TAYYAB vs THE STATE
This criminal appeal challenges the conviction of the appellant, driver of a bus, under sections 320, 337-G, and 427 of the Pakistan Penal Code 1860, arising from a fatal road accident involving a bus and a truck that resulted in the deaths of five passengers sitting on the roof of the bus. The core legal question was whether the prosecution sufficiently established that the appellant was driving the bus at the time of the accident and that he was driving rashly and negligently. The Sindh High Court held that the sole eyewitness testimony relied upon by the trial court was unreliable and uncorroborated, as the witness admitted he did not see the appellant driving and hearsay statements from bystanders lacked necessary corroboration. The court laid down the principle that uncorroborated hearsay evidence regarding the identity of an accused driver, unsupported by reliable eyewitness accounts or circumstantial evidence, is insufficient to sustain a criminal conviction. Consequently, the appeal was accepted and the conviction set aside.
- Can an accused be convicted solely on hearsay statements of bystanders regarding the identity of the driver without substantial corroboration?
- Whether the testimony of an eyewitness who did not actually see the accused driving the vehicle is sufficient to sustain a conviction under sections 320 and 337-G of the Pakistan Penal Code 1860?
- Is the uncorroborated evidence of a sole witness whose material claims are contradicted by the investigating officer sufficient to maintain a criminal conviction?
- Section 320, Pakistan Penal Code 1860
- Section 337-G, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
' MUHAMMAD SADIQ LEGHARI, J.----Appellant Tayyab driver of bus and Ramzan driver of the truck were tried and convicted for offence under sections 320/337-G and 427, P.P.C. By the learned Second Additional Sessions Judge Thatta in Sessions Case No,227 of 1997 vide judgment dated 30- 3-2001, they were sentenced for fOur years' R.I. Each with direction to pay Diyat amount of Rs,9,49,530 to the legal heirs of the five persons died in the result of accident.
2. The facts of the case are that on 8-5-1996 a Bus bearing No,GA 5947 was taking passenger from Karachi to Thatta and a truck QAC8536 loaded with husk/hay was coming from Thatta to Karachi through National Highway. When the vehicles were crossing each other the wooden beams used for support of heavy cloth containing the husk outside the body of the truck struck the passengers sitting on the roof of the bus in the result whereof five persons namely, Noor Muhammad son of Rajjab, Muhammad Hanif son of Mukhtiar Ali and 2 unknown persons received injuries. Out of them four died at the spot and the fifth succumbed to the injuries in the hospital.
3. The information about the accident was given to Gharo Police and S.-I. Muhammad Nawaz rushed towards the place of accident. It is said the people available there told him that Tayyab Rind was driving the bus whereas Ramzan was driving the truck and both of them had fled away leaving the vehicles at the spot. The injured had already been removed to the hospital to Karachi whereas the dead bodies of the four persons were available there. The sub-Inspector prepared the notes of the place of incident and inquest reports of them. He arranged post-mortem of the dead bodies and issued formal letter to the doctor for treatment of the injured. As the injured died in the hospital the post-mortem of his body was got conducted.
4. The Sub-Inspector registered the case at Police Station Gharo being himself complainant on behalf of the State. After the investigation appellant Tayyab and Ramzan both were sent for trial.
The learned trial Court examined mashks Muhammad Shafi, Muhammad Bux, Dr. Ghulam Rasool, Expett Jummo who had examined the vehicles, eyewitness Board and Inspector Muhammad Nawaz.
5. In their statements under section 342, Cr.P.C. Both of the accused denied the allegation of the prosecution. They did not examine any one in their defence.
6. Learned trial Court convicted both of the both accused as mentioned above.
7. They appealed against the conviction separately. Appeal of Ramzan (Criminal Appeal No,64 of 2001) was accepted by this Court and the conviction set aside vide judgment dated 25-4-2002.
Argument in the appeal of Tayyab have been heard.
8. The appellant's learned Advocate has contended that the evidence on the record does not prove the appellant to be driving the bus at the time of accident. In the alternate he has argued that even otherwise it is not proved that the driver of the bus was responsible of driving it rashly and negligently. Elaborating his first contention Mr. Abdul Razzak argued that only Barad is the eye- witness but he too has stated that he did not see the appellant driving the bus. However, the people were heard saying that it were the appellant and Ramzan who were driving the respective vehicles. The learned counsel however, argued that it was night time when the accident happened, therefore, the responsibility lies upon the truck driver who loaded it in such a way that wooden beems were coming beyond the body of the truck. According to him the bus driver was not expected to pre-suppose presence of wooden beems out of the body of the truck in such a way.
9. Learned State counsel has defended the conviction stating that the people available at the spot were heard saying that it was the appellant who was driving the bus and also witnessed Barad has stated that it was the appellant who droved the bus when the injured was removed to the hospital in it. He further contended that it was the duty of the bus driver to drive it carefully and contributory negligence on the part of the truck driver is no excuse. The learned State counsel has further argued that even the judgment of this Court in the appeal of Ramzan speaks that the responsibility lies upon the driver of the bus, therefore, the appellant has rightly been convicted.
10. It is evidence of Barad alone which has been made basis for the conviction of the appellant by the learned trial Court. On examination of his deposition it becomes clear that he too has deposed that he had not seen the appellant driving the bus. It were the people who were heard saying that Tayyab was driving the bus and Ramzan was driving the truck. He has not named any such person whom he heard saying this. Reply of this witness the question put to him by the Court was also not of such standard which could be made basis for the conviction of the appellant for the reason that the claim of the witness that the injured were removed in the same bus has been belied by other evidence on the record. Complainant Muhammad Nawaz S.-I., has stated that when he arrived at the place of incident both of the vehicles were found available there. He further says that the injured was already removed to the hospital. It is also in his evidence that the drivers had fled away. The mashirnamas of wardat produced in evidence also confirms the presence of the vehicles at venue of the offence. Thus, the evidence of Barad about taking of the injured in the same bus and driving thereof by the appellant cannot be accepted safely. Moreover, the defence for cross-examination of witness after the said question was put to the witness by the Court.
11. No doubt the evidence of Barad and Muhammad Nawaz that the people available at the place of incident were heard saying that it was appellant Tayyab who was driving the bus and such piece of evidence can be admissible under the law but that alone cannot be accepted without any substantial corroboration which is lacking in present case. In view of above, the conviction awarded to the appellant cannot be sustained and is hereby set aside. With this order the appeal is accepted. The appellant shall be released if not required to be confined in any other case.