The petitioner was tried by the learned Judicial Magistrate Section 30, Burewala in case FIR No, 367 of 2004 dated 24.08.2004 registered under Section 320 PPC at Police Station, City Burewala D Kundian District Vehari. After conclusion of trial vide judgment dated 17.12.2009, the petitioner was convicted and sentenced as under:-- Sr.No.Name of the AccusedConviction under sections 1 Gulzar Khan Convicted under Section 320 PPC and sentenced him to undergo R.I for five years. He was also directed to pay diyat Rs,360209/- to the legal heirs of the deceased and - till the payment of diyat amount he will remain in jail.
The appellant filed an appeal against his conviction and sentence, which came up for hearing before the learned Additional Sessions Judge, Burewala District Vehari who vide his judgment dated 02.02.2010 dismissed the appeal by maintaining the said conviction and sentence.
2. Briefly, the prosecution story as set forth in FIR, lodged at the instance of Asjad son of Shareef is that his brother namely, Amjad Pervaiz used to ply a Suzuki Van No, 877-304/86 Karachi 87 for pick and drop of the school children. On the fateful day i,e, 24.08.2004 at 5:45 a.m. his brother Amjad Pervaiz was driving the said Suzuki van towards Marzi Pura for brining children. On the way a Truck No, 6499/SGD was coming on G.T. Road which was driven by Gulzar Khan, the petitioner, very rashly and negligently. It tried to overtake the said van from wrong side hitting the front right side of the truck with the van and the later smashed with the road side fence. In that accident, his brother Amjad Pervaiz sustained multiple injuries on his head and other parts of body who was taken to the hospital by Muhammad Yaqoob Dar and Aftab Azeem in the injured condition but he succumbed to the injuries.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were-distributed to the accused and charge was framed against him to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as 7 PWs during the trial. The appellant was examined under Section 11 342 Cr.P.C. but he did not opt to make a statement under Section 340(2) Cr.P:C. and to adduce defence evidence. In answer to a question about his involvement he deposed that the PWs are inter se related and he has been falsely implicated by the PWs. He is innocent in this case.
5. The main contention of the learned counsel for the petitioner is that neither the FIR nor the site- plan was exhibited which was the requirement of law to establish the prosecution case. Refers to the statement of PW-2/complainant who could not prove that the petitioner was rash and negligent in driving within the definition of Section 320 PPC. Also adds that he exercised maximum care and caution while driving the big loader/vehicle but the death was caused due to the negligent driving of deceased driver of Suzuki Van as he tried to overtake the truck and struck the fen6e because of his over-speeding. The learned Additional Prosecutor General, however, opposed the submissions made by the appellant.
6. Arguments heard. Record perused.
7. A perusal of the record reveals that complaint was exhibited as Exh.PA but neither the FIR nor site-plan was exhibited. Dr.Amjad Shakeel appeared as PW-7 who described all 10 ante-mortem injuries sustained by the deceased causing his death. As per Post-mortem Examination (Exh.PB) the dead body was brought by someone named Saddar Din who was not produced as prosecution witness. PW2/complainant and the eye-witnesses i,e, PW-2 (complainant) and PW3 have appeared to prove the prosecution case but the former admitted that his Riksha was going behind the truck in slow speed but he could not ascertain whose mistake has caused the accident. It has also not been brought on record that truck was over loaded. The appearance of the eye-witnesses at the earlier hour of the morning at the place of occurrence is not free from doubt. Besides, the eye-witnesses could not view the occurrence as they were much behind the truck.
8. Keeping in view the evidence on record ingredient of Section 320 PPC has not been found they are speedy in voilative of traffic rules is not attracted. The position of truck and the crash of Suzuki wagon is also not brought on record. No evidence was produced that the appellant was rashly driving in violation of traffic rules. Even fast driving cannot be construed as rash driving as it was G.T, Road i,e, a Highway. Places reliance on Farman Ullah vs. The State and others [2007 P.Crl.LJ 1393] wherein in Para-8 it is held as under: "To constitute offences under Sections 279/320,P.P.0 it is necessary for the prosecution to prove that besides over speeding, the driver was also guilty of driving rashly and negligently."
9. For what has been stated above, this revision is allowed as a result of which the impugned judgment of conviction is set aside and the petitioner is acquitted of the charge. He is on bail; his sureties are absolved from the liability of surety bonds.