HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.402 of 2002

 

Present:

                Mr. Justice Nazar Akbar

 

Appellant:                      Muhammad son of Muhammad Yousuf through Mr. Muhammad Khalid, Advocate

 

Respondent:                   The State through Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh

 

Date of hearing                12.10.2015

Date of announcement   15.10.2015

 

J U D G M E N T

 

NAZAR AKBAR, J.--- Appellant Muhammad was tried by learned              1st Additional Sessions Judge, Malir Karachi in Sessions Case No.623 of 2002 for offences under section 320, 337-G, PPC. On conclusion of trial, appellant Muhammad was found guilty, he was convicted under section 320, PPC and sentenced to 5 years R.I. and to deposit diyat amount of Rs.200,000/- to be paid to the legal heirs of the deceased.

 

2.       Brief facts of prosecution case are that on 25.11.1992 at about 0745 hours accused while driving Bus No.P-0074, near Malir Halt, Mehran Medical Complex, hit Suzuki No.KE-0434, in result whereof Syed Gulab Hussain and Syed Bilal Hussain received injuries. Resultantly, due to injuries Syed Gulab Hussian succumbed to his injuries. Such FIR was lodged at P.S. Airport, Karachi, under sections 320, 337-G, PPC.

 

3.       Charge was framed against appellant Muhammad 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 Syed Jamal Hussain at Ex-4, PW-2 PC Rashid Ali Chishti at Ex-8, PW-3   Dr. Amanullah at Ex-9, PW-4 Inspector Sarfaraz at Ex.10. Thereafter, learned DPP closed prosecution side vide his statement dated 11.11.2002 at Ex-11.

 

5.       Statement of appellant/accused Muhammad was recorded under section 342 Cr.P.C. at Exh-12. Accused Muhammad denied the prosecution allegations and stated that he is innocent, PWs have deposed against him due to enmity, they are interested witnesses and police officials. He did not lead any evidence in defence. He also did not examine himself on oath in disproof of 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. Muhammad Khalid, learned counsel for the appellant at the very outset drawn my attention to the contention of DDA mentioned in impugned judgment that statement of eye witness has not been corroborated by any other witness. He has mainly contended that no PW had seen the appellant while driving the bus rashly and negligently. He has also pointed out contradictions in the prosecution evidence and argued that PW-1 Syed Jamal Hussain had deposed that incident occurred between 07:00 a.m. to 08:00 a.m., PW-2 PC Rashid Ali Chishti had deposed that incident had taken place at 09:00 a.m. PW-1 had deposed that Suzuki was hit from rare side whereas PW-2, the eye witness of the incident, deposed that Suzuki was hit from the front side and neither the Suzuki nor the Bus has been impounded by the prosecution. Lastly, it is contended that from the evidence brought on record, ingredients of section 320, PPC are not satisfied.

 

8.       Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh, argued that appellant was arrested at the spot. However, he conceded to the contention of defence counsel that no PW had seen the appellant/accused while driving the bus 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 above named witnesses. As regards to unnatural death of the deceased is concerned, PW-3 Dr. Amanullah had deposed that he had conducted postmortem examination of deceased on 25.11.1992 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. It is regretted that even an office of road accident has not been tried and prosecuted with seriousness as the question who caused death of deceased is still unanswered.

 

11.     Close scrutiny of the evidence reveals that no prosecution witness had deposed that bus was driven by the appellant rashly and negligently. There are material contradictions in the depositions of PWs. PW-1 Syed Jamal Hussain had deposed that incident took place between 07:00 a.m. to 08:00 a.m. and the bus driven by appellant hit the Suzuki from rare side whereas PW-2 Rashid Ali Chishti had deposed that incident took place at 09:00 a.m. and the Suzuki was hit by the Bus from front side. 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 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 26.12.2002 are set aside. Appellant Muhammad is acquitted. He is present on bail, his bail bond stands discharged and his surety also stands discharged.

 

                                                                                       J U D G E

Gulsher/PA