is accepted, the conviction of the appellant is set aside and he is honourably acquitted of, the charge. The appellant is on bail. He is discharged from the bail bond."

20. This disposes of Criminal Revision No.241 of 1993 as well. N.H.Q./M-1831/L Appeal accepted,