' MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J.---This appeal is directed against the judgment of a learned single Judge of the Shariat Court dated 20-1-2009, whereby the appeal filed by the appellant against the judgment of the District Criminal Court dated 30-4-2008 was dismissed.
2. The relevant and necessary facts for the disposal of instant appeal are that the complainant, Muhammad Reaz Mughal, S.H.O. Police Station Garhi-Doputta, along with Abdul Rahseed, Ismail and Akhter Hussain, Constable Nos. 492, 207 and 112 respectively, was patrolling in the area called Budhyara. He received an information at 11-30 a.m. That a Jeep met an accident in `Khun- Bandway'. He along with the aforesaid Constables reached at the place of occurrence. He was told that Ghulam Rasool Shah was driving Jeep No,MDQA-138, which was carrying a `baraar. The Jeep met an accident due to the negligence and rash driving of Ghulam Rasool Shah. One person sitting in the Jeep died on the spot and about five/six passengers sustained injuries. The dead body and the injured persons were already taken to CMH Muzaffarabad by the people of the vicinity. The complainant sent a "marasla" to Police Station. Garhi-Doputta for registration of case, upon which a case under sections 320, 337-G and 279 APC was registered against the appellant. After the conclusion of investigation, the police submitted a challan against the appellant in the District Criminal Court Muzaffarabad. On the conclusion of trial the Court found the appellant guilty under sections 320 and 279, APC. He was awarded the sentence of five years rigorous imprisonment under section 320 APC and sentence of `Diyyat' amounting to Rs,10,41,420 under section 323, APC. It was directed by the trial Court that the appellant shall not be released unless and until the amount of Diyyat is paid by him. The trial Court also awarded him the sentence of fine of Rs,1000 under section 279, APC, however he was discharged from the offence under section 337-G by, giving benefit of doubt. Feeling aggrieved from the said order, the appellant filed an appeal before the Shariat Court of Azad Jammu and Kashmir, which was dismissed vide judgment dated 20-1-2009.
The instant appeal has been filed against the aforesaid judgment of the Shariat Court.
3. Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant, argued that the prosecution has failed to prove its case beyond any doubt. The case of prosecution is based on meagre, bleak, desultory and unconvincing evidence. The learned counsel submitted that there is no evidence, which could prove that what was the speed of Jeep at the time of accident. He further submitted that the appellant in his statement recorded under section 265-D, Cr.P.C. Has clearly stated that the accident did not take place due to rash driving, but the "Arm-End" of the Jeep suddenly opened, due to which the Jeep met an accident. Moreover there is sufficient evidence on the record that the four wheels of Jeep separated from the Jeep at the time of incident. He submitted that when all the four wheels of the Jeep were separated, then it was not within the control of any driver to avoid accident or control the Jeep. He submitted that not a single witness of the prosecution could point out that what was the speed of Jeep at the time of accident. He further submitted that even the passengers, who were sitting in the Jeep, could not point out the speed of Jeep. It was stated by various passengers that they jumped from the Jeep at the time of incident. If the Jeep was being driven in a high speed, then how the passengers could jump from the Jeep and survive. It was next submitted by the learned counsel that the judgments of both the lower Courts are not based on strong and cogent evidence, but the same are based on presumptions.
Under law it is the legal duty of the prosecution to prove its case beyond any shadow of doubt and the benefit of any sort of doubt, arising from the evidence of prosecution, shall go to the accused person. The learned counsel further referred certain contradictions among the statements of witnesses and stated that the case of prosecution is self-contradictory. On the one hand it was alleged by the prosecution that the Jeep was being driven in a high speed, which met the accident due to rash driving, while on the other it is claimed by the prosecution that the passengers jumped from the Jeep. According to the learned counsel it was not possible for the passengers to jump from a Jeep when it was being driven in a high speed.
4. While controverting the arguments of the learned counsel for the appellant, Raja Faisal Majeed Khan, the learned counsel for respondents Nos.3 to 11, argued that the judgments of the Courts below are based on sound, cogent and tenacious reasoning, which do not require any indulgence by this Court. The learned District Criminal Court has awarded the sentence to the appellant after considering all the evidence and the learned Judge of the Shariat Court has rightly maintained the same. It was further submitted by the learned counsel that there is complete unison among the witnesses that the Jeep was being driven in high speed at the time of incident. It met the accident due to negligence and rash driving of the appellant. It was further submitted by the learned counsel that initially the Jeep was being driven by one Ch. Riasat Hussain, but the appellant took the Jeep from him and started driving. Due to his negligence and rash driving one person lost his life and the others sustained injuries. Prior to this occurrence the appellant has already committed the offence of accident, therefore, he does not deserve for any leniency.
5. We have heard the learned counsel for the parties, perused the relevant record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties.
6. Muhammad Riaz Mughal, S.H.O. Police Station Garhi-Doputta, appeared as prosecution witness No,
1. He has not seen the occurrence, but he received an information at 11-30, a.m. When he was patrolling towards Badhayara, that an accident of a Jeep took place. He reached on the spot and came to know that Jeep No,MDQA-138 was carrying a 'baraat' and heading towards `Khun- Bandway'. Ghulam Rasool Shah was driving the Jeep, which met an accident. He recovered the Jeep and prepared recovery memo. It was stated by him that due to skid marks on the spot he could say that the accident took place due to negligence, carelessness and rash driving of the driver. It is pertinent to note that this witness has not himself seen the occurrence. When he reached on the spot the accident had already taken place, then how he could ascertain from the skid marks that these marks were of the same Jeep which met the accident. On the road there could be skid marks of various vehicles, but there is nothing on the record that anyone, who was boarding on the Jeep, told him about these skid marks. There is no evidence on the file on the basis of which it could be said that the skid marks were pointed out by any other eye-witness. It is most unfortunate that when he has not himself seen the accident and was not present at the place of occurrence and no one pointed out the skid marks to him, then how he could say that the accident took place due to negligence, carelessness and rash driving of the driver. He also nowhere deposed in the statement that it was told to him by the witnesses that the Jeep was being driven in a high speed. If anyone would have told him, even then his evidence would not have been admissible because it would have been a hearsay evidence and hearsay evidence could not be considered unless and until it is also stated by that person who told him that he narrated the story to him. The evidence of this witness is neither hearsay nor he has witnessed the occurrence, but it is just based on presumptions.
7. Abid Hussain Shah also appeared as a witness. He is the most important witness in this case because he was boarding on the Jeep along with his son and his son died in this incident. His evidence is the most important evidence in the present case. He has categorically stated in the examination-in-chief, on first page in lines numbers 11 and 12, that when the Jeep reached at `Khun-Bandway', the accident took place. His son died on the spot whose name was Hafeez Hussain Shah and four wheels of the Jeep had separated. Now he was the person, who was sitting in the Jeep and whose son died. He has clearly narrated in the examination-in- chief that four wheels of Jeep separated from the Jeep. Why this portion of his statement should not be relied upon? It clearly indicates that the accident took place due to separation of four wheels of Jeep and in such like situation no driver could control the Jeep and it had to meet an accident. It would also not be out of place to mention here that in the instant case it was the basic duty of the prosecution to prove the case by producing the Motor Vehicle Examiner before the Court, who would have stated the position of the vehicle whether it met the accident due to some mechanical fault or otherwise. Abid Hussain Shah also stated at the end of his statement that the accused was driving the Jeep in high speed. According to him, when Ghulam Rasool Shah was driving the Jeep, they raised noise that he should not drive the Jeep because he would commit accident, but he did not stop the Jeep upon which the passengers jumped from the Jeep. On the one hand he says that the Jeep was being driven in high speed and on the other he says that the passengers jumped from the Jeep. If the passengers jumped from the Jeep, which was being driven in high speed, then they would have sustained serious injuries or they would have died. It is not possible that a person could jump from the vehicle going on such a high speed. It means that the Jeep was not being driven in a high speed, but it was being driven in low speed. It is well-settled principle of law that where two interpretations of evidence are possible, then the one favourable to accused should be adopted.
This view finds support from the cases reported as Khushal and another v. The State [1971 SCM R 357], State through Advocate-General v. Farman Hussain and others [PLD 1995 SC 1], Karim Dad v.
Zahir and others [2004 SC 36] and Tufail. Hussain Shah v. The State [1994 SCR 275].
' In Khushal and another v. The State [1971 SCM R 357] it was held as under:-- ' Where there are two possibilities open upon the evidence, the possibility which is more favourable to the accused must be accepted, if it otherwise fits in with the facts and circumstances of the case.".
' In State through Advocate-General v. Farman Hussain and others [PLD 1995 SC 1] it was held as under:-- ' If any legal provision, which is to be relied upon in the appraisement of evidence and is open to two interpretations, one beneficial to the accused is to be adopted."
' In Karim Dad v. Zahir and others [2004 SCR 36] it was held as under:-- ".... When there be two possibilities open upon the evidence of the prosecution, the possibility which goes in favour of the accused should be accepted."
' In Tufail Hussain Shah v. The State [1994 SCR 275] it was held as under:-- "It is settled law that if there are two hypotheses which are equally possible, one favourable to the accused is to be given preference."
' On the basis of aforesaid principle, the presumption shall be drawn that it has been rightly stated by Qadim Hussain Shah that before the accident the jeep was slow due to a mechanical fault and it met the accident. The passengers jumped from the jeep because it was in a slow speed.
8. Imam Hussain Shah appeared as prosecution witness. He stated that he was sitting in the Jeep and was going to Kumar-Bandi from Namli Syyedan. Many other passengers were also sitting in the Jeep. From Namli Syyedan to Domel Syyedan, Ch. Riasat Hussain was driving the Jeep. Then from Domel Syyedan, Ghulam Rasool Shah started driving Jeep and it met an accident. #The accident took place due to rash driving. It is pertinent to note that he has simply stated that the accident took place due to rash driving, but he has not stated that how much was the speed of the Jeep at that time. No explanation was furnished by him.He also narrated that due to rash driving Ch. Riasat Hussain jumped from the Jeep. When Ch. Riasat Hussain appeared as a prosecution witness, on 28-7-2005, he nowhere deposed that he jumped from the Jeep. He stated that when Ghulam Rasool Shah started driving the Jeep, then he boarded on the backside of Jeep. When the Jeep reached at Dhanni, he stepped down. He nowhere deposed that he jumped from the Jeep.
Muhammad Fayaz alias Malangi also stated that when the Jeep reached Dhanni, then Ch. Riasat Hussain, jumped from Jeep. VSo there is contradiction between the statements of Imam Hussain Shah, Ch. Riasat Hussain and Muhammad Fayaz alias Malangi.
9. All the prosecution witnesses simply stated that the accident took place due to rash driving of the Jeep, but not a single witness could point out that what was the speed at the time of accident.
They stated that at the time of accident passengers were jumping from the Jeep. If the Jeep was being driven in a high speed, then how a person could jump from Jeep and survive? Thus the version narrated by the witnesses is self-contradictory. It can easily be ascertained that the Jeep was not being driven in a high speed, rather it was being driven in a low speed from which the passengers could jump. If the speed is measured from the time consumed by Jeep from Domel Syyedan to Khurshidabad, the speed of fateful Jeep can hardly be seven or eight kilometer per hour, which cannot be considered a high speed.
10. It is to be noted that when the statement of accused under section 265-D, Cr.P.C. Was recorded, he stated that the accident took place due to opening of "Arm-Ends" of the Jeep. When his statement under section 340, Cr.P.C. Was recorded, he deposed that the central arm pin of the Jeep opened, due to which the accident took place. This version was also supported by Syed Qadeem Hussain Shah, defence witness. He deposed that when baraat reached near Khun Bandway the speed of Jeep was slow and due to mechanical fault the accident took place. In the instant case the stand of appellant from the very beginning was that the Jeep met the accident due to opening of central arm pin and this version of the appellant was not denied or refuted by the prosecution. The prosecution did not produce Motor Vehicle Examiner or any expert before the Court as a witness to prove that the accident did not take place due to mechanical fault, while under law it was the bounden duty and 'moral obligation of the prosecution to prove its case beyond any doubt. The prosecution has to stand on its own legs and every benefit of doubt will go to the accused. It is well-settled principle of law that surmises and conjectures cannot take place of proof. When the versions of the accused, adapted in his statements under sections 265-D and 340, Cr.P.C., and that of Abid Hussain Shah are read together, then these lead to the' conclusion that the Jeep was at slow speed at the time of accident, as stated by Qadeem Hussain Shah, therefore, the passengers jumped from the Jeep. The perusal of impugned judgment shows that the learned Judge of the Shariat Court has not considered the version of Abid Hussain Shah, who was a star witness of the prosecution and whose son died in the occurrence. He categorically stated in his examination-inchief that all the four wheels of Jeep separated from it. His this version finds corroboration from the statement of the appellant and Qadeem Hussain Shah. There is nothing on the record on the basis of which it could be ascertained that what was the speed of Jeep at the time of accident. The learned Judge of the Shariat Court has simply relied on the statements of prosecution witnesses that they stated that the Jeep was being. Driven in a high speed. It is well-settled principle of law that no conviction can be recorded on the basis of presumptions, but it can be recorded only on the basis of strong and cogent evidence. It was the duty of the prosecution to prove its case beyond any doubt and what was the speed of Jeep at the time of accident.
' The epitome of above discussion is that this appeal is accepted and the judgments recorded by the Shariat Court and the District Criminal Court on 20-1-2009 and 30-4-2008 respectively are set aside. The appellant stands acquitted.