' M. NAEEMULLAH KHAN SHERWANI, J.-The way in which this case arises is this. In District Sheikhupura in the revenue estate of village Gujjiana, situate at a distance of ten kilometers from Police Station Khanqah Do gran, there took place an accident on 10-11-2002 at 2-30 p.m. Muhammad Ali, a mule cart driver, was run over by bus driven by Muhammad Bashir-appellant. He died instantaneously at the spot. Qaiser Ali, brother of the deceased reported the matter to the police on the same day to Said Muhammad, S.-I, at 3-00 p.m., who recorded his statement (Exh.PC), on the basis whereof, F.I.R.
(Mark 'A') was drawn up by Muhammad Iqbal A.S-I. (P.W.8) at 3-45 p.m.
2. Theory expounded by Qaiser Ali- complainant is that on the fateful day at 2-30 p.m., he along with Ahmad Ali, Muhammad Ali, his brothers, and Wary am, his paternal uncle, after loading paddy crops from field of Sultan Ahmad son of Kameer on mule cart left for village Gujjiana. They were about to get on the metalled road, when mule cart stuck up. Muhammad Ali went to the road side after alighting from the cart. Muhammad Bashir- appellant driving Bus bearing No, 7175- LEO in a rash and negligent manner came from side of Gujjiana. Muhammad Ali was run down by the bus, which resulted into his spontaneous death. Driver took to his heels after leaving behind his bus.
Occurrence took place because of rash and negligent driving of Muhammad Bashir. Besides complainant, occurrence was viewed by Ahmad Ali and Muhammad Waryam P.Ws. In its entirety.
3. This event remained under investigation with the police. Thereafter, complainant side invented a new version to bring forward charge of murder against the appellant. Qaiser Ali-complainant (P.W.
4) instituted a private complaint (Exh.PF) by overhauling the F.I.R. Version. In his complaint, he alleged following facts:-- ' That when mule cart was about to get on the metalled road, some bags of paddy crops fell on the ground from the cart, as Kucha path was in bad shape or damaged. The cart got on the metalled road and came to a standstill. He along with other witnesses made an effort to bring the mule cart under control because it had already gone out of control. They also made an attempt to reload paddy crop bags. The deceased was standing in the middle of the road while catching hold of the cart. In the meanwhile, Bus No, 7175-LEO driven by Muhammad Bashir came from village Gujjiana.
Muhammad Bashir-appellant was blowing horn of the bus loudly. Muhammad Ali signaled the driver to stop his bus. The mule cart due to blowing of horn went out of control. Muhammad Bashir- appellant came near Muhammad Ali and stopped the bus. He not only grappled with Muhammad Ali, but also hurled filthy abuses to him. Muhammad Ali also paid him in the same coin.
' Complainant and other witnesses intervened and told Muhammad Bashir to take his bus from side of the road as the mule could not be controlled. Muhammad Bashir told them that about 14/15 years before he had run over his father at that very place and he suffered no harm and this time he too would suffer death at his hand. He then suddenly got into the bus and run over Muhammad Ali.
Passengers on board of the bus also viewed the occurrence.
' Complainant further alleged that Muhammad Bashir was aggrieved of the abuses having been given to him and for that reason committed this murder by means of bus. Even 14/15 years before, father of the complainant also met death at the hands of the appellant, as he was driving the vehicle in a rash and negligent manner. Muhammad Bashir was pardoned by them. The said incident was not reported to the police. His chief grievance now set in the complaint is that the police had obtained his signatures on a blank paper after hearing facts narrated by him and then he was told that the case would be registered on the arrival of S.H.O. After few days of the occurrence, he came to know that case has been registered under section 322, P.P.C., which was further amended to section 320, P.P.C.
4. Learned trial Judge after recording preliminary statement of the complainant and getting inquiry under section 202, Cr.P.C. Conducted by a learned Judicial Magistrate, framed charge against the appellant. It was put to him, to which he pleaded not guilty and claimed to be tried.
5. The prosecution was called upon to adduce the best available evidence to substantiate charge against the appellant. In compliance of said direction, the prosecution ventured to produce as many as eight witnesses, namely, Dr. Khalid Javaid (P.W.l), Jaffar Ali, constable (P.W.2), Shabbir Hussain, S.-I. (P.W.3), Qaiser Ali- complainant (P.W. 4), Ahmad Ali (P.W. 5), Nasrullah (P.W.6), Muhammad Aslam (P.W.7) and Muhammad Iqbal, A.S-I-. (P.W.8).
6. Thereafter, the appellant was examined under section 342, Cr.P.C. During course of which he proclaimed his absolute innocence in the matter. He alleged his false involvement in the case. He did not opt to make statement on oath under section 340(2) Cr.P.C. In disproof of accusations brought against him. He opted not to produce evidence in defence.
6. (sic) Upon culmination of trial, the learned trial Judge, by virtue of his judgment dated 23-4- 2003, found the appellant guilty of the charge, convicted him under section 320, P.P.C. And sentenced him to suffer rigorous imprisonment for five years with further direction to pay Diyat amounting to Rs,2,90,372 to legal heirs of the deceased within three years and in case he fails to do so, he shall undergo simple imprisonment till final payment thereof.
7. The appellant by filing Criminal Appeal No, 764 of 2003 has called in question conviction and sentence passed against him by the said learned Judge, whereas the complainant has preferred Criminal Revision No, 837 of 2003 seeking enhancement of sentence awarded to the convict to the maximum provided under the law. I propose to dispose of both these matters together through this single judgment.
8. Learned counsel for the appellant strenuously argues that the complainant brought about a drastic change in facts and circumstances of the case mentioned in the F.I.R. By stating that as a matter of fact it was not recorded on his statement; that murder story fabricated by him deserves no credence at all; that Ahmad Ali and Nasrullah (P.Ws.5& 6) have furnished hearsay evidence, so no reliance can be placed on their testimony; that in the F.I.R. Thdory of rash and negligent driving was specifically attributed to the appellant and that it makes the whole prosecution version doubtful. Adds that it was an unseen incident and only the related witnesses were set up as eye- witnesses to support false charge of murder against the appellant. Their presence at the place of occurrence is not believable. It is in evidence that many passengers were on board when the bus arrived and some of them were present, but none of them was examined or cited as a witness; that the complainant failed to produce any one of them to corroborate his version. Further adds that Dilawar Hussain, Saleem, Waryam and Maleh Khan P.Ws. Were given by the prosecution. They should have been summoned as Court witnesses. According to him, it has not materially prejudiced his case and if on this short ground the case is remitted to the trial Court, then the appellant would suffer additional expenses and agony of protracted trial proceedings. He simply prayed acquittal of the appellant because rash and negligent driving by the appellant has not been proved.
9. Learned counsel for the complainant was called many a times since morning. Even information about hearing of this matter was sent to his office and bar room, but he failed to appear. He did not have the courtesy to send any information to this Court with regard to his nonavailability to argue his version petition, wherein only prayer for enhancement of sentence has been made.
10. Facts and circumstances revolving around this matter have been carefully examined. The complainant changed his F.I.R. Version just to accuse the appellant for the murder of his brother Muhammad Ali. It may be seen that mule got out of control prior to arrival of the bus and when the bus drew near, horn was blown by the appellant, which produced bad effect on the mule. The appellant did not intend to kill Muhammad Ali nor it could be shown by the prosecution that the bus was driven at a high speed in a rash and negligent manner. This fatal accident happened because of mule going out of control and blockade of metalled road. In these circumstances, no case for enhancement of sentence is made out. Accordingly, this revision petition is dismissed.
11. Learned counsel for the State submits that appellant was rightly adjudged guilty by the trial Court under section 320, P.P.C. And punishment provided is proper and adequate. He also submits that Waryam given up eye-witness is brother of the complainant and the deceased. Had he been produced by the prosecution, he was bound to support the prosecution story and nonsummoning of Dilawar, Saleem Waryam and Maleh Khan by the trial Court as Court witnesses have not caused any prejudice to the case of appellant, so remand of case will not serve any useful purpose to the cause of prosecution. It would be an exercise in vain producing no good result in favour of the prosecution.
12. I have attentively heard and considered respective arguments of learned counsel for both the sides. I have also gone through the record with their able assistance. In the instant case, complainant had come to know few days after registration of the^F.I.R. That same had not been recorded by the police on the basis of real facts narrated by him. He did not approach hierarchy of police to make a compliant against conduct of the investigating agency. He kept mum. He brought this complainant on 11-12-2002, whereas the incident had taken place on 10-11-2002. There is no material to prove accusation of fabrication of a false story of F.I.R. The appellant was not available to the police and only the complainant side had established contact with the police, which had no animosity with the complainant side. Some mastermind was pulling the wire from behind the curtain. The complainant filed this complaint in absolutely false premises by introducing polluted facts to convert nature of the offence alleged to have been committed by the appellant. A large number of deliberate dishonest improvements have been effected by the complainant just to accuse the appellant of murder of Muhammad Ali. The original story furnished by him in the F.I.R.
Seems natural and probable. According to F.I.R. Version, the appellant was driving the bus at a great speed in rash and negligent manner and dragged the body of the deceased to a considerable distance.
13. The appellant has denied the allegations in their entirety. He failed to plead any version of his own. In these circumstances, no weight can be given to his statement.
14. I am of the view that the body could be dragged to some distance only when rashness and negligence was involved: It would be highly dangerous to place explicit reliance on the dishonest deliberate improvements effected by the complainant and witnesses, which were simply meant to convert accident caused by rash and negligent act of the appellant to that of murder. The complaint appears to have been Bled in an absolutely false premises and for this reason the improved statements of Qaiser Ali-complainant, Ahmad Ali and Nasrullah (P.Ws 4 to 6) are disbelieved. Anyhow conviction and sentence of the appellant under section 320, P.P.C. Is held just, proper and adequate.
15. For all these reasons, this appeal is dismissed being devoid of merits.