' ABDUL SAMI . KHAN, J.-- Through this criminal revision under section 439, Cr.P,C. Nadeem Akhtar alias Lomri petitioner has called in question the judgment dated 3-11-2010 handed down by. The learned Magistrate Section 30, Kahuta, District Rawalpindi wherein the petitioner was convicted under sections 279/320/322/ 337-G, P.P.C. For causing the death of Mst. Raheela Bibi, Mst. Riffat Ilyas, Mst. Waheeda Bibi, Mst. Tayyiba Bibi, Mst. Saima Bibi, Mst. Safia Bibi and Mst. Raeesa Bibi deceased and was sentenced to undergo rigorous imprisonment for seven years and was also ordered to pay Diyat amounting to 7,54,450 on .Seven counts under section 320, P.P.C. He was also convicted under section 337-G, P.P.C. And was sentenced to undergo rigorous imprisonment for five years and was ordered to pay Daman amounting to Rs.5000 on six counts. The petitioner was further convicted for an offence under section 279. P.P.C. And was sentenced to undergo rigorous imprisonment for two years. All the sentences passed against the petitioner was ordered to run concurrently and benefit under section 382-B, .Cr.P.C. Was extended in favour of the petitioner. The petitioner assailed the impugned judgment dated 3-11-2010 passed by the learned Magistrate Section 30, Kahuta,. District Rawalpindi by filing appeal before the learned Additional Sessions Judge, Rawalpindi Camp at Kahuta which was dismissed vide order dated 19-1-2011.
2. According to the prosecution story set forth in the F.I.R. The complainant Mst. Mehnaz Akhtar was serving in Davix Company and used to travel daily along with other colleagues working girls through Suzuki IDS;4522, driven by Nadeem alias Lomri. On 1-2-2008 at 7-00 am when the vehicle reached near Eliot Girls Primary School the driver of Suzuki (Nadeem alias Lomri) tried to overtake another Suzuki Van by driving the vehicle in a very rash and negligent manner and as a result thereof it collided with Bus, of KRL bearing Registration No. RPT:-2427 coming from opposite direction and was driven by Abdul Ghafoor driver. The said Abdul Ghafoor driver was coming from Kahuta and he too was driving his Bus in rash and negligent manner. As a result of accident four girls namely Mst. Raheela Bibi, Mst. Riffat Ilyas, Mst. Waheeda Bibi and Mst. Tayyiba Bibi had lost their lives at the spot whereas remaining seven girls, including the complainant were shifted to hospital in injured conditions. On the statement of the complainant formal F.I.R. No. 27 was registered at Police Station Kahuta, District Rawalpindi on 1-2-2008 under sections 320, 279/3374 P.P.C. The investigation in this case was conducted by Abdullah, SI who reached Civil Hospital Kahuta and reduced into writing statement of Mst. Mehnaz Akhtar complainant in the shape of complaint Ex.PJ, prepared rough site-plan of the place of occurrence, as Ex.PK, taken into possession of both the vehicles vide recovery memo Ex.PL, effected arrest of Abdul Ghafoor accused and Nadeem alias Lomri petitioner, took into possession the registration books of the vehicles and licenses of both the drivers, found the petitioner and Abdul Ghafoor driver of Bus guilty during the investigation, and submitted report under section 173, Cr.P.C. Before the learned trial Court. Charge was framed on 26-4-2008.
3. The prosecution in order to prove its case examined as many as 13 witnesses before the learned trial Court. The ocular account in this case has been furnished by injured P.Ws. Namely Mst. Nazima Suleman. (P.W.1), Mst. Sughufta (P.W.2), Mst. Aamila Bibi (P.W.4) and Arshid Mehmood (P.W.3), independent witness. Abdullah, SI/Investigating Officer appeared before the learned trial court as (P.W,9) who investigated the case in hand and stated about various steps taken by him during investigation of this case. Medical evidence in this case was furnished by Dr. Aisha, Women Medical Officer, THQ (P.W.5), Dr. Faisal Rana (P.W.6), Dr. Samina Khan, Women Medical Officer, THQ (P.V.7) and Dr. Sajjad, DMS, Tehsil Headquarter Hospital, Kahuta. The remaining evidence produced by the prosecution is formal in nature.
4. In his statement recorded under section 342, Cr.P.C. The petitioner denied all the allegations levelled against him by the complainant and professed his innocence. He did not make statement on oath under section 340(2), Cr.P.C. But opted to examine witnesses in his defence. In response to a question that why this case against you and why the P.Ws. Have deposed against you the petitioner replied that the police just to show its efficiency involved him in this case.
5. Upon completion of the trial the learned trial Court found the case against the appellant to have been proved beyond any reasonable doubt and, thus, convicted and sentenced him as mentioned above. The learned appellate court also did not see any, illegality in the judgment of conviction handed down by the learned trial Court, and dismissed the appeal filed by the petitioner. Hence, this revision before this Court.
6. The learned counsel for the petitioner contends that the star prosecution witness, i.e. Mst. Mehnaz Akhtar complainant had not been brought in the witness box by the prosecution to adduce evidence against the petitioner, so an inference could be drawn that had she been produced, she must have not supported the prosecution version. There are glaring discrepancies and contradictions in the statements of the eye-witnesses which are sufficient to disbelieve the dishonest improvements made by the prosecution witnesses. Both the learned lower courts remained unable to appreciate the improvements and they also failed to thrash out the real facts from the evidence that the petitioner was driving the vehicle in a controlled speed with due vigilance and it was the driver of the Bus who struck the Bus with Suzuki Van driven by the petitioner. On the same set of evidence the learned trial court has acquitted Abdul Ghafoor co- accused of the petitioner, thus, the same evidence qua the petitioner ought to have been disbelieved by the learned trial court to the extent of the petitioner as well. During the incident the petitioner has also received injury and this fact shows that the petitioner had tried his level best 'to avoid accident but this fact has totally been ignored by both the learned courts below. To prove the charge under section 320, P.P.C. It is obligatory upon the prosecution to prove that the accused was driving the vehicle in very rash and negligent manner but, the prosecution has miserably failed in this regard. Both the learned courts below have passed the impugned judgments in an inequitable manner which warrants an interference by this Court. At the end the learned counsel has maintained that the prosecution had miserably failed to prove its case against the petitioner beyond any reasonable doubt, hence the conviction and sentence passed against the petitioner by the learned trial court and upheld by the learned appellate court are liable to be set aside by this Court. The learned counsel for the petitioner has relied upon 1974 PCr.LJ 56 Lahore, 1980,PCr.LJ 103 Karachi, 1999 M LD 567 Lahore, 2001 YLR 3313 Karachi and 2007 PCr.LJ 1393 Peshawar.
7. On the other hand the learned Law Officer and the learned counsel for the complainant unanimously contend that the petitioner is nominated in the promptly lodged F.I.R. With specific role. All the witnesses had unanimously stated that the petitioner was driving the Van in rash and negligent manner and after the accident he had slipped away from the place of occurrence. The medical evidence produced by the petitioner regarding his injury allegedly sustained during accident before the learned trial court has been maneuvered in order to deceive the learned trial court. The prosecution witnesses are consistent on each and every material point and in spite of lengthy cross-examination the defence remained unable to shatter their veracity. The learned trial court has already taken lenient view which view also found support from the learned appellate court, thus, no further leniency is required to be taken by this Court. The learned counsel for the complainant has relied on 2008 YLR 2571 Lahore, 2009 PCr.LJ. 292 Karachi and 2010 SCM R 748.
8. After hearing the learned counsel for the parties and going through the record with utmost care and caution it has been observed by this Court that there are certain facts which are admitted at all hands in this case and that are, the date, time, place and presence of the petitioner at the place of incident at the relevant time, thus, the same needs not to be proved. Even presence of the prosecution witnesses at the place of incident on the fateful day is not denied by the defence because except Arshad Mehmood (P.W.3) all the other witnesses have received injuries in that terrible accident which took the lives of seven Innocent girls. Now the pivotal characteristic of this case remains to be discussed here is that whether the petitioner was driving the vehicle in a rash and negligent manner or not. For this purpose 1 have examined the evidence, led before the learned trial court by the prosecution from cover to cover and found that all the prosecution witnesses are unanimous in stating that the petitioner, instead of their reprimand, was driving the van in a very high speed rashly and negligently, he was trying to take over the other van with whom he intended to have a race, he was also playing music in very high-pitche which divert his attention and the van collided with the Bus by going on wrong direction. This fact has also been established from the site-plan (Ex.PK) wherein Point No. 1 has reflected the place of van on right side from Kahuta to Rawalpindi whereas Point No. 2 has reflected the place of Buss on left side from Rawalpindi to Kahuta. All this shows that the petitioner had plied the van on wrong side of the road for the purpose of overtaking the other van thereof the instant cold-blooded accident had taken place.
9. Now by analyzing this aspect of the case from another angle it has, become understandable that the high speed of the van coupled with high-pitched music had made it impossible for the petitioner to control the van which constrained him to jump out of the van just before the van was about to collide with the Bus and left the passengers at the mercy of ugly situation prevailed at the spot. The mere fact that van went beyond the control of the petitioner at the spot on the fateful day itself establish rash and negligent driving on the part of the petitioner. Had the petitioner driven the van at normal speed he might had controlled it. So the factum of rash and negligent driving on the part of the petitioner is established beyond any shadow of reasonable of doubt. Similarly, the act of negligence has also become apparent from the evidence produced by the prosecution, especially from site-plan (Ex.PK) which shows that the van driven by the petitioner collided with the Bus on.
Right side while going from Kahuta to Rawalpindi whereas the petitioner should have plied the vehicle on left side according to the traffic rules. The petitioner had taken his van on wrong side/right side in a high speed to overtake another van and could not envision the bus coming from opposite side and he has to jump from van to save his own life. Thus, the element of negligence is also established not only from the conduct of the petitioner but also from the reliable, trustworthy and confidence-inspiring evidence produced by the prosecution witnesses including injured witnesses. All of them remained consistent on each and every material point. The minor contradictions in the statements of the prosecution witnesses are not fatal enough to discard the same and to create any doubt in the prosecution story narrated in the F.I.R. The ocular account in this case has been furnished by the injured girls who were travelling in the vehicle and also an independent witness namely Arshad Mehmood (P.W.3) who was travelling on a separate vehicle.
Thus, by any stretch of imagination the credibility of their trustworthy evidence cannot be disbelieved.
10. I shall also feel it necessary to mention here that all the injured witnesses of this case used to travel with the petitioner from Kahuta to Rawalpindi and they have no previous animosity with him to depose against him while appearing in the witness box before the learned trial court. The petitioner has also remained unable to establish an element of mala fide on the part of injured witnesses from any material so as to draw an adverse inference from their evidence. Although the learned counsel for the petitioner has laid great emphasis on the point that the prosecution had not produced the complainant who was present at the scene at relevant time so an inference can be drawn that had she appeared in the witness box she must have deposed against the prosecution. I have, however, remained unable to subscribe to this submission of the learned counsel for the petitioner because if the situation was so then of course the petitioner had ample opportunity to produce her in his favour as defence witness but he too remained unable to do so.
Even otherwise the prosecution had proved the ocular account through injured witnesses who were boarding the van and had seen the occurrence with their own eyes.
11. So far as the contention of the learned counsel for the petitioner that on the same set of evidence co-accused namely Abdul Ghafoor was acquitted of the charge by the learned trial court is concerned suffice it to observe that the prosecution witnesses had not deposed against him in the witness box and the Investigating Officer while appearing as 'P. W.9 before the learned trial court had categorically stated that he had duly investigated this aspect of the matter from the passengers travelling in the Bus and all of them had unanimously stated that Abdul Ghaloor co- accused was not at fault and he was driving Bus at right direction. Thus, it does not lie in the mouth of the petitioner to say that the benefit of acquittal of his co-accused should also be extended to him.
12. Now I shall take the defence plea put forth by the petitioner. It is a case of the petitioner that he had also received injury at the spot and his leg was fractured but while appearing as D. W'.1 Dr. Sajjad had categorically stated that he had not seen any fracture on the leg of the petitioner who had got pasted plaster on his leg from a private hospital, thus, -the defence evidence itself disproves the plea taken by the petitioner and the same had also been disbelieved by both the learned courts below. I have also not seen any exception to believe the same. Therefore, the evidence produced by the defence is of no help. The petitioner has made a futile exercise to deceive D.W.1 by pasting plaster on. His leg just to Make a lame defence in this case. Taking this aspect from another angle, if the leg of the petitioner was fractured at the spot then how could he succeed to escape from the spot. Contrary to that the medical evidence produced by the prosecution is absolutely in line with the ocular account and the same has provided sufficient support to the ocular account.
13. An irresistible and inescapable conclusion of the above discussion is that the learned trial court had rightly convicted and sentenced the petitioner under sections 320/322/337-G1279. P.P.C. And had also rightly been upheld by the learned appellate court. Due to the rash and negligent driving of the petitioner seven young girls have lost lives in an atrocious manner so I do not find any exception to differ with the judgments passed by the learned trial court and upheld by the learned appellate court which is based upon proper appreciation of evidence available on the record and is in accordance with the principles of appreciation of evidence set down by Hon'ble Supreme Court of Pakistan in this regard, I, therefore, uphold the convictions and sentences passed against the petitioner and. Resultantly. This criminal revision is dismissed.