ALL MUHAMMAD Versus STATE

1. Appellant has assailed the judgment, dated 31-3-1997 passed by the learned 1st Additional Sessions Judge, Hyderabad, in Sessions Case No.420 of 1994, whereby he has been convicted and sentenced to undergo rigorous imprisonment for 5 years under section 320, P.P.C. and to pay Diyat of Rs.1,75,000 in default to undergo rigorous imprisonment for one year. If the amount of Diyat is realized, it is to be paid to the legal heirs of the deceased. Hence this appeal.

2. Complainant Muhammad Khan lodged F.I.R. stating therein that he is Darogha at Gaja Sub-Division Tando Muhammad Khan: About 4/5 days ago he was directed to go to Jamshoro Protective Bund, where Abbas son of Mehar, Yar Muhammad son of Abdullah by Caste Hajano, Mehar by caste Baladi, Ramzan and Razi Khan by Caste Tajar were with him. He used to take their services at the protective Bund. On 17-8-1994 at about 1-30 hours, he asked Razi Khan to take care of articles at protective Bund as he alongwith Yar Muhammad and others were going for patrolling towards protective-Bund. At about 02-00 hours one Datsun came from Qassimabad to protective Bund and it was being driven negligently and rashly which crossed them and ran over Razi Khan. They raised cries and asked driver to stop Datsun. Driver after crossing some distance stopped that Datsun. Razi Khan had injuries on head and was bleeding. They enquired name from driver who disclosed his name as Ali Muhammad son of Darya Khan Beharam. They also found that there was no number written on Datsun. There was written Aid v. DW P on Datsun. They also saw that Razi Khan died after some time. Thereafter, complainant leaving the P.Ws. at Wardat went to inform his superiors who advised him to lodge report.

3. After completion of investigation the police put up the challan against the accused.

4. Charge against the accused was framed on 30-1-1995 under section 320, P.P.C. to which he pleaded not guilty and claimed for trial.

5. Prosecution during trial examined Muhammad Khan at Exh.5 who produced F.I.R. at Exh.6. Mashir Ramzan was examined at Exh.7, who produced Mashimama of Wardat, inquest report, Mashirnama of arrest and recovery at Exhs.8 to 10, P. W. Mehar was examined at Exh.11, P.W. Abbas was examined at Exh.12, Mashir Allah Warrayo was given up by the prosecution at Exh.13. Investigating Officer Wazeer Ali was examined at Exh.14, who produced Mashimama of clothes at Exh.15, Doctor Niaz Ahmed was examined at Exh.16, who produced post-mortem report at Exh.17 and thereafter the prosecution closed its side vide statement, dated 21-7-1996.

6. The statement of accused was recorded under section 342, Cr.P.C. at Exh.29 wherein he has denied the case of the prosecution and has taken a plea that he was asked by P. Ws. to shift the said injured to the hospital and then F.I.R. was lodged against him. He has further examined defence witness Muhammad Saleh at Exh.30 and his side was closed vide statement, dated 17-3-1997.

7. The learned trial Court formulated the points for determination as under:---

1. Whether the accused Ali Muhammad while driving the Datsun pickup rashly and negligently had hit the deceased Razi Khan?

8. 2 Whether the deceased Razi Khan died due to the injuries sustained by him in accident caused by present accused?

3. What shout he order be?

9. Having gone through the material available on the record and the evidence adduced by the prosecution the learned trial Court passed the judgment in terms as stated above.

10. I have heard Mr. Hidayatullah Abbasi, Advocate for appellant and Mr. Muhammad Azeem Panhwar, Advocate for A.-G. for State and with their assistance I have gone through the evidence adduced by the prosecution.

11. Mr. Hidayatullah Abbassi has submitted that there is no evidence with the prosecution with regard to the negligence on the part of the accused. He has further stated that there is no mens rea and the criminal intent is lacking in the matter. In support of his contentions he has placed reliance on 1996 PCr.LJ 504, PLD 1975 Karachi 723 and 1999 MLD 1557.

12. On the other hand Mr. Muhammad Azeem Panhwar, Advocate for A.-G. for State has not supported the contentions raised by Mr. Hidayatullah Abbasi and supported the impugned judgment.

13. I have given patient hearing to the learned counsel for the parties and have gone through the material available on record and so also the evidence. I have carefully examined the evidence and nowhere it has been shown by the witnesses that absolute negligence was on the part of the accused and case of rash and negligence is not being proved by the prosecution. Driving a vehicle at high speed---Not an offence in itself-- "Word rashness "---Does not necessarily point to high speed but has an element of negligence also approximate speed in a particular area, to be established, in view of quantum of traffic in that area. In the present case nowhere it has been said by the prosecution witnesses that what was the approximate speed on the part of the appellant while driving the vehicle. It is the duty of the prosecution to prove negligence and rashness on the part of the accused exclusively but in the present case this factor is lacking. I have also taken into consideration the evidence of the defence witnesses produced by the appellant namely Muhammad Saleh who has deposed before the trial Court that he is Sub -Darogha in Irrigation Department and at about 12-15 in the night time present appellant came and he asked him to stop Datsun which he was driving but he did not stop Datsun. He further saw at some distance some other employees of Irrigation Department stopped Datsun and one person who had died was taken in Datsun. On the next day he was informed that the present appellant has been challaned in the above crime. Admittedly the learned trial Court has not taken into consideration the defence evidence and has totally ignored. The statement of the appellant under section 342, Cr.P.C. has not been taken into consideration by the trial Court who has stated specifically that he was driving the Datsun and complainant Muhammad Khan signaled him', to stop and asked him that one injured is to be, shifted to hospital and he was taken to hospital and thereafter the complainant party lodged F.I.R. against him. The conduct of the complainant party at the place of Wardat also appears to be dubious in view of the evidence adduced by the prosecution. Prosecution has failed to prove negligence and rashness on the part of the accused and there is a doubt against the appellant.

14. In view of the aforementioned law cited by Mr. Hidayatullah Abbassi, Advocate for appellant having no criminal intent in the case. I am of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. I gave him benefit of doubt. His conviction and sentence are set aside. In result the appeal is allowed. The appellant is on bail whose bail bond and surety stand discharged.

15. H.B.T./A-261/K Appeal allowed.