The applicant Mir Zaman was tried by Additional City Magistrate, Court No. X, Karachi; on a charge under section 304-A, P. P. C, and 201, P. P. C. The Magistrate found him guilty of both the offences and convicted the applicant. On the charge under section 304-A, P. P. C., he was sentenced to rigorous imprisonment for two years and also to pay compensation of Rs. 4,000 to the heirs of the deceased person, who lost his life in the transaction. He had also been sentenced to rigorous imprisonment for one year more in case of default in payment of compensation. For the offence under section 201, P. P. C., the applicant had been sentenced to suffer rigorous imprisonment for three months. He preferred an, appeal in the Court of Session which was heard by the 1st Additional Sessions Judge, Karachi, who dismissed the same and maintained the covictions, sentence and the order for payment of compensation. Aggrieved by the Judgments of the two Courts below the applicant has preferred the present revision application. ' I have heard Mr. Muhammad Hayat Junejo, Advocate for the applicant and Mr. Usman Ghani Rashid, Additional Advocate-General for the respondent: Mr. Jalaluddin Baloch, Advocate, has appeared with the Additional Advocate- General.
2. The brief facts of the prosecution case are that on 6-7-1975, the applicant was driving a Mini Bus hearing No. KAZ 9357 and when. He reached near Match Factory, a place within the jurisdiction of New Karachi Police Station, the Mini Bus hit deceased Bashir Ahmed, who was taking his hand-cart on the road. The time of the incident was about 10.30 p.m. Bashir Ahmed received injuries and fell down whereupon the applicant, who was driving the Mini Bus asked the passengers to alight so that he could take the injured to the hospital. Such request of the applicant was acceded to by the passengers and the applicant thereafter placed the injured in the vehicle on the pretext of taking him to the hospital but instead the dead body of Bashir Ahmed was thrown in a jungle in sector 5 within the jurisdiction of the same Police Station. The prosecution story further is that Traffic Constable Fazlur Rehman reached the place of incident and met the passengers who had been alighted from the bus. Amongst these passengers Here prosecution witness Rafiq as Also Muhammad Usman Qureshi and Shakir Ali, the latter two not examined in Court. These three persons are stated to have given the name of the applicant and the number of the vehicle to Traffic Constable Fazlur Rehman, who, however, took no action until the next morning when Mst Karim Bibi, the wife of deceased Bashir Ahmed, met him. Mst. Karim Bibi was taken to the police station where she lodged a report which has been treated as first information' report. The applicant was arrested after one or two days and the vehicle in question was also seized and sent to the Motor Vehicle Inspector, who examined the same and found some dent marks on the frong grill of the vehicle. It was after a lapse of 16 days that the applicant was put to an identification test by witness Muhammad Rafiq and Muhammad Usman Qureshi and Shakir Ali who were the other passengers in the vehicle. While Muhammad Rafiq successfully identified the applicant, the remaining two passengers failed to identify him. After formal investigation the applicant was sent up to stand his trial.
3. The prosecution has examined fourteen witnesses in the case, out of whom the only eye-witness is Muhammad Rafiq. Mst. Karim Bibi is the wife of deceased and the first informant. Zafarullah is the Constable who came to the spot immediately after the incident. Ehsanur-- Rehman is the Motor Vehicle Inspector, Dr. Malik Muhammad Khan had examined and held post-mortem on the dead body. Witnesses Rehmatullah, Qabil Khan and Maqbool Hussain are police officers concerned with the Investigation of this case. The remaining witnesses are formal being the mashirs of inquest report and of scene of occurrence, etc.
4. While the applicant examined no witness in his defence, he pleaded not guilty and stated that he was innocent. He denied that he was driving the vehicle in question and stated that he did not commit any accident.
5. On a reading of the Judgment of trial Court as well as appellate Court one finds that the evidence of Muhammad Rafiq has been believed by both the Courts and I have no hesitation in saying that it was the evidence of this witness alone that has been relied upon for establishing the identity of the offender. Mr. Muhammad Hayat Junejo has, during argu--ments, mainly concerned himself with the evidence of this witness and has urged that his evidence was false or at least unreliable.
I have read the evidence of Muhammad Rafiq very closely and I. Find that his evidence is contradicted by some very glaring circumstances and statements of other witnesses. Muhammad Rafiq has stated that after 5 or 7 minutes of the incident a Traffic Constable, presumably Zafarullah, came to the scene and it was Usman Ali who disclosed the number of the Mini Bus to him. He had also stated that he as well as Usman Ali and Shakir had disclosed their names to the said constable. Usman Ali has not been examined perhaps because he had failed to identify the applicant in the parade. Such statement that Usman Ali disclosed the number of the vehicle to Zafarullah therefore becomes inadmissible. If authority is needed for the proposition reference may be made to the Division Bench Judgment in the case of Khurshid Ahmed v. Kabool Ahmed (PLD 1965 Kar. 356). The doctrine of hearsay clearly hits such statements as are made by a witness in Court, ascribing making of the said statement by a person not examined as a witness or not deposing or adverting to the statement, the making of which is attributed to him, unless of course when section 32 of the Evidence Act covers the case of admissibility. However, Muhammad Rafiq had stated in cross-examination that he had remembered the number of the vehicle and disclosed the same to the police constable, at the time of recording of his statement. This would indicate that Muhammad Rafiq, if at all he had disclosed the number of the vehicle, had done so only at the time of making his statement under section 161, Cr. P. C. What is more that Constable Zafrullah while under examination-in-chief was not even asked a question by the, prosecutor whether the name of the offender and the number of the vehicle was disclosed to him by any person. It would be soon that the statement of Muhammad Rafiq in regard to the name of the applicant and number of the vehicle is an afterthought calculated to improve the case of the prosecution at a belated stage. What is more surprising that Zafarullah, who is a Traffic Constable, took no action whatsoever after, as is stated, having come to know the name of the offender and the number of vehicle. It seems that such disclosure was not made by any person to Zafarullah, as otherwise Zafarullah would have communicated the happening of this event and the identity of the offender as well as the number of the vehicle to some police station even if he had not lodged a report.
While dealing with the evidence of Muhammad Rafiq, it will be of benefit to refer to the contents of the first information report lodged by Mst. Karim Bibi, wife of the deceased en the morning following the incident. In the report, it is stated that since her husband (deceased) did not return home on the night of incident she started searching him and came to a place where she found pieces of wood, which were pieces of the broken "theta" of her husband, lying on the ground. She has gone on to say that she made enquiries from persons and came to know that on the previous night Mini Bus No. KAZ 9357 had over-ran her husband. The report further recites that the people at the scene namely Muhammad Usman, Shakir Ali and witness Muhammad Rafiq told her the circumstances of the incident and further informed bet that Constable Zafrullah had been told about the occurrence.
The identity of such persons has not been disclosed, but she has stated that Muhammad Rafiq was even at that time available at the scene. One is surprised as, to why Muhammad Rafiq should have been present at the scene of occurrence on the next morning and precisely at the time when the wife of the deceased reached the spot in search of her husband. It is not the case of prosecution that Muhammad Rafiq knew Mst. Karim Bibi and already informed her in regard to circumstances resulting in the death of her husband. If that was so, his presence at the scene on the next morning would be understandable but that is not the prosecution case. It seems that Muhammad Rafiq was a got-up witness and has been introduced by the prosecution to sustain the case against the applicant. What is more surprising in regard to presence of Muhammad Rafiq is a statement made by A. S. I. Rehmatullah that it was Mst. Karim Bibi who had given the number of the Mini Bus and the names of the prosecu--tion witnesses in her report. This police officer was asked whether the names of witnesses and the number of the mini-bus were disclosed by the police constable but he denied such a suggestion. There is one other significant revelation in the evidence of A. S. I.
Rehmatullah who has stated that after recording the report he proceeded to the scene of occurrence where he saw all the prosecution witnesses and he recorded their statements there but in the next sentence he has stated that he had not recorded the statement of Muhammad Rafiq.
Regard being had to all such features in the case, I am clearly of the view that Muhammad Rafiq is not a reliable witness. Even the learned Additional Advocate-General has conceded that the conviction based on the evidence of witness Muhammad Rafiq was incorrect.
The next incriminating circumstance is the presence of dent marks on the vehicle in question. The dent marks on vehicles plying in the City of Karachi are a normal feature. There is, however, no evidence that any blood marks were found on or inside the vehicle in question. This circumstances by itself does not carry the, prosecution case any further. I may also state that the owner of the vehicle has not been examined to show whether it was the applicant who was the driver of the vehicle in question.
The learned Advocate for the applicant has also urged anti with substance that rashness or negligence of the driver has not been established. Since I have come to the conclusion that evidence in regard to identity of the offender is not reliable it is not necessary to go into further details.
Looking to the circumstances of this case, I am of the view that the guilt of the applicant has not been established and he has been wrong convicted. I set aside the order of conviction and the consequent sentence and order of payment of compensation. The applicant is acquitted. He on bail and his bonds shall stand cancelled.