SYED MUHAMMAD FAROOQ SHAH, J.---Vide impugned judgment dated 12.07.2005, pronounced by the learned Vth Additional Sessions Judge, Karachi (East), in Sessions Case No, 210/2002 (FIR No, 228/2001 lodged at Police Station, Ferozeabad under section 320, P.P.C.); whereby Appellant Muhammad Ashraf was convicted and sentenced to undergo R.I. for five years and to pay Diyat amounting to Rs, 2,90,372/- to the legal heirs of deceased for an offence punishable under section 320, P.P.C, in default of payment of Diyat, the accused be detained in jail till the payment of Diyat amount. Through the captioned appeal, a prayer to set-aside the impugned judgment has been made.
2. Prosecution story in nutshell is that on 22.05.2001, at about 1800 hours, the appellant while driving Motor Cycle bearing registration No, KCM-2483, in rash and negligent manner, at main Khalid Bin Walid Road, hit one Mehboob Alam son of Abdul Ghani, who subsequently succumbed to his injuries. On completion of usual investigation, the appellant was charge sheeted under Section 173, Cr.P.C. On commencement of trial, the appellant pleaded not guilty to the charge. At the trial, prosecution examined all material PWs and thereafter the statement of the accused was recorded under section 342 Cr.P.C. The trial culminated on pronouncement of impugned judgment, as supra.
Following grounds have been averred in the memo. of appeal and reiterated by the learned Counsel for the appellant.
"1. That the judgment/order of the learned Vth Additional District and Sessions Judge, Karachi
(East) is illegal, void and same is not tenable under the law.
2. That there is no evidence to prove that the appellant was driving rashly and negligently.
3. That the death of the deceased is contributed by himself, who was not carefully.
4. That the Motor Cycle driven by the appellant/accused did not hit the deceased.
5. That the Motor Cycle is not examined by the Motor Vehicle Inspector, and even nor the Motor Cycle was ceased by the Police.
6. That the sentence awarded to the appellant is excess and severe under the circumstances of the case.
7. That the appellant has been convicted on evidence, which is highly interested.
8. That the appellant crave to urge further/additional grounds at the time of submission and hearing of this appeal."
3. A perusal of prosecution evidence transpires that PW1 SIP Masroor Ahmed, who is an eye-witness of this road accident, deposed that on 25.01.2001, at about 1800 hours, while he was present on his duty place, one boy, who was driving Motorbike in high speed, rashly and negligently, hit one pedestrian, who wanted to cross the road. After hitting the said pedestrian, the said motorbike rider went away from the scene. The said pedestrian became injured and succumbed to his injuries at the spot. He further deposed that the motorcyclist was driving the motorbike in rash and negligent manner. He identified the motorcyclist/ accused, present in Court. PW1 was cross-examined on that point that the accused is not the very person, who was riding on motorbike in high speed and hit to the deceased but could not be shattered by the defence Counsel. However, PW1 admitted that he could not note the registration number of motorcycle, which was plying by the accused PW Abdul Salam Mehdi, advocate, who claimed to be brother-in-law of deceased, is not an eye- witness of accident but he had only learnt about the accident. PW Muhammad Shehzad, the relative of appellant/accused has produced the accused Muhammad Ashraf, who caused this accident. PW ASIP Khizr ul Hassan, who was posted at said Traffic Police Chowki and had seen the accident, stated that the accused was riding on the motorbike, hit one pedestrian, who fell down and became injured and subsequently succumbed to his injuries on the spot. He identified the appellant/ accused, present in Court, to be the same person, who was plying motorbike in high speed and caused this accident. This witness further stated that the accused compromised the matter with Complainant party but meanwhile one person came forward, who claimed himself to be real brother of deceased, therefore, no compromise arrived in between the parties. Evidence of PW Shafiqur Rehman is hearsay, who is mushir of arrest of accused, and identified the accused to be the same. PW SIP Ahmed Ali is also not an eye-witness but he has conducted the investigation and stated that on the day of incident, he was posted at Police Station, Ferozeabad and received entry from police control about arrival of dead body of deceased at Jinnah Hospital. He proceeded there and conducted proceedings under section 174, Cr.P.C. He has further stated that during investigation, he came to know that deceased Mehboob Alam was going 'from Khalid Bin Walid Road to Shahrah-e-Quaideen when all of sudden motorbike hit deceased, who fell down and became injured and subsequently succumbed to his injuries on the spot. PW MLO Dlip Khatri, who conducted autopsy of deceased, produced postmortem report and cause of death certificate with his opinion that cause of death is cardio Respiratory failure due to acute head injury resulting from hard and blunt substance could be of road traffic accident.
4. On conclusion of prosecution evidence, statement of accused was recorded under section 342, Cr.P.C. In his statement, the appellant claimed his innocence, beside his false implication in this case by the complainant.
5. Arguments heard. Record Perused.
6. In penultimate paragraph, reproduced hereinbelow, by thrashing out the prosecution evidence, the trial Court held the accused to be guilty of the offence under section 320, P.P.C.:-- "This is all evidence which has been brought on record by the prosecution. Prosecution has produced all material witnesses who all have stated that accused is same person, who was plying motor-bike No, KCM-2483 in high speed and rash and negligent manner and hit pedestrian/deceased, Mehboob alam who became injured and subsequently succumbed to his injuries. It has also come on record that accused had fled from scene and after five months of registration of FIR he was produced by his Uncle and during investigation period he tried to compromise the matter with the complainant party, meanwhile one person PW Abdul Sulam Mehdi, Advocate has come forward, who himself claimed to be brother of deceased therefore said compromise had not arrived between the parties, this fact gives support to the prosecution version that this accident has been caused by accused Muhammad Ashraf. Thus under the discussed circumstances, I am of the humble view that prosecution has been able to establish a prima facie case against the present accused beyond reasonable doubt as nowhere accused has taken plea that he is not real culprit of this crime nor he has desired to examine himself on Oath. Thus all' these go to prove that accused is guilty of the offence under section 320, P.P.C.
7. It is not out of context to mention here that this appeal was admitted for regular hearing vide order dated 12.09.2005 and subsequently on 19.09.2015, the appellant was granted bail on his furnishing solvent surety in the sum of Rs, 100,000/- and P.R. Bond in the like amount. Thereafter on 02.11.2015, due to his non-appearance, notice was issued to him and his surety. Due to his absence on 22.01.2016, NBWs to the appellant and BWS in the sum of Rs, 50,000/-to the surety were issued.
On 10.02.2016, surety Muhammad Kashif appeared before this Court and undertook to produce the appellant. Again on 15.03.2016, due to absence of appellant and his surety, coercive process in shape of NBWs was issued through SHO Police Station, Ferozeabad. Subsequently, by orders passed on different dates, the absconder accused/appellant was arrested, which reflects from order sheet of this Court dated 26.08.2016 and presently he is confined in Central Prison, Karachi.
8. Learned Counsel for the appellant argued that the factum of rash and negligent driving by the accused is not found available in the whole story of the prosecution, therefore, in absence of such allegation of carelessness, rashness or negligence, the appellant, cannot be held liable for an offence punishable under section 320, Q & D Ordinance. Learned Counsel pointed out statements of prosecution witnesses and argued that the important factor of negligence, rashness in driving the vehicle has not been specifically assigned by PWs to the appellant; moreso, eyewitnesses are police officials and no private witness associated as witness in the instant case though it was a day time incident and many independent persons were found present at the place of occurrence; in such view of the matter, the prosecution has failed to prove the case of rash and negligent driving by the appellant.
7(sic). Conversely, learned Prosecutor refuted the contentions of learned Counsel for the appellant and submitted that both eye-witnesses are natural witnesses and their evidence in absence of any animosity, motivated with mala fide intention or malice is as good as any other private person. She supported the impugned judgment.
8(sic). All PWs examined by the prosecution have supported their version. There is no plausible reason to disbelieve the prosecution version without sufficient reason or cause, showing false implication of the appellant with motivated mala fide intention. Both police officials being eye- witnesses are the natural witnesses and their presence at the place of incident is proved, as they were performing their duties at the place of incident. Suffice it to say that the prosecution has succeeded to prove its case by adducing sufficient evidence on record that the deceased pedestrian was crossing the road and all of sudden, the motorcyclist/appellant while driving speedily hit the boy, who died due to injuries. Ocular account of accident furnished by the prosecution is inspiring confidence as both eve-witnesses are natural witnesses and there was no reason or motive to make a false statement against the appellant. Insofar as contention of the learned counsel that private persons did not lodge the FIR is not a reason to discard credibility of testimony adduced by the eye-witnesses; more particularly, they informed about the accident at the concerned police station and such entry was duly made in the station diary. It was a crowded locality and by not reducing speed or Motor Cycle by using brakes in working B condition, the appellant had committed an act of rashness and negligence.
9. The contradictions and discrepancies in the prosecution version as pointed by the learned counsel are of minors infirmities do occur in depositions recorded after some time and discrepancies and contradiction pointed by the counsel are natural in every case. In this case inconsistent defense adopted by the appellant amounting to a complete unbelievable version as the appellant in his statement recorded under section 342, Cr.P.C. stated that he was not recognize by any independent witness. Such statement of the appellant made voluntarily showing his involvement in commission of the offence charged with. A rash act with undue haste reflects from the act of appellant who was found driving the vehicle with uncontrolled speed in a thickly populated area and his such act amounts to negligence as he did not took proper care and caution which driver would take to guard against injury to others. In such view of the matter the prosecution has succeeded to establish that the appellant-was driving the Motor Cycle in rash and negligent manner and statement of eye-witnesses confirmed such act. In the case of Ravi Kapur v.
State of Rajasthan reported in 2013 SCM R 480 it was held that "while driving of a vehicle on a public way, there was an implicit duty cast on the drivers to see that their driving did not endanger the life of the right users of the road (vehicular users or pedestrians), and they were expected to take sufficient care to avoid danger to others". While defining the Doctrine of res-ipsa-loquitur' the Hon'ble Court held that "such Doctrine equally applicable to the cases of accident and not merely to the civil jurisprudence; said doctrine came to aid at a subsequent stage where it was not clear as to how and due to whose negligence the accident occurred; the Court with the aid of proper evidence might take assistance of the attendant circumstances and apply the said doctrine and it was held that said doctrine can also be applied where no direct evidence was brought on record".
10.It was further held in the aforecited ruling that a rash act is primarily an over hasty act and a rash act can be a deliberate act in the sense that it was done without due care and caution. It is imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution. The aforesaid doctrine has interpreted and defined as (i) the event would not have occurred but for someone's negligence, (ii) The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event, (iii) Accused was negligent and owed a duty of care towards the victim. Applying the principle of `res-ipsa-loquitor' it can safely be inferred that it was a serious accident that occurred in a crowded area due to uncontrolled speed and by not applying brakes by the appellant. There is consistency in statement of prosecution witnesses and there is no reason to disbelieve the statement of these witnesses as the pointed contradiction and discrepancies by the learned counsel are of minor nature. Suffice it to say that the scene of accident from the narration of the story clearly suggests that the appellant neither attempted to safe the victim nor even control its speed while driving. He had enough time to apply the brakes. In reply to the question whether he wants to say anything, he has not taken the plea that he had made effort to control the motorbike. On the contrary, the appellant made his escape good from the place of occurrence.
11. In view of the above facts and the evidence, the rash and negligent driving of Motorcycle resulting in the death of victim was established and therefore, the appellant deserved conviction.
However, the intensity of conviction, whereby in addition to the payment of Diyat amounting to Rs, 2,90,372/- to the legal heirs of the victim, the appellant was convicted to undergo five years R.I and other imprisonments on defaults were excessive and out of proportion though the record shows the delay in disposal of appeal mostly on account of the appellant. Consequently, this appeal is dismissed. However, the order of punishment of imprisonment is modified and the appellant is to remain in Central Prison till the payment of Diyat in the office of Nazir of this Court. The Nazir should locate the legal heirs of the deceased through the police concerned and help the NADRA authorities for payment of "Diyat" to them in accordance with law. It need not to reiterate that the appellant shall remain in custody till the payment of Diyat.