SHAHID ALI vs THE STATE

1. ' I intend to decide Criminal Revision 390 of 1994 filed by the complainant, Criminal Appeal No,403 of 1993 (filed by Shahid Ali convict) and Criminal Appeal No,387 of 1993 (filed by Nazir Ahmad convict) by one consolidated judgment arising out of the same judgment and F.I.R.

2. The appellants were convicted and sentenced by the Magistrate Section 30, Sargodha vide judgment, dated 22-5-1993 as follows:-- {{DATA UNARRANGED}} Shahid Ali son of under section ) 6 years' R.I. Each.

2. Ghufran Khan 320, Qisas and )

3. Diyat Ordinance, ) 1991.

4. Nazir Ahmad son under section ) Diyat amounting to of Nabi Bakhsh 109, P.P.C. ) Rs,1,70,610 each to ) be paid to the parents ) of the deceased Muhammad Akram. {{DATA UNARRANGED}}

3. The brief facts out of which the aforesaid appeals and revision arise are that on 19-9-1991 at 4 p.m. Muhammad Akbar Ali, A.S.-I. Alongwith, Muhammad Iqbal Constable was present on overhead bridge in connection with official duty. Wagon No,4556/SGF mite from General Bus Stand which was driven by Muhammad Iqbal convict while Wagon 5690/SGF came from city side. Muhammad Iqbal was driving the wagon. Muhammad Akram deceased was sitting on the last seat of that wagon. Shahid Ali convict struck his Wagon No,4556/SGF with Wagon No,5690/SGF as a result of which Muhammad Akram deceased fell due to jerk and sustained serious injuries on his person, subsequently he was died on 26-9-1991. The F.I.R. Was lodged against the convicts under section 320, Qisas and Diyat Ordinance, 1991 read with section 109, P.P.C. At Police Station Satellite Town, Sargodha. The prosecution produced three eye-witnesses namely Muhammad lqbal, P.W.1, Ahmad Yar P.W.2 Muhammad Ejaz P.W.3, Dr. Safdar Mehmood who conducted the post-mortem of the deceased Muhammad Akram as P.W.4 Dr. Muhammad Saleem P.W.7 conducted the examination of the deceased on 19-9-1991, P.W.5 Mistri Muhammad Jamil who submitted report qua the vehicle of convict Shahid Ali. Remaining witnesses are formal witnesses. Appellants in their statements under section 342, Cr.P.C. Denied the allegations and took the stand that they had been involved in the case due to enmity and the sentence of Shahid Ali convict was suspended by this Court vide order, dated 22-9-1993. The convict thereafter, did not enter appearance and nor his counsel entered appearance and bailable warrant of the convict was issued by this Court vide order, dated 9-4-1996. The sentence of the appellant was suspended by this Court vide order, dated 16-6-1993.

5. Thereafter, the appeal was fixed on various dates but neither the appellant nor his counsel entered appearance and non-bailable warrants were issued. Even then the learned counsel of the appellant did not enter appearance. The District Magistrate concerned was directed to implement the order of this Court. The report of the District Magistrate reveals that the whereabouts of the appellant/convict were not traceable. Suspension order was recalled on 6-10-2000. The A.C./Duty Magistrate was directed to initiate proceedings against the sureties who submitted report which reveals that the record qua the sureties was not traceable and proceedings would be taken against the sureties of the convict as and when the record would be traced. The convict filed appeal through Mian Ahmad Sher Lali, Advocate. Mr. Imtiaz Ahmad Lali, Advocate entered appearance on behalf of the learned counsel of the appellant and had given undertaking to argue the case on the next date of hearing as is evident from the order, dated 18-1-2000, thereafter, case was fixed on various dates but the aforesaid Advocate did not enter appearance. In view of the aforesaid circumstances, the question arises whether the appeal of the convict Shahid Ali can be decided in his absence and his counsel. Rana Muhammad Anwar, Advocate is present in Court. He is called upon to assist the Court as amicus curiae. Rana Muhammad Anwar, Advocate submits that it is the duty cast upon the Court to call the record and in case convict and his counsel failed to appear then the appellate Court can decide the appeal in the absence of the convict and his counsel as is envisaged by section 423, Cr.P.C. In support of his suggestion he relied upon the following judgments:-- ' Bakar Ullah Khan's case 1997 SCM R 274, Sikandar Hayat's case PLD 1970 SC 224 and Asif Ali's case PLD 1971 SC 223.

6. ' He further, submits that statement of Muhammad Akbar Ali, A.S.-I., the first informant that incident took place while Muhammad Iqbal was trying to save a cart. He did not say that the accident was on account of the rash and negligent driving of the convict. Ch. Muhammad Yaqoob Sindhu, Advocate of appellant Nazir Ahmad submits that Nazir Ahmad convict was attributed only role of abetment. The wagon in question was being driven by co-convict Shahid Ali Khan driver at the relevant time when it met with an accident resulting in the death of Muhammad Akram.

7. ' Syed Aitsham Qadir, counsel for the complainant submits that eyewitnesses have no enmity with the convicts. The incident took place and Muhammad Akram deceased sustained injuries who subsequently, died on account of the aforesaid injuries. The report of Mistri Muhammad Jameel P.W.5 reveals that brakes, of the vehicle of the convict were not in working order. The medical evidence also supported the version of the eye-witnesses. Sentence of the convicts may be enhanced. The defence failed to bring on record any cogent defence for lesser punishment.

8. ' The learned State Counsel has adopted the arguments of the learned counsel of the complainant.

9. ' I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. The suggestion of learned amicus curiae that in the present circumstances the appeal can be heard in the absence of the convict Shahid Ali or his counsel in accordance with law laid down by the Honourable Supreme Court in Barak Ullah's case 1997 SCM R 274 and relevant observation is as under:-- "It shows that it is mandatory to summon the record for its perusal. Hearing of the appellant or his counsel may be necessary provided they are present before the Court. If the appellant or his counsel intentionally avoids to come to address arguments, the Court may proceed with the matter for its decision on merits in accordance with the law."

10. ' All the P.Ws. Supported the prosecution version in all respects. The learned defence counsel failed to point out any contradiction in cross-examination in the statements of the prosecution witnesses.

11. The prosecution witnesses have no enmity against the convicts. The oral evidence is also supported by the medical evidence coupled with the fact that P.W.5 has stated in his report/statement that brakes of the vehicle of convict Shahid All were out of order. This fact itself establishes the negligence of the convict Shahid Ali who was driving the vehicle with unworking brakes. The witnesses who had seen the accident had implicated the convict. There was rash and negligent driving on the part of the convict which has been established. In arriving to this conclusion I am fortified by State through Advocate-General v. Nabi Bakhsh PLD 1978 Kar.

380. Therefore, the appeal of Shahid Ali convict is dismissed. The role attributed to convict Nazir Ahmad is of abetment. The wagon in question was being driven by Shahid Ali convict at the relevant time when it met with an accident resulting in the death of Muhammad Akram. It is pertinent to mention here that prosecution failed to bring on record any evidence to show that Nazir Ahmad convict had instigated Shahid Ali convict. The prosecution only produced P.W.3 and P.W.4 who simply narrated in their statements that there was some quarrel took place between the deceased and convict but the prosecution as mentioned above, failed to bring on record that Shahid Ali convict committed the offence with the conspiracy of his co-convict Nazir Ahmad, therefore, ingredients of section 109, P.P.C. Are not attracted in the present case. In arriving to this conclusion I am fortified by Amin alias Muhammad and others v. State NLR 1996 Criminal Law Judgements 123. In this view of the matter the appeal of Nazir Ahmad convict is accepted.

12. In view of what has been discussed above, the appeal of as convict Shahid Ali is dismissed whereas the appeal of convict Nazir Ahmad is accepted and the revision petition is dismissed.