1. ' MUHAMMAD TASNIM, J.---This Criminal Appeal has been filed under section 410, Cr.P.C. Against the judgment, dated 15-1-2007 passed by learned 5th Additional Sessions Judge, Karachi South, whereby the appellant was convicted under section 265-H (ii), Cr.P.C. And sentenced with rigorous imprisonment of three years under section 320 of Qisas and Diyat Ordinance and the accused is directed to pay the Diyat amount equivalent to the market value of the 30630.00 (Thirty Thousand Six Hundred Thirty Grams) of Silver under section 323 of Qisas and Diyat Ordinance to the legal heirs of deceased.
2. ' The facts leading to the present case are summarized as under:-- That on 7-5-2002 at about 1115 hours opposite Bungalow No,47/II,ILane No,26, Phase/VII, Defence - lousing Authority, Karachi accused was driving Lancer car bearing Registration No,E-4594, rashly and negligently and hit one pedestrian namely Liaquat son of Muhammad Waryam who received serious injuries and later on died.
3. ' The case was registered vide F.I.R. No,116 of 2002, under section 320, PPC at Police Station Gizri, Karachi. The challan was submitted on 30-5-2002 and charge was framed on 24-7-2002.
4. ' The prosecution named six witnesses in the challan, but had chosen to examine only four witnesses namely A.S.-I. Qurban Ali (Exh.4), Hassan Gul (Exh.5), Muhammad Kashif (Exh.6), SIP Hameed Khan (Exh.8). Thereafter prosecution closed its side of evidence on 9-7-2003 (Exh.9) and statement of accused under section 342, Cr.P.C. Was recorded on 12-7-2006 (Exh.11). No defence witness was examined.
5. ' Learned trial Judge heard the parties' counsel and after examining the record had passed impugned judgment, dated 15-1-2007 which has been challenged in this appeal.
6. ' Learned counsel for the appellant made the following submissions:--
(I) That the learned trial Court while recording its findings on rash and negligent driving by the appellant did not have any evidence before it, but recorded the findings against the appellant without any evidence.
(II) That alleged eye-witnesses namely Syed Mubarak Shah and Taj Akbar were not examined by the prosecution to establish their case without any shadow of doubt.
(III) That findings recorded by the learned Court below is based upon no evidence.
(IV) That there was no direct evidence connecting the appellant with the charge of rash and negligent driving, the conviction order should not have been passed on the present record.
(V) Learned counsel in the end submitted that no identification parade was held in this case.
7. Learned counsel for appellant in support of above has relied upon following judgment:--
(1) 2006 M LD 616 (Tayab v. The State).
(2) 2004 PCr.LJ 51 (Malik Muhammad Noor Khan v. The State).
(3) 1995 PCr.LJ 68 (Mohammad Asif Khan v. The State).
(4) 1998 PCr.LJ 158 (Mushtaq alias Nikku v. State).
(5) PLD 1959 (W.P.) Karachi 30 (Muhammad Yaqub v. The State)
(6) PLD 1965 (W.P.) Peshawar 104 (Umara Khan and another v. Member, Board of Revenue, West Pakistan Lahore and another).
8. ' As against the above, learned A.P.G. Appearing for the State has supported the impugned judgment. Learned A.P.G. Submitted that the learned trial Court has passed the impugned order after considering the material available before it and the findings are in consonance with the evidence on record. Learned A.P.G. Further invited my attention to the vehicle report, which appears at page No,53 of R & P, and reads as under:-- "mechanical condition of the vehicle found fit Damages. Both H/Light broken, show grill broken, L/side front indicator broken, L/Side bonat dented, L/Side front bumper damage."
9. ' I have heard the learned counsel for the parties and have perused the record. I have examined paper book as also Court file with the assistance of the learned counsel.
10. ' Now taking up the first submission of the learned counsel for the appellant that trial Court while recording its findings on and negligent driving by the appellant did not have any evidence before it. The arguments of the learned counsel seem to be correct.
11. ' The deposition of witness Qurban Ali is quoted hereunder:-- "On 7-5-2002 I was posted as ASIP at PS Gizri and was performing my duties as duty officer at P.S. At about 1225 hours we received message from police control that one injured due to road accident was brought at Jinnah Hospital and an officer was called for legal proceedings. We left PS vide Entry No,18, dated 7-5-2002 at Police Station Gizri copy of which I produce at Exh.4/A and say that it is same and correct. I proceeded to Jinnah Hospital and seeked permission from MLO through my application for recording the statement of the injured but the MLO given his remarks and referred the injured to CMO, who gave his remarks that the patient is not fit to give statement which I produce my application at Exh.4/B and say that it is same, correct and bears my signature and remarks of the CMO. Thereafter I reached at the place of incident and inquired and obtained information about the accident where one security guard namely Habib Shah informed me that one white Lancer car was being drived by one young person while driving rashly and negligently he hit one pedestrian Liaquat, whose name was known later on, and one person namely Kashif took the injured to Jinnah Hospital along with the car driver. Police constable came at the place of incident and informed me that another message was received from police control that Agha Irfan, MLO informed that injured Liaquat aged about 25 years expired in hospital during treatment.
12. ' Thereafter I came to the Police Station Gizri and lodged the F.I.R. No, 116 of 2002 at 2030 hours under section 302 Q & D Ordinance 1979 against accused Albert which I produce as Exh.A-4/H and say that it is same, correct and bears my signature. Thereafter the investigation of this case was entrusted to SIP Ameer Khan. On next date i.e, 8-5-2002 at about 2220 hours we arrested the accused from 11th Commercial Street, Phase-IV DHA and car involved in the present case Registration No,E-4594 white Lancer was also recovered at his pointation from a guarage situated at 9th Commercial Street Phase-IV DHA, Karachi in my presence and in presence of Syed Mubarak Shah by the SIP Ameer Khan, who prepared such memo of arrest and recovery and he obtained my signature which I produce the same at Exh.4/I and say that it is same, correct and bears my signature. The accused Albert present in Court on bail is the same."
13. ' Further the deposition of Hassan Gul is quoted hereunder:-- "On 7-5-2002 I was going towards the defence area 26th Lane from Akhtar Colony. When I reached at 26th lane D.H.A.. Phase-VII I saw that one person was lying on the road in injured condition. One guard took the injured to hospital in a private car. Thereafter police visited the place of incident in my presence and prepared memo. Of place of incident. I produce the same as Exh.5-A and say that it is same, correct and bears my signature.
14. ' Note: At this stage learned D.D.A. For the State requests the Court to declare the witness hostile and seek permission to cross-examine the witness.
15. ' Order: Such permission to cross-examine the witness granted. Cross-examination of D.D.A. For the State.
16. ' It is correct to suggest that police recorded my 161, Cr.P.C. Which was read over to me by you (D.D.A.) and I admitted the contents of the same to be true and correct before you (D.A.A.).
17. Cross-examination to Mr. Kanwer Riaz Ahmed for accused. No cross-examination though chance given"
18. ' Further the deposition of Mohammad Kashif is quoted hereunder:-- "On 7-5-2002 I was running my workshop in the name of `Kashif Autos's situated at Phase IV Defence Karachi. Accused Albert was working in my workshop. One Car No,E-4594 Lancer was brought for its repair. I had instructed the accused to clean the car on which he took the car outside the workshop by derive. After about half hour some people informed me that accident taken place at backside road. I also went to said place. I saw that one person lying injured and above numbered car was parked there and accused was also standing. I and accused took the injured to Hospital in same car. The name of injured was later on came to know as Liaquat. The administration of hospital demanded money for treatment and C.T. Scan, on which I went to take money and handed over to hospital administration who conducted C.T. Scan, but later on the injured died in hospital. Thereafter police arrested the accused and also secured car. Accused Albert present in Court is same who committed this accident."
19. ' And lastly the deposition of Hamid Khan Gul is quoted hereunder:-- "Thereafter on 8th day of May, 2002 I took Syed Mubarak Shah and A.S.-I. Qurban who has lodged the F.I.R., went to arrest the accused on pointation of P.W. Syed Mubarak Shah and got prepared such memo. Which is already available on record at Exh.4-I in presence of eye witness, it is same, correct and bears my signature. Thereafter on the pointation of accused Alber I got recovered the vehicle involved in this case bearing car Registration No,E-4594, which was parked from 9th Commercial Street, Phase-IV, D.H.A.. Thereafter on 10-5-2002 I got inspected the said car through M.V.I., who after inspection the same issued his report. I produce the said report of M.V.I. As Exh.8-C."
20. From the examination of the above quoted evidence of prosecution witnesses it is established on record that no direct or indirect evidence was available before the learned Judge to hold that appellant was driving the vehicle in a rash and negligent manner as neither any witnesses has seen the appellant driving vehicle in rash and negligent manner nor anyone has seen the appellant hitting the deceased on the B road nor any person has seen the accident.
21. ' The case of Tayyab v. State reported as 2006 M LD 616, supports the case in hand, wherein it was observed as under:-- "(10) It is evidence of Barad alone which has been made basis for the conviction of the appellant by the learned trial Court. On examination of his deposition it becomes clear that he too has deposed that he had not seen the appellant driving the bus. It were the people who were heard saying that Tayyab was driving the bus and Ramzan was driving the truck. He has not named any such person whom he heard saying this. Reply of this witness the question put to him by the Court was also not of such standard which could be made basis for the conviction of the appellant for the reason that the claim of the witness that the injured were removed in the same bus has been belied by other evidence on the record."
22. ' In case of Mohammad Noor Khan v. State reported as 2004 PCr.LJ 51, it was observed as under:-- "The alleged eye-witness Azizur Rehman has not stated in his deposition that appellant was driving the car rashly and negligently, witness Zafar Iqbal has not given the particulars of the incident as to how the accident occurred. It is submitted that the most material fact to be considered in this case is as to whether the police personnel were available at the scene of offence and had they been there, they would have first taken the accused in custody and then they could taken any further action in the matter."
23. ' In case of Mushtaq alias Nikku v. State reported as 1998 PCr.LJ 158, it was held as under:- "(12) It is trite and settled law that driving a vehicle at high speed cannot be considered and taken to be rash and negligent act. Modern technology provides for reasonable safeguard of stopping vehicle within known distance and time. For rash and negligent driving, the prosecution is to establish that the driver failed to take proper care by omitting to take some action through which he could have avoided accident."
24. ' In case of Mohammad Yaqoob v. State reported as PLD 1959 (W.P.) Karachi 30, it was also observed as under:-- "As in this case it has not been established that at the time of the accident the accused was driving the car at high speed and no element of rashness or negligence in the driver's conduct has been established, a case under section 304-A has not been made out against him. The case appears to be well within the rule laid down in Mohammad Siddiq v. State (1). This revision application is accepted, the conviction is quashed and the accused, if he is in jail, should be set at liberty."
25. In view of cases cited by the learned counsel for the appellant, it is held that findings recorded by the learned Court below against the appellant was totally based on no evidence which permitted the learned trial Judge to hold that appellant was driving the vehicle in a rash and negligent manner.
26. ' Now taking up the second submission of the learned counsel that alleged witnesses namely Syed Mubarak Shah and Taj Akbar were not examined by prosecution to establish their case without shadow of doubt, though it was bounded duty of the prosecution to examine eye-witnesses in support of their case but they miserably failed to examine the aforesaid two witnesses, hence prosecution cannot taken advantage of its own wrong. With regard to point Nos.3 and 4 raised by the learned counsel for the appellant, it is in light of discussion herein above, the finding recorded by learned trial Judge against the present appellant is wholly without any evidence, hence liable to be set aside.
27. As the case of the prosecution has not been established without any shadow of doubt, in forgoing circumstances, the appeal of the appellant is allowed. Conviction and sentence awarded to him by judgment, dated 15-1-2007 in Sessions Case No,443 of 2002 is set-aside. Since appellant is on bail, he is discharged from the bail bond.