YAHYA AFRIDI, J.---Bakht Sher, the present appellant, has through the instant criminal appeal challenged the judgment passed by Additional Sessions Judge-II, Mardan dated 25-3-2010, whereby the appellant has been convicted and sentenced in the following terms:--
(i) Under section 279 Pakistan Penal Code, 1908 ("P.P.C."), he was convicted and sentenced to undergo one year rigorous imprisonment ("RI") and shall also pay a sum of Rs.3000 as fine failing which he shall further undergo three months simple imprisonment ("SI").
(ii) Under section 320, P.P.C. For the death of Mst.Zaitoon and Mst.Basmin, he was convicted and, sentenced to seven years rigorous imprisonment on two counts and shall also pay "Diyat" to the legal heirs of both the said deceased.
(iii) Under section 337-G, P.P.C., he was to undergo rigorous imprisonment for one year RI on two counts for the injuries caused to Mst. Rakhshanda and Mst. Sumaira and also to pay as "Daman", Rs.10,000 to Mst. Rakhshanda and Rs.50,000 to Mst. Sumaira.
(iv) All the sentences were to run concurrently and the appellant was granted the benefit of section 382-B, Criminal Procedure Code 1898, ("Cr.P.C."). However, till the realization of "Diyat" and "Daman", the appellant was to be kept in judicial lock-up.
2. The unfortunate background to the present appeal is the tragic road accident, which was reported as F.I.R. No.358 lodged by Janan for the offences under sections 279, 320, 337-G and 427 of P.P.C. Registered on 30-8-2008 in Police Station, Jabbar, Mardan ("F.I.R.").
3. The narration of the facts as reported by Janan, the complainant in the F.I.R. Reveals that at 0900 hours on 30-8-2008, he along with others including Mst. Zaitoon, Mst. Sumaira, Mst. Basmin, Samiullah, Mst. Raina and Mst. Rakhshanda were travelling in a Toyota Hiace, bearing Registration No. C1163 Swabi ("Flying Coach") as passengers, from Mardan to Katlang. The driver of the Flying Coach, despite all warnings continued to drive in a rash and negligent manner. Finally due to his rash driving the Flying Coach went out of control and resulted in the tragic accident, which resulted in a death of a Mst. Zaitoon on the spot while injuries were caused to Mst. Basmin, Mst. Sumaira, Mst.
Raina, Mst. Rakhshanda, Janan, and Samiullah. The driver of the Flying Coach, though not named in the F.I.R., fled from the place of the occurrence, was charged for the commission of the offences stated in the F.I.R.
It would be pertinent to note that Mst. Basmin, who after surviving the accident succumbed to her injuries and died after fourteen days in a hospital at Peshawar.
4. The present appellant was arrested on 8-9-2008 and on 25-3-2009 was charged by the trial Court for the offences under sections 279, 320, 337-G and 427 of P.P.C. The present appellant denied the said charges and pleaded innocent. Accordingly, the trial commenced.
5. In turn, the prosecution produced twelve witnesses. It would be pertinent to note that Janan, the complainant of the F.I.R. And Samiullah a witness mentioned in the F.I.R. Were abandoned by the prosecution, reportedly for being won over by the defence.
6. Thereafter, the appellant was examined under section 342 of Cr.P.C, wherein, inter alia, he denied being the driver of the Flying Coach, at time of the occurrence.
7. The trial Court after considering the evidence produced by the prosecution convicted the appellant and sentenced him vide judgment dated 25-3-2010. Hence, the present appeal by the appellant.
8. The learned counsel for the appellant vehemently contended that the complainant Janan had not been produced in evidence to prove the case of the prosecution hence, an adverse inference was to be inferred as provided under Article 129 of the Qanoon-e-Shahadat Order, 1984; that as the appellant was not named in person in the F.I.R. Hence, after his arrest there had to be an "identification parade" as provided under the law for him to be legally connected with the offence and that the failure to do so is fatal to the prosecution; that the naming of the appellant by Mst.
Rakhshanda (P.W.8) in Court and her pointation during her testimony is of no legal value under the law. The learned counsel relied upon the judgment of the august Supreme Court in case of Muhammad Asghar v. The State (2010 SCM R 1706).
9. In rebuttal the learned counsel representing the complainant and duly assisted by the State counsel vehemently negated the arguments placed forth by the counsel for the appellant and contended that a clear case was made out against the present appellant which was proved beyond doubt; that there were specific circumstances arising from the record, which showed the clear connection of the appellant with the offence for which he was charged; that the Superdari order dated 16-9-2008 for the release of the Flying Coach and the statement of Liaqat Ali, the brother of the present appellant, were clear instances, which established that the appellant was the driver of the Flying Coach at the time of the occurrence; and that in fact being the, "last possessor" of the Flying Coach as already stated by his brother in his statement; that in such circumstance, even if no identification parade had been carried out, the evidence was clearly available linking the present appellant to the offence; that finally the statement of Mst. Rakhshanda (P.W.8) in Court, whereby she pointed and identified the present appellant to be the driver of the Flying Coach at the time of the offence was enough for connecting the appellant with the offence.
10. The valuable arguments of the learned counsel for the parties duly heard and the available record of the case thoroughly perused with the assistance of the learned counsel for the parties.
11. Admittedly, Janan the complainant had not been produced by the prosecution. The inference would surely be taken in favour of the defence. However, this inference cannot be extended or stretched to an extent whereby the entire prosecution case is to fail. The record shows that the prosecution has been able to produce Mst. Rakhshanda (P.W.8) and Mst. Sumaira (P.W.9) who very clearly narrated the entire version of the prosecution. Being injured themselves and having no animus with the appellant, their testimony cannot be brushed aside just on the inference that Janan, the complainant, was not produced by the prosecution. Thus, when the prosecution has produced other clear, reasonable and trust worthy evidence, the non-production of a witness cannot be fatal to the case of the prosecution.
12. The record reveals that the appellant was not named in the F.I.R. By the complainant. His arrest was made on 8-9-2008, seemingly, on the statement under section 161 of Cr.P.C. Of his brother Liaqat Ali to the police, who for the first time reported that the present appellant is connected with the offence and stated to be the driver of the Flying Coach at the time of the occurrence.
13. The application of Superdari for the Flying Coach dated 11-9-2008, which was filed by Liaqat Ali, but in the name of his brother, the present appellant. It is important to note that even the affidavit on the said application has been shown by Liaqat Ali and not by the present appellant. Strangely enough these facts are not reflected in the order of the learned Magistrate dated 16-9-2008. The said order stated that the present appellant had sought the return of the Flying Coach while the same was finally handed over to Liaqat Ali and not the present appellant.
Even Kishwar Khan, the Investigating Officer ("I.O.") in the present case (P.W.7) does not narrate any step taken by him to ascertain the identity of the appellant as the driver of the Flying Coach at the time of the offence. He is silent about the application for the Superdari of the Flying Coach and the statement of Liaqat Ali regarding the appellant being the driver of the Flying Coach.
However, this issue is raised in the statement of the appellant under section 342 of Cr.P.C., when in answer to Questions Nos . 5 and 6, he very candidly denied filing any application for Superdari or receiving the custody of the Flying Coach. In fact, he stated that the said custody was rendered to Liaqat Ali, his brother, the true owner of the Flying Coach. The extract of the statement is as follows:- - "Question No. 5. It is also evident that you submitted an application dated 11-9-2008 before the Judicial Magistrate on your behalf in respect of the custody of the flying coach No.1163/Swabi. What do you say about it?
Ans. It is incorrect. I myself has not moved any application and the same has been moved by the owner of the flying coach i.e. Liaqat Ali.
Question No. 6. It is an evident that you were the driver of the said flying coach mentioned above at the time of the occurrence and you produced the original documents of the said flying coach before the Judicial Magistrate, who vide order dated 16-9-2008 granted the custody of the said Flying Coach to you. What do you say about it?
Ans. It is incorrect. The same has been produced by the owner i.e., Liaqat Ali and the custody was also granted to the owner".
14. It would be pertinent to note that Mst. Rakhshanda (P.W.8), during her examination-in-chief, clearly identified the appellant in court as the driver of the Flying Coach at the time of the offence.
However, despite this clear link established by the prosecution, appellant's conviction cannot be based thereon as per the command of the august Supreme Court in Muhammad Asghar's case (2010 SCM R 1706), wherein it has been relied upon precedents and held that:- "As regards Muhammad Zaman (P.W.15), he is a private witness, but as per prosecution he is an independent Witness. We have examined his evidence, but did not find that he identified the appellants at the time of occurrence, nor he stated so in his deposition. While giving evidence, in the end, he has stated that the appellant were the culprits. The learned Deputy Prosecutor-General has also admitted that the accused were unknown to this witness, but he had identified them in the Court, which is sufficient to prove the identity of the appellants. Thus, it is an admitted fact that the appellants were not known to P.W.15, therefore, in such a circumstance, the identification of the appellants through P.W.15 was essential but no such identification test was held. As such, in the peculiar facts and circumstances of the case, the identification of the culprits in the Court only through such witness carries no weight."
Similar point was also raised before this Court in a case of Asghar Ali v. The State (1992 SCM R 2088). In that case an accused was not identified, therefore, not named in the F.I.R. After his arrest an identification test was held. At the trial, the trial Court discarded the identification test but relied upon the identification of the accused in the Court by the witness and convicted him. In such a situation, this Court did not approve such type of identification of the accused by the P.Ws. In the Court and observed at page 2097 as under:- `The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving by identity of the culprits.'
In another case of Tayyab v. The State (1995 SCM R 412) similar view was taken and at page 414 it was observed as under:- "As far as the statement of Muhammad Moosa is concerned he did not appear when the identification parade was arranged and was called for recording his statement at the trial. It was at the time of recording such evidence that he stated, pointing towards Tayyab, that he was the man who abducted him. Such evidence can hardly be relied upon as identification of the accused and corroboration to other evidence and made basis for conviction. Thus, the identification of the appellants in Court by the P.Ws. Without holding identification test through the P.Ws. Is of no value, therefore, it cannot be made the basis for conviction."
15. The aforementioned clear enunciation of the law settled by the august Supreme Court of Pakistan leaves this Court no option but to set aside the conviction and sentence awarded to the present appellant. This Court is ordained under the command of Article 189 of the Constitution to follow the law as laid down by the august Supreme Court. However, with utmost respect to the wisdom of the law settled by the august Supreme Court, this Court consider the same to be harsh and against public policy as it may shake the confidence of the public in the criminal dispensation.
It is very earnestly urged that the august Supreme Court may at an appellate juncture, consider certain exceptions to the rule laid down in the aforementioned judgments, especially in cases, where a witness having no malice or enmity with the accused during his evidence before the trial court and with clarity identifies accused.
16. In the above perspective, this court accepts the present appeal. The conviction and sentence awarded to the appellant Bakht Sher awarded by the Additional Sessions Judge-II, Mardan through the judgment dated 25-1-2010 is set aside. The appellant is, therefore acquitted of the charges and shall be released forthwith if not required in any other case.