KARAM HUSSAIN KALHORO Versus State
KHADIM HUSSAIN TUNIO, J.--- Through this appeal, the appellant has impugned judgment dated 09.12.2009, passed by learned, Additional Sessions Judge II-Khairpur in sessions case No. 25 of 2004 whereby the appellant was convicted under section 265-H(2), Cr.P.C.:
"Convicted under section 320, P.P.C. for committing Qatl-i-Khata of accused; sentenced him to suffer R.I for 5 years and to pay Rs. 20,000/- as Diyat to legal heirs of deceased-.
Convicted under section 279, P.P.C.; sentenced him to suffer R.I for 2 years and fine of Rs. 3,000/- and in default to undergo R.I for one month more-.
Convicted under section 427, P.P.C. for damages to the bike of complainant and sentenced to suffer R.I for 1 year and fine of Rs. 5,000/- and in default to suffer R.I. for two months more."
2. Briefly, facts of the present case are that on 23.08.2004, complainant along with his cousin deceased Hifazat Ali went to Faiz Ganj on Motor-bike in pursuance of some work. At 8:30 a.m. in the morning, they saw a bus in-coming and out of nowhere the bus driver came on the opposite lane while driving over the deceased Hifazat Ali and rammed the bike as well, whereas the complainant, was safe being on the side. P.W. Amir Khan was present on another motor-bike and after the bus hit the bike, the driver came down and disclosed his name to be Karam Hussain upon enquiry by the complainant.
3. After registration of FIR, investigation was conducted, the place of incident was inspected and on completing usual investigation, challan was submitted against the present accused to face trial.
4. After compliance of section 265-H, Cr.P.C. a formal charge was framed against the present accused at Ex.2, to which he pleaded not guilty and claimed to be tried vide plea at Ex.2-A.
5. At trial prosecution examined P.W-1 Dr. Ali Gohar Rajpar at Ex.05, who is a Medical Officer and he produced dead body's examination form of deceased Hifazat Ali at Ex.06 and Post Mortem Report at Ex.07. P.W-2 Mohammad Waris at Ex.08, who is complainant and he produced FIR at Ex.09. P.W-3 Amir Khan Rajpar at Ex.10, who is an eye-witness. P.W-4 Dil Bahar Rajpar at Ex.11, who is mashir and produced inquest report at Ex.12, mashirnama of place of incident at Ex.13 and mashirnama of arrest of accused Karam Hussain at Ex.14. P.W-5 Ali Gul Shar at Ex.15, who is Tapedar of the beat and produced sketch of place of Wardhat at Ex.16. P.W-6 ASI Zulfiqar Ali Shah at Ex.17, who is investigating Officer and thereafter learned D.D.P.P closed the prosecution side vide statement at Ex.18.
6. Statement of accused under section 342, Cr.P.C. at Ex.19 was recorded wherein he denied all the allegations levelled against him by the prosecution. He further claimed that on the fateful he did not drive the subject vehicle.
7. I have heard the learned counsel for the accused, learned DPG for the state and gone through the material available on record.
8. The learned counsel for the appellant has argued that prosecution has miserably failed to prove its case against the appellant; that the impugned judgment is wrong in facts and was delivered without considering the aspects of the case properly; that there is no independent and ocular evidence that may prove the rightful conviction of the appellant; that the prosecution evidence is manipulated, interested and untrustworthy and prays for the acquittal of the appellant.
9. The learned DPG for the State while rebutting the arguments from other side contended that the learned trial court attended to the facts and circumstances of the case in a reasonable manner; that the accused drove the subject vehicle in a rash manner putting in danger other innocent lives, hence refuses to the fact of acquittal of the appellant.
10. According to the prosecution case, the accused was driving his bus bearing No. P-0050 Shikarpur rashly and negligently. In order to prove its case the prosecution examined several witnesses, but two had seen the accused drive carelessly, one namely Dil Bahar who is cousin of deceased PW-4 and PW-3 Ameer Khan. None from the public has been examined by the prosecution. An aspect of the case worth mentioning is that the Motor Vehicle Inspector was not examined during the process of the trial and neither had he examined the vehicle in question, which proves to be surprising and doubtful.
11. At the outset I would like to observe that I am appalled by the investigation, or shall I say the lack of it, that was carried out in this particular case. I may also note that I am of the view that the testimony of PW-3 and PW-4, even if taken to be entirely true only leads to the conclusion that the vehicle driven by the present accused was being driven at a high-speed. This in itself does not mean that the petitioner was driving the vehicle rashly or negligently. Furthermore, the testimony of complainant leads to ambiguities and doubts and, I am afraid, my conscience does not permit me to convict a person under sections 279, 320 and 427, P.P.C. on the nature and degree of evidence that is on record in this case. There are so many questions which remain unanswered. What is meant by high-speed? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? There are questions which remain unanswered pertaining to the motorcyclist who unfortunately lost his life in this incident. Was the motorcyclist on Faiz Ganj? What was his direction of movement? What was the speed of the motorcyclist or was he stationary? Did the motorcyclist suddenly curve into the path of the petitioner's bus? A host of other questions remain unanswered purely because the degree of investigation carried out and the quality of investigation carried out is quite unsatisfactory. It is well known in criminal cases that it is for the prosecution to establish its case beyond reasonable doubt. Unfortunately, in the present case I find that the prosecution has failed to achieve this standard. On the other hand there are grave doubts that the petitioner is at all guilty of the offences for which he has been convicted and sentenced.
12. To constitute the offences under sections 279, 320 and 427, P.P.C., it is necessary for the prosecution to prove that besides over speeding, the driver was also guilty of driving rashly and negligently. It is time honor principle that driving of a vehicle at high speed could not be considered to be rash and negligent act. Modern technology provides for reasonable safe-guard of stopping vehicle within no distance and time. For rash and negligent driving, the prosecution is to establish that driver failed to take proper care by omitting to take some action though which he could have avoided accident. In short, driving a vehicle at high speed is not an offence itself, the word "rashness" does not necessarily point to high speed but has an element of negligence act also approximate speed in particular area, to be established, in view of quantum of traffic in that area. While saying so, I derived strength from the precedents of the Hon'ble Superior Courts, reported in (i) 2001 YLR 3313, (ii) 2007 PCr.LJ 1393 and (iii) 2012 MLD 611, wherein it has been held that;
"Moreso, driving of vehicle at high speed could not be considered and taken as a rash and negligent act because modern technology had provided for reasonable safeguard of stopping the same within no distance and time. The fatum of rash and negligent driving is not proved by expression of these words or expression of 'high speed' alone. The prosecution was supposed to show that when the accident took place, the condition of the traffic or the road was such, which necessitated a slower speed and that the motor car was being driven in an excessive speed keeping in view the quantum of traffic or the road. The record is also silent regarding the fact that the motor car was being driven in violation of the traffic rules, which led to the accident, therefore, could be equated with rashness and negligence. The approximate speed at which the motor car was being allegedly driven by appellant has not been fixed by any prosecution witness to lead to a reasonable conclusion that the same was on the higher side in view of the quantum of traffic and the nature of the road in question."
13. For what has been discussed, in the case at hand, I find that except a bare statement made by PW-3 Ameer Khan and PW-4 Dil Bahar that the vehicle was driven in a high-speed, no attempt has been made to establish that there was any rash and/or negligent act on the part of the driver-accused. Therefore, in my considered opinion, prosecution has failed to establish that death of deceased and injuries sustained by prosecution witness were occasioned by either rash and/or negligent driving of the vehicle or any negligent act of accused so as to attract the offences with which the accused is charged. In the light of the same, this appeal is allowed. Conviction and sentence of the appellant recorded by the learned trial court vide impugned judgment are set aside and he is acquitted of the charge. Appellant is on bail, his bail bond stands cancelled and surety discharged.
JK/K-14/Sindh Appeal allowed.