ABDUL HAMEED BALOCH, J.---This Criminal Appeal is directed against the judgment dated 29th April, 2017 (impugned judgment) passed by, the learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali (trial court), whereby the appellant was convicted under Section 320 Pakistan Penal Code (P.P.C.) and sentenced to pay total Diyat amount of Rs. 50,40,960/- to the legal heirs of Mst. Saeeda Bibi, Dado and Mst. Bhana and in default the appellant was ordered to be dealt under Section 331 P.P.C. The appellant was further convicted under Section 279 P.P.C. and sentenced to suffer two years' imprisonment and to pay fine of Rs. 30,000/- and in default to further suffer three months' simple imprisonment. The appellant was also convicted under section 337-G read with Section 337-A(i) (ii) (iii) and 337-F(i) P.P.C. and sentenced to suffer five years' imprisonment and to pay Daman of Rs.10,000/- to injured Muhammad Bachal, Allah Dina and Bachal Khan, five percent of Diyat as Arsh to injured Latifan and Gul Zadi, ten percent of Diyat amount as Arsh to injured Mst. Khursheeda also to pay Daman of Rs.10,000/- each to injured Mah Bibi, Didar Ali, Muhammad Bachal, Allah Dina and Bachal Khan and in default thereof the appellant be kept in jail, and be dealt with in the same manner as if sentenced to simple imprisonment until Daman and Arsh are paid in full with benefit of Section 382-B, Cr .P.C.
2. Precise facts of the ease are that on 6th January , 2016, FIR No.02 of 2016, under Sections 320, 337-G, 279, 427 P.P.C. was registered with Police Station Saddar Dera Murad Jamali, on the report of Allah Dina with the allegation that the appellant while driving passenger vehicle bearing No. WAA-240 near Haji Zaffarullah Jamali Petrol Pump National Highway , Dera Murad Jamali, in a rash and negligent manner , the same was got over turned in result whereof wife of complainant Allah Dina namely Mst. Saeeda Bibi, minor daughter Dado and Mst. Bhana wife of Raees Lal Muhammad died, while complainant, Mst. Latifa, Mst. Khurshida and other passengers namely Bachal, Bilawal, Didar , Gul Zadi, Mst. Mah Bibi received injuries.
3. After completion of investigation the challan was submitted before the trial court and after full dressed trial the appellant was convicted in the manner as mentioned in para-1 above, hence this appeal.
4. Heard learned counsel for the appellant, learned Additional Prosecutor Genera l and also perused the available record with their able assistance. In order to substantiate its case the prosecution has produced eight witnesses.
Among them PW-5, PW-6 and PW-7 are injured witnesses. None of the ocular witnesses in their testimony stated that the accident had taken place due to rash and negligent driving of the appellant. Even PW-2 the complainant was declared hostile by the prosecution. The remaining witnesses are not ocular witnesses. P.W.1 Abdul Hakeem Head Constable is police official. He was not present at the time of accident. PW-3 and PW-4 had examined the deceased and injured persons and issued Medico Legal Certificates.
5. Admittedly the accident was taken place due to overturn of the vehicle; resultantly two persons were died, while nine persons sustained different kind of injuries. The medical evidence was always supportive in nature and was never to be corroborative evidence to identify the culprit(s), as held by honorable Supreme Court of Pakistan in the case of Hashim Qasim v The State, 2017 SCMR 986 .
6. The learned trial court has accepted the plea of accused/ appellant recorded by the appellant in his statement under Section 342 Cr.P.C, wherein replying to question No. 1 the appellant stated that "It is correct, but it was not my fault, it happened due to breaking of tie-rod ". Whereas the trial court in para Nos. 14 & 15 of the judgment has held: "14. The court itself checked the afore-said vehicle when produced by PW-1 before the court which was found in good condition and its tie-rod was not broken. The relevant portion is reproduced as under . {{URDU TEXT}}
15. In these circumstances, there is need of no any other evidence and discussion to clear whether the prosecution has proved the charge against the accused or not when the accused himself admits his guilt and failed to prove the defence plea."
7. The learned trial court has not discussed the statements of prosecution witnesses, convicted and sentenced the appellant on the basis of reply of question No. 1, recorded by the appellant in his 342 Cr.P.C. statement. Admittedly the prosecution has to prove guilt of the accused beyond reasonable doubt. The judgment of the trial court is based on the statement of appellant recorded under section 342 Cr.P.C. and that on physical examination of the vehicle the tie-rod was not found broken. The record transpires that FIR Ex: P/8-A was registered on 6th January , 2016, while the vehicle was produced by PW-1 on 3rd October , 2016. Admittedly the vehicle Art: P/1 was parked with concerned Police Station. No report of Motor mechanic was produced whether the vehicle was checked after accident. When the law provides a thing the same be done on that particular manner .
8. The legal way of dealing with criminal case is that the court first should discuss the case in order to come to an 'independent conclusion with regard to the truthfulness of the prosecution witnesse s then examine the statement of accused under Section 342 Cr,P.C. If the court disbelieves the prosecution evidence then the court must accept the statement of accused as a whole with certainty . None of the ocular witnesses supported the prosecution case. The honorable apex Court held in the case of Wajahat Ahmed v . The State 2016 SCMR 2073 that: ---Similarly , it is by now well settled that statement of an accused recorded under section 342, Code of Criminal Procedure has to be rejected or accepted in toto.
9. The prosecution alleged that due to rash and negligent driving the accident has taken place. Mere driving in high speed did not constitute the offence where the element of negligence is lacking. It would be appropriate to reproduce the relevant sections: "Section 320 P.P.C: Punishment for qatl-i-khata by rash or negligent driving . Whoever commits qatl-i-khata by rash or negligent driving shall, having regard to the facts and circumstances of the case, in addition of Diyat, be punished with imprisonment of either description for a term which may extend to ten years."
"Section 337-G. Punishment for hurt by rash or negligent driving . Whoever causes hurt by rash or negligent driving shall be liable to the Arsh or daman specified for the kind of hurt caused and may also be punished with imprisonment of either description for a term which may extend to five years as T a'zir."
Reliance is placed on the case of Yasir Arafat v . The State, 2012 MLD, 61 1, wherein it was held: "7. Admittedly , the appellant was proceeding from Peshawar Saddar to his house in a motorcar bearing Registration No.LOE/1030 and when reached the place of occurrence, he struck the deceased on his head, who thereafter succumbed to the injuries at the hospital. The appellant was charged for rash and negligent driving but this fact has neither been mentioned in the murasila nor in the first report. The site plan reveals that the appellant was proceeding in the vehicle on his side and when the deceased was crossing the road, he was hit due to which he sustained injuries and became unconscious. No doubt, the deceased has lost his life in the episode but'the occurrence, did not appear to have been witnessed by any body . Moreso, driving of vehicle at high speed could not be considered and taken as a rash and negligent act because modern technology had provided for reasonable safeguard of stopping the same within no distance and, time. The factum of rash and negligent driving is not proved by expression of these words or expression of 'high speed' alone. The prosecution was supposed to show that when the accident took place, the condition of the traffic or the road was such, which necessitated a slower speed and that the motor car was being driven in an excessive speed keeping in view the quantum of traffic or the road. The record is also silent regarding the fact that the motor car was being driven in violation of the traffic rules, which led to the accident, therefore, could be equated with rashness and negligence. The approximate speed at which the motor car was being allegedly driven by appellant 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 traffic and the nature of the road in question."
In view of the above, the instant appeal is allowed. The judgment dated 29th April, 2017 passed by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali is set aside. The appellant Nabi Bakhsh son of Arbab is acquitted of the charge in Sessi ons case No.52 of 2016, pursuant to FIR No. 02 of 2016, Police Station Saddar Dera Murad Jamali. He is on bail, his bail bonds stand discharged.