1. ' MUHARRAM G. BALOCH, J.---This Criminal Appeal is directed against the judgment, dated 22-5- 2007 passed by the learned Vth Additional Sessions Judge, Karachi Central in Sessions Case No,287 of 2004, re: "The State v. Imdad Ali son of Haji Ishaque" under section 320, P.P.C. Whereby appellant Imdad Ali son of Haji Ishaque was convicted and sentenced to suffer R.I. For three years and pay Diyat in the sum of Rs,300,000 to the legal heirs of deceased, if found, otherwise the same be deposited in the National Exchequer.
2. ' The brief facts of the case as per F.I.R. Are that on 1-8-2004, A.S.-I. Muhammad Hussain Chandio with reference to Report No,41 of Daily Diary of P.S. Liaquatabad went to Abbasi Shaheed Hospital and sought permission from MLO Dr. Aqeel Ahmed and conducted proceedings under section 174, Cr.P.C. Regarding the death occurred due to accident of an unknown person aged about 30/32 yeaRs, He also obtained post-mortem report and then sent the dead body to Edhi Cold Storage, Sohrab Goth. The A.S.-I. Then reached at place of incident and enquired from officer deployed at picket there and mobile officer and so also inhabitants of area and it was revealed that one Suzuki Pick-Up No,KM-3899, of white colour being driven by a person named as Imdad Ali son of Muhammad Ishque, the appellant. The above Suzuki was coming from Liaquatabad No,10 towards Dakkhana Chowrangi in rash and negligent manner and so also in high speed and when reached at main S.M. Taufeeq .Road at 0245 hours opposite the Firdous Shopping Centre, which hit to an unknown person standing on the footpath with a result he fell down on the road and sustained injuries and the Suzuki also turned over after taking somersault. The injured person was removed to Abasi Shaheed Hospital by the people present on the spot but he succumbed to the injuries. Thus it is alleged that the act of driver namely appellate was an offence falling under section 320, P.P.C.
3. ' The A.S.-I. Recorded the statement under section 161, Cr.P.C. Of the witnesses and on completion of the enquiry challaned the accused to face his trial for charge punishable under section 320, P.P.C.
4. Arising out from F.I.R. No,97 of 2004 under section 320, P.P.C. Of Police Station Liaquatabad.
5. ' The trial Court framed the charge under section 320, P.P.C. Against the accused to which accused pleaded not guilty and claimed his trial. As such prosecution in support of case examined P.W.1. P.C.
6. Mumtaz Hussain at Exh.3, who produced Memo, of Arrest of accused and personal search at Exh.3/A. Memo of site inspection at Exh.3-B. P.W.2 S.I.P. Muhammad Hussain Chandio at Exh.4, who produced Entry No,41, dated 1-8-2004 at 0305 hours of Police Station Liaquatabad at Exh.4-A, lettci- addressed to MLO for seeking permission for inspection of dead body at Exh.4-B. Inspection Memo.
7. Of dead body at Exh.4-C, Inquest report at Exh.4-D, Entry No,42 at Exh.4-E, F.I.R. No,97 of 2004 at Exh.4-F, Prosecution given up A.S.-I. Abdul Sami, who recorded the F.I.R. At Exh.5, P.W.3. Muhammad Naseer Bhatti, the Motor Vehicle Inspector was examined at Exh.6 who produced the Inspection Certificate 6-A. P.W.4 P.C. Ghulam Murtaza examined at Exh.7, P.W.5 MLO Dr. Aqeel Khan Wala at Exh.8 who produced Death Certificate of unknown deceased at Exh.8-A and his Post-Mortem Note No,327/2004 at Exh.8-B. He also produced another Certificate issued by him in respect of examination of accused/appellant Imdad at Exh.8-C, P.W. Sohail Akhter was examined at Exh.9, P.W.7, P.I. Was examined at Exh. 10 who produced sketch of place of incident at Exh.10-A. Notice to accused Imdad Ali at Exh.10-B, Delivery receipt of Vehicle No,KM-3899 at Exh.10-C and then prosecution closed its side at Exh.11. The learned trial Court examined the accused under section 342, Cr.P.C. To which accused denied all the allegations levelled against him. However, he neither examined himself on oath nor examined any witness in his defence.
8. ' The learned trial Court after hearing the prosecution and defence framed the following points for determination:--
(1) Whether on 1-8-2004 at 2-45 p.m. Accused while driving his Suzuki bearing No,KM-3899 in rash and negligent manner hit an unknown person standing on the foot path as a result of which he died?
(2) What offence, if any was committed by the accused?
9. ' The learned trial Court has relied the evidence of the above named P. Ws. All of them are Police officials who according to their statements stated that the Suzuki vehicle being driven by the accused was in high speed and the man who was wandering from left to right on the foot path was hit by the speedy Suzuki with the result he sustained injuries. The Suzuki Pick-Up was also turned down resultantly the accused had also received injuries and record revealed that Suzuki Pick-Up was handed over to accused Imdad Ali being owner vide Memo of Supardaginama as Exh.10-C. In such circumstance, the learned trial Court answered Point No,1 in affirmative.
10. ' In view of the findings on Point No,1 on affirmative, the learned trial Court awarded R.I. For three years to the appellant under section 320, P.P.C. On the charge of rash and negligent driving and also ordered him to pay diyat in the sum of Rs,300,000 to the legal heirs of the deceased, if they are found, otherwise the same be deposited in the National Exchequer.
11. ' I have heard Mr. Muhammad A. Qureshi, learned Advocate for appellant and Mr. Fazal Rahman Awan, learned State Counsel on behalf of A.G. Sindh.
12. ' The learned counsel for the appellant mainly contended that the incident is an witnessed crime and that none of the witness has deposed that the accused was driving his Suzuki in a rash and negligent manner. According to him the only evidence against the accused is that he was driving the vehicle in high speed. As such he submitted that driving of vehicle at high speed could not be considered and taken as a rash and negligent act in modern technology which provides reasonable safeguard of stopping the same within no distance and time.
13. ' To substantiate his above point he had drawn attention to the statements of P.Ws. P.C. Mumtaz Hussain and P.C. Sohail Akhtar both examined at Exhs.3 and 9 respectively who are said to have seen the accused while driving the Suzuki and submitted that both the witnesses have stated nowhere that the accused was driving the vehicle in rash and negligent manner, therefore according to him that when the very fact of rash and negligent act of accused was not proved by direct evidence therefore the accused cannot be held responsible for the same. He further argued that the Police suppressed the facts of the case and so also injuries on the person of the accused which he received during the course of accident which occurred due to irresponsible and negligent act of deceased who appeared immediately on the record when the accused was coming from the opposite direction. However, the factum of the injuries was certified by the MLO Dr. Aqeel examined at Exh.8.
14. ' Mr. Qureshi the learned counsel for the appellant also submitted that the deceased at the time of incident was wandering from left to right and it appeared that he was not in his proper senses therefore this mishap took place.
15. ' The learned counsel appearing for the appellant has relied upon case law reported as under:-- 1999 M LD 567 (Muzaffar Ali alias Nannah v. The State)
16. 1974 PCr.LJ 56 (Lahore) (Noor Khan v. The State) PLD 1959 (W.P.) Karachi 30 (Muhammad Yaqoob v.
17. The State) 1980 ' PCr.LJ 103 (Karachi) (Muhammad Akhtar v. The State) 1989 PCr.LJ 2107 (Falak Sher v. The State). 1995 SCM R 1345 (Tariq Pervez v. The State).
18. 1994 SCM R 1928 (Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others)
19. 2008 SCM R 1221 (Ghulam Qadir and 2 others v. The State)
20. 2008 SCM R 336 (Shariat Appellate Bench) (Yasin alias Ghulam Mustafa v. The State).
21. ' The above case-law has been relied by the learned counsel for appellant on the point that since no allegation of rash and negligent from direct evidence has been proved against the accused therefore he cannot be held responsible for such an offence. According to the learned counsel for appellant driving in high speed in the present modern technology is not an offence.
22. With the assistance of learned counsel appearing on behalf of State, I have gone through the evidence of above named two eyewitnesses and find that they have not said anything in respect of rash and negligent driving on the part of the accused. In absence of such evidence of rash and negligent driving the accused was entitled for benefit of doubt and the learned State counsel has frankly conceded to the fact that since there is no direct evidence of rash and negligent driving on the part of the accused, therefore, the conviction and sentence awarded to the appellant by the learned trial Court vide impugned judgment cannot sustain and thus he did not support the impugned judgment.
23. ' As indicated above conviction under section 320, P.P.C. Requires the conclusively established act of rash and negligent act on the part of the accused. Appellant and the learned trial Court lost sight of this fact and seemingly remained oblivious of this aspect altogether.
24. ' Since prosecution has failed to prove its 'case beyond shadow of reasonable doubt, consequently, the appeal is accepted and conviction and sentence recorded vide judgment, dated 22-5-2007 by the Vth Additional Sessions Judge, Karachi are set aside and appellant is acquittal of the charge while extending benefit of doubt to him.
25. ' The appellant is on bail and accordingly his bail bonds are cancellation and surety is discharged.