TARIQ SALEEM SHEIKH, J. - This revision petition under Sections 435/439 Cr.P.C. is directed against judgment dated 4.5.2018 passed by the learned Additional Sessions Judge, Sahiwal, whereby conviction and sentence awarded to the Petitioner by the learned Magistrate Section 30, Sahiwal, in case FIR No.190/2012 dated 18.5.2012 registered at Police Station Yousafwala, District Sahiwal, was upheld.
2. Brief facts of the case are that on 18.5.2012 Complainant Mukhtiar Ahmad (PW-1) made a statement (Exh.P A) before Zawar Ahmad/SI (PW-8) to the effect that at about 1:00 a.m. he along with Allah Rakha, Khalid Mehmood and other family members were going on Suzuki APV van No.LEA-885 driven by Sajid Aleem from Sahiwal to the Lahore Airport to drop Ali Sher, Hafiz Shameer Ahmad, Mst. Paris Bibi, Mst. Bhirawan Bibi who were proceeding for Umrah. When they reached Bridge 55/5-L one of its rear tyres got punctured. All the passengers alighted and the driver started changing the tyre. Suddenly a tractor-trolley bearing registration No. TS-5804 loaded with chaff rashly and negligently driven by an unknown driver came and hit the van from behind due to which it was badly damaged.
As a result of the accident, the persons busy in changing the tyre, namely , driver Sajid Aleem, Ali Sher and Hafiz Zawar Hussain, were killed on the spot while Shameer Ahmad (PW-2) and Bhirawan Bibi (PW-3) were seriously injured. The driver of the tractor-trolley fled from the scene. Mukhtiar Ahmad went to the police station to make a report about the incident when he came across Zawar Ahmad/SI (PW-8) at Adda Qadir-Abad who recorded his statement (Exh.P A) and sent it to the police station through Mazhar Hussain 55/C for registration of case. Khalid Mehmood 788/HC (PW-4) received the said complaint and drew up FIR No.190/2012 (Exh.P A/2) on the same night at 2:30 a.m.
3. The investigation of the case was also entrusted to Zawar Ahmad/SI (PW-8). He reached the place of occurrence, prepared Injury Statements and Inquest Reports of the deceased and despatched the dead bodies for autopsy under the escort of Mazhar Hussain 55/C. Then he prepared rough site plan of the place of occurrence Exh.PK and inquired about the witnesse s to record their statements under Section 161 Cr.P.C. He was told that they were busy in the funeral of the deceased and would be available after their burial. None of the witnesses appeared before Zawar Ahmad/SI (PW-8) until 21.5.2012 when he was transferre d. After him the investigation of the case was entrusted to Noor-ul-Hassan/ASI (PW-5). On 24.5.2012, PWs Allah Rakha and Khalid Mehmood (given up) nominated the Petitioner , Noor Ahmad. During the investigation Noor-u l-Hassan/ASI found that he had committed the of fence. Report under Section 173 Cr .P.C. was submitted accordingly .
4. The learned Magistrate summoned the Petitioner to face trial and indicted him under Sections 320, 427, 337-G and 279 PPC on 25-1 1-2013. The Petitioner denied the charge and claimed trial.
5. The prosecution examined eight witnesses to prove its case. Complainant Mukhtiar Ahmad (PW-1), Shameer Ahmad (PW-2) and Bhirawan Bibi (PW-3) furnished ocular account of the occurrence while Dr. Shahid Rasool (PW- 6) provided medical evidence. Rehan Saeed (PW-7), Senior Technician, Emerg ency Medico-legal Department, DHQ Teaching Hospital, Sahiwal, adduced Injury Statement of Hafiz Zawar Huss ain (Exh.PF), Inquest Report of Sajid Aleem (Exh.PG/1-4) and Inquest Report (Exh.PH) and Postmortem Report No.11/SR/2012 dated 18.5.2012 (Exh.PJ) of Ali Sher. The Investigating Officer, Noor-ul-Hassan/ASI (PW-5) and Zawar Ahmad/SI (PW-8), gave the details of their investigation. The remainin g witnesses were formal in nature. It is pertinent to mention here that the police had mentioned Allah Rakha and Khalid Mehmood as private witnesses in the calendar of witnesses but during the trial the prosecution moved an application seeking permission to produce Shameer Ahmad and Bhirawan Bibi who were allegedly injure d in the accident. The learned Magistrate accepted the said application vide order dated 25.11.2015 whereupon they were examined as PW-2 and PW-3 respectively . Subsequently , on 13.3.2018, the learned prosecutor gave up Allah Rakha and Khalid Mehmood being unnecessary and closed the prosecution evidence.
6. After the prosecution was through with its evidence the learned trial Court recorded the statement of the Petitioner under Section 342 Cr.P.C. He denied the allegations and stated that he has been involved in this case due to suspicion. He neither got his statement recorded on oath under Section 340(2) Cr.P.C. nor produced any evidence in his defence.
7. On the conclusion of the trial, vide judgment dated 29.3.2018, the learned Magistrate convicted the Petitioner under Section 320 PPC on three counts for committing Qatl-i-Khata of Sajid Aleem, Ali Sher and Hafiz Zawar Hussain by rash and negligent driving and sentenced him to simple imprisonment for one year on each count and to pay Diyat in the sum of Rs.31,55,542/- to the legal heirs of each deceased and to remain in jail till it is paid.
However , he acquitted him of the charge under Sections 427, 337-G and 279 PPC. All the sentences of imprisonment were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was extended to him. The Petitioner preferred appeal against his conviction and sentence which was dism issed by the learned Additional Sessions Judge, Sahiwal, vide judgment dated 4.5.2018. Hence, this revision petition.
8. The learned counsel for the Petitioner contended that the prosecution had failed to prove the charge under Section 320 PPC against the Petitioner beyond reasonable doubt. The learned Courts below had not appraised the evidence properly which had caused serious miscarriage of justice. He argued that, firstly, FIR No. 190/2012 (Exh. PA/2) was registered against an unknown person and there was not an iota of evidence which could show that it was the Petitioner who was driving the tractor-trolley which killed Sajid Aleem, Ali Sher and Hafiz Zawar Hussain. Secondly, Complainant Mukhtiar Ahmad (PW-1), Shameer Ahmad (PW-2) and Bhirawan Bibi (PW-3) were not the eyewitnesses of the accident and the prosecution had planted them. Lastly, there was no evidence that the tractor-trolley was being driven rashly and negligently. To run a vehicle at high speed was not an offence by itself. He prayed that the Petitioner's revision be accepted and he may be acquitted of the charge.
9. On the other hand, the learned Deputy District Public Prosecutor assisted by the learned counsel for the Complainant controverted the above contentions. He contended that the Petitioner rashly and negligently drove the tractor-trolley and killed three persons and injured two others which was duly proved at the trial. The prosecution witnesses had no enmity or ill-will against the Petitioner to falsely implicate him in this case. They were trustworthy and despite his best efforts the Petitioner could not impeach their credibility during cross-examination.
He prayed that this revision petition be dismissed and conviction and sentence awarded to the Petitioner be upheld.
10. I have heard the learned counsel for the parties and have examined the record with their able assistance.
11. The accident took place near Bridge 55/5-L on the G.T. Road in the wee hours on 18.5.2012. Mukhtiar Ahmad (PW-1) lodged FIR No.190/2012 (Exh.P A/2) at Police Station Yousafwala, District Sahiwal, against an unknown person. In his complaint Exh.P A and FIR Exh.P A/2 Mukhtiar Ahmad (PW-1) specifically stated that he was accompanying his family members in the ill-fated APV van but during the trial he conceded that he was not with them and was informed at his house on his phone. In this view of the matter , his testimony may be relevant to the extent of reporting the matter to the police. Rest is all hearsay and inadmissible.
12. The Petitioner was implicated in this case six days after the occurrence (i.e. on 24.5.2012) at the instance of Allah Rakha and Khalid Mehmood who were allegedly among those going to drop the pilgrims at the Lahore Airport and were eyewitnesses of the accident. The police mentioned their names in the calendar of witnesses but the learned prosecutor did not examine them during the trial and gave them up being unnecessary . Consequently , the record is completely silent as to how his name surfaced in this case and on what basis he was accused of the commission of the offence. Even the Investigating Officer, Noor-ul-Hassan/ASI (PW-5), did not speak a word about it in his deposition at the trial. The learned counsel for the Complainant argued that the tractor was owned by Haji Ijaz Ali son of Muhammad Fazil and the Petitioner was his driver who was driving it at the fateful time. According to him, the prosecution learnt about the Petitioner 's involvement from him when he made an application before the learned Magistrate for superdari of the tractor on 24.5.2012. I have gone through the said application and observed that it does not contain any such information. Be that as it may, Haji Ijaz Ali was a material prosecution witness but he was not produced at the trial.
13. According to the prosecution, Shameer Ahmad (PW-2) and Bhirawan Bibi (PW-3) were injured in the accident so it produced them for the ocular accoun t. Although their names were not mentioned in the calendar of witnesses on the application of the prosecution the learned Magistrate summoned them vide order dated 25.11.2015. Both these witnesses deposed that on the fateful night they were travelling to Lahore in the APV along with their family members, including the aforementioned deceased, when they had to stop to replace a punctured tyre. Suddenly the Petitioner while negligently driving tractor-trolley bearing registration No.TS-5804 loaded with chaff rammed into the van. He knocked down Sajid Aleem, Ali Sher and Hafiz Zawar Hussain who were changing the tyre and they were instantaneously killed. They maintained that they were also seriously injured. However , perusal of the record reveals that these witnesses made only a general statement that they sustained injuries in the occurrence but did not specify any of them. The prosecution did not produce their medico-legal certificates either . All this was of vital importance to confirm their presence at the spot. It is noteworthy that owing to lack of evidence the learned trial Court acquitted the Petitioner of the charge under Section 337-G PPC. Neither the State nor the Complainant has filed appeal thereagainst.
14. Admittedly , PWs Shameer Ahmad and Bhirawan Bibi did not know the Petitioner prior to the accident yet they positively nominated him for driving the tractor-trolley . One wonders how they implicated him. Since the driver fled from the scene immediately after the occurrence it is doubtful whether they even had his glimpse in the darkness of the night. More importantly, no identification test parade was ever held. The learned counsel for the Complainant vehemently contended that the PWs pointed their accusing fingers at the Petitioner while deposing before the learned trial Court which was sufficient to bring home guilt to him. I am afraid, the argument is misconceived. The Courts in our country are always skeptical about such identification. In Javed Khan alias Bachha and another v. The State and another (2017 SCMR 524), the Hon'ble Supreme Court of Pakistan reasoned: "As regards the identification of the appellants before the trial court by Nasir Mehboob (PW-5), Subedar Mehmood Ahmed Khan (PW-6) and Idrees Muhammad (PW-7) that too will not assist the prosecution because these witnesses had a number of opportunities to see them before their statements were recorded. In State v. Farman (PLD 1995 SC 1), the majority judgment of which was authored by Ajmal Mian J, the learned judge had held that an identification parade was necessary when the witness only had a fleeting glimpse of an accused who was a stranger as compared to an accused who the witness had previously met a number of times. The same principle was followed in the unanimous judgment of this Court, delivered by Nasir Aslam Zahid J, in the case of Muneer Ahmad v. State (1998 SCMR 752), in which case the abductee had remained with the abductors for some time and on several occasions had seen their faces. In the present type of case the culprits were required to be identified through proper identification proceedings, however, the manner in which the identification proceedings were conducted raise serious doubts (as noted above) on the credibility of the process. The identification of the appellants in court by eyewitnesses who had seen the culprits fleetingly once would be inconsequential."
In the instant case, so far as Bhirawan Bibi is concerned, her identification of the Petitioner in Court is particularly of no value because she admitted in her cross-examination that at the time of accide nt she suffered an acute trauma and his name was disclosed to her by Mukhtiar Ahmad (PW -1).
15. As already discussed, "rash or negligent driving" is an essential ingredient of the offence under Section 320 PPC. The words "rash" and "negligent" in the context of driving a vehicle were interpreted by this Court in State through Advocate General, N.W .F.P. v. Mohib Gul [PLJ 1974 Cr .C. (Pesh) 586] as under: "The legal principles in regard to cases of rash and negligent driving are more or less well-established. The mere fact that a vehicle is driven at fast speed would not prove rashness and neglig ence unless, of course, all the attending circumstances are taken into consideration. A person driving a motor-veh icle at the speed of say 20 miles an hour on a road on which children of small ages are running about would be rash and negligent. But the same would not be true in the case of a highway even if he was to drive at the speed of 70 miles an hour. The criterion, in nutshell in all such cases, is whether upon the evidence on record a person can be said to have been driving with due care and caution or else had been negligent i.e. had omitted to do something which a reasonable man, guided by the considerations which ordinarily regulate the conduct of human affairs would do, or done something which a prudent and reasonable man would not do."
In other words, mere speed of a vehicle does not by itself establish that the vehicle was being driven rashly or negligently . In Muhammad Sarwar v . The State (1995 PCr .LJ 1 152) it was held: "The most important ingredient to establ ish a charge under Section 320 PPC is 'rash or negligent driving'. The factum of rash and negligent driving is not proved by expression or these words or expression of 'high speed' alone. The prosecution has to show that at that particular time when the accident took place, the condition of the traffic or the road was such which necessitated a slower speed and that the tractor was being driven in an excessive speed keeping in view the quantum of traffic on the road. Moreover , it is nowhere in evidence that the tractor was being driven in violation of the traffic rules which led to the accident in question and, therefore, could be equated with rashness or negligence. The approximate speed at which the tractor was being allegedly driven by the appellant Muhammad Sarwar has not been fixed by any prosecution witness to lead to a reasonable conclusion that the same was on the higher side in view of the quantum of traf fic and the nature of the road in question."
The Supreme Court of India also had the occasion to consider the above-mentioned terms in the case of Ravi Kapur v . State of Rajasthan (AIR 2012 SC 2986 = 2013 SCMR 480 ). It said: "Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently , it would amount to 'rash and negligent driving'..."
16. In the instant case, apart from the question of identification of the Petitioner as the driver of the tractor-trolley, the prosecution was obligated to prove that he was driving it rashly or negligently. PWs Shameer Ahmad and Bhirawan Bibi deposed that they had parked their vehicle on the yellow shoulder of the road and had switched on its parking lights and indicators yet the Petitioner collided with it. The Investigating Officer, Zawar Ahmad/SI (PW-8), did not verify this fact in his deposition. Even site plan (Exh.PK) is of no avail to the prosecution because it only indicates the place of the incident. It neither shows whether the road had any yellow shoulder nor specifies the location of the two vehicles. More importantly, the APV van was not produced during the trial. Rash and negligent driving is a question of fact which must be proved by the prosecution in accordance with law and the settled principles of criminal jurisprudence. In Muzaffar Ali alias Nannah v. The State (1999 MLD 567), the Court held that "rash and negligent driving by the accused must be conclusively established by the prosecution in order to secure conviction against him." Similarly, in another case reported as Ghulam Mustafa v. The State (2004 PCr.LJ 1869) it was ruled that "independent evidence regarding the aforementioned essential ingredient was a must." The mere fact that some witnesses had verbally asserted before the learned trial Court that the truck was being driven carelessly and negligently or that it was being driven at a fast speed does not by itself suffice to establish rash or negligent driving. In the case in hand the prosecution has failed to bring any independent evidence on record to prove that the tractor-trolley was being driven in a manner which could be termed as rash or negligent. The learned counsel for the Complainant vehemently argued that it was common knowledge that people recklessly drive heavily loaded tractor-trolleys on the highways which endanger other road users and frequently cause accidents. He contended that the Petitioner was one such driver who took the lives of three innocent persons and injured two others. I am afraid, an accused cannot be convicted on the basis of suppositions. Reliance is placed on Muhammad Lupman v. The State (PLD 1970 SC 10) and Muhammad Jamshaid and another v . The State and others (2016 SCMR 1019 ).
17. The prosecution could not prove that Shameer Ahmad (PW-2) and Bhirawan Bibi (PW-3) were injured but there is no doubt that three men were killed in the accident - a fact which also finds support from evidence furnished by Dr. Shahid Rasool (PW-6). The prosecution has failed to connect the Petitioner with the offence and the offender (whoever he was) has gone unpunished. This is a classic example of defective investigation and inefficiency on the part of the investigating agency. Qatl-i-Khata by rash and negligent driving is a distinct category of offences for which the investigating agency needs to have a special approach. This distinction arises because it is difficult to find witnesses who are in a position to depose about the sequence of vital events during the few moments immediately preceding the actual accident which could help in ascertaining its true cause. This difficulty is sometimes compounded when the driver manages to flee from the scene after the crash (as happened in the instant case) and there is problem in tracing/identifying him. The Supreme Court of India highlighted this dilemma in Nageshwar Sh. Krishna Ghobe v. State of Maharashtra (AIR 1973 SC 165). It observed that "when accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of co incidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter , whatever be the reason for this disinclination. If, however , they do feel interested in going to the spot in their curiosity to know something more, then what they may happen to see there would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. " In view of the above, the following guidelines for the investigating agencies are suggested: i) The Investigating Officer should carry out a thorough survey of the place of occurrence to ascertain the cause of the accident. "Rashness is doing a dangerous act with the knowledge that it may cause injury. The criminality lies in running the risk of doing such act with recklessness or indifference as to consequences." Common reckless driving behaviours include speedy, drugged driving, quick lane changes, swerving, disobeying traffic signals and other traffic violations. Similarly, the collision may occur due to distracted driving, including texting and GPS distractions, improper loading and securing of cargo, lack of vehicle fitness (particularly tyre failure and defective brakes). On the other hand, criminal negligence may be occasioned by failure to exercise proper care and caution. There is an abundance of physical evidence at the crash scene - evidence that is unique to that incident - which can help the investigator. This would inter alia consist of damage evidence, skid mark evidence, tyre evidence, marks on the roadways. ii) The Investigating Officer must ascertain as to whether there is any CCTV cameras which cover the collision scene and if there is one he should secure the footage. Besides, he should obtain photographs of the site and the vehicles. iii) Where the driver has managed to run away from the crime scene, finger prints and forensic evidence from the vehicle must be collected. iv) The ownership of the vehicle must be investigated and it should be determined as to who was driving the vehicle at the relevant time. v) Statements of all the eyewitnesses and other relevant witnesses should be recorded under Section 161 Cr .P.C. vi) The District Public Prosecutor must thoroughly examine the case before it is submitted to the Court for trial.
18. For what has been discussed above, I am inclined to hold that the prosecut ion has failed to prove its case against the Petitioner beyond reasonable doubt. The judgments passed by the learned Courts below suffer from gross misreading/non-reading of evidence . As such, this revision petition is accepted . His conviction and sentence are set aside and he is acquitted of the charge. He is in jail. He shall be released forthwith if not required to be detained in any other case.