HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.310 of 2005

Present:

Mr. Justice Naimatullah Phulpoto, J.

Appellant: Muhammad Islam son of Muhammad Sarfaraz Khan through Mr. Zohaib Hussain Ghumro, Advocate

Respondent: The State through Mr. Abdullah Rajput, A.P.G.

Date of hearing/Judgment 16.09.2015

JUDGMENT

NAIMATULLAH PHULPOTO, J---. Appellant Muhammad Islam was tried by learned V^th Additional Sessions Judge, Karachi South in Sessions Case No.197 of 2002 for offences under section 320, PPC. On conclusion of trial, appellant Muhammad Islam was found guilty, he was convicted under section 320, PPC and sentenced to 10 years R.I. and to deposit diyat amount, equivalent to 30,630 grams of silver, to be paid to the legal heirs of the deceased. In case of non-payment, appellant was ordered to suffer R.I. for one month more.

2. Brief facts of prosecution case are that on 08.03.2002 at about 09:45 hours appellant/accused was driving bus bearing registration No.JA-8887 of Route No.2-D, rashly and negligently at M. A. Jinnah Road, Karahi, near Tower. It is alleged in the F.I.R. that one unknown person was collided with bus of appellant. Resultantly, said person died and F.I.R. was lodged by ASIP Azhar Iqbal at P.S. Kharadar, Karachi South under section 320, PPC. After usual investigation, challan was submitted against accused under section 320, PPC.

3. Charge was framed against appellant Muhammad Islam at Ex-2. The accused did not plead guilty to charge and claimed to be tried.

4. In order to substantiate the charge, prosecution has examined P.W-1 Inayatullah Khattak at Exh-3, PW-2 Shaukat Ali at Ex-4, PW-3 Mughal Ahmad at Ex-5, PW-4 Azhar Iqbal, PW-5 Muhammad Naseem Butt at Ex-8 and PW-6 Hafiz Muhammad Athar. Thereafter, learned DPP closed prosecution side vide his statement dated 25.05.2005 Ex-11.

5. Statement of appellant/accused Muhammad Islam was recorded under section 342 Cr.P.C. Exh-12. Accused Muhammad Islam denied the prosecution allegations and stated that he was standing at Tower. Police arrested him. He did not lead any evidence in defence. He also did not examine himself on oath to disproof the prosecution allegations.

6. The trial court after hearing the counsel for the parties and assessment of prosecution evidence, convicted and sentenced the appellant as stated above.

7. Mr. Zuhaib Hussain Ghumro, advocate for appellant, mainly contended that no PW had seen the appellant while driving the bus rashly and negligently. He has further contended that alleged incident was un-witnessed. He has also pointed out contradictions in the prosecution evidence and argued that PW-3 HC Mughal Ahmed has deposed that incident occurred at 08:45 a.m., PW-1 ASI Inayatullah Khattak has deposed that incident had taken place at 09:45 a.m. Lastly, it is contended that from the evidence brought on record, ingredients of section 320, PPC are not satisfied.

8. Mr. Abdullah Rajput, learned Assistant Prosecutor General Sindh, argued that appellant was found sitting on the driving seat at the time of incident. However, he conceded to the contention of defence counsel that no PW had seen the actual incident and driving the appellant/accused rashly and negligently at the time of incident.

9. I have carefully heard the learned counsel for the parties and gone through the evidence of the above named witnesses. As regards to unnatural death of the deceased is concerned, PW-6 Dr. Hafiz Muhammad Athar had deposed that he had conducted postmortem examination of deceased on 08.03.2002 and found injuries on the person of deceased and stated that cause of death was cardio respiratory failure due to hemmerage shock resulting from hard and blunt injuries on the skull which could be due to road traffic accident. In the cross-examination, unnatural death of deceased has not been disputed. I, therefore, hold that deceased died in the result of injuries sustained by him in the road accident, as described by Medico Legal Officer.

10. Now the point arises, who caused death of deceased. Appellant has been charged for the commission of such offence. PW Inayatullah had deposed that at the relevant time he was performing duties, it was 09:45 a.m. he was present near M. A. Jinnah Road, Karachi, he noticed road accident of a person aged about 24 years with vehicle JA-8887, Route 2-D. He has clearly stated that he had not seen the incident. He has also not seen the appellant while driving the bus rashly and negligently. PW-2 Shoukat Ali has deposed that at that time he was performing his duties as guard at lockup of PS Kharadar, he has also not seen the incident. PW-3 Mughal Ahmed has deposed that he was on patrolling duty at that time along with ASI Inayatullah Khattak, it was 08:45 a.m., police party turned to Tower and saw a mob gathered on the road, dead body was lying there. In the cross-examination he replied that he had not seen the appellant while driving the bus rashly and negligently. PW 4 complainant Azhar Iqbal had deposed that on 08.03.2002 he was in PS Kharadar and was performing his duties. He received information from SIP Inayatullah Khattak through wireless regarding incident. He saw present accused sitting on the driving seat of Bus No.JA-8887 and one person expired in the result of road accident. In the cross-examination, complainant has replied that he has not seen the incident himself. PW-5, SIP Muhammad Naeem Butt, who is investigation officer of the case, has deposed that there is no private witness in the case.

11. Close scrutiny of the evidence transpires that no prosecution witness has implicated the appellant at trial and learned trial Court has recorded conviction against appellant without application of judicial mind. Learned trial Judge has not appreciated the evidence according to the settled principles of law. Finding of trial Court is based upon surmise and not on any evidence. Learned A.P.G. has also conceded that no eye witness of the incident has been examined in this case and no prosecution witness had seen the appellant while driving the bus rashly and negligently. In these circumstances, I have no hesitation to hold that prosecution has failed to prove its case against the appellant. Therefore, appeal is allowed. Conviction and sentence recorded by the trial Court vide judgment dated 20.07.2005 are set aside. Appellant Muhammad Islam is acquitted. He is present on bail, his bail bond stands discharged and his surety stands discharged.

Instant Criminal Appeal is allowed.

JUDGE

Gulsher/PA