ROZI KHAN BARRECH, J.---This order shall dispose of Criminal Appeal No.05 of 2018 which has been filed against the judgment dated 10.02.2018 (hereinafter "the impugned Judgment" ) passed by learned Additional Sessions Judge, Uthal at Hub (hereinafte r "the trial Court ") in P.P.C. Case No.04 of 2017 vide FIR No.01 of 2016 dated 15.02.2016 registered with Levies Station Bela, whereby the appellant was convicted under section 320, P.P.C. and sentenced to suffer R.I. for three (03) years and to pay Diyat amount Rs.19,35,594/- to the legal heirs of deceased Muhammad Akbar . The accused/appellant was also convicted and sentenced under section 279, P.P.C. for RI three (03) months. Both the sente nces were directed to run concurrently , in case of non-payment of Diyat amount the accused shall be dealt with under section 331(2), P . P.C.
2. The relevant facts of the case are that FIR No.01 of 2016 was registered with Levies Station Bela under sections 320, 279, P.P.C., on the written report of complainant Gulab Ali, Naib Tehsidlar/Incharge Nimi Check Post Bela, with the allegation that on 15.02.2016 he along with other levies officials namely Siraj Ahmed, Ghulam Sarwar and Muhammad Akbar were deputed at Mini Check Post Bela as Incharge and was busy in checking of the vehicles.
Meanwhile, at 9:30 p.m., the accused Zia-ul-Haq was driving a mini Bus bearing No.BMB-868, came from Karachi side, which was signaled to stop, but due to rash and negligent driving the bus hit constable Muhammad Akbar due to which he sustained head injuries who succumbed to injuries on the way to hospital. The driver of mini bus was apprehended who disclosed his name as Zia-ul-Haq son of Hassan Khan and he was arrested and shifted to Levies Station Beth. Hence crime report.
3. After completion of usual investigation, the challan was submitted before the learned trial Court. After full dressed trial, the trial court convicted the accused/appellant as mentioned herein above.
4. We have heard the learned counsel for the parties and gone through the available record with their able assistance. The accused/appellant has admitted the incident as well as death of the deceased.
He has also admitted that he was driving the offending vehicle but stated that he was not driving the same in a rash and negligent manner . Thus, the only aspect, which remains to be examined, is whether the appellant was driving the offending vehicle in a rash or negligen t manner? In case the, answer comes in affirmative then it is to be seen that whether there was any close proximity between his rash and negligent driving and the injuries sustained by the deceased. In order to bring home the charges under section 320, P.P.C., the answer to both the questions must come in af firmative.
5. While examining the case in hand on the touchstone of the above quoted principles, the case of the prosecution mainly rested upon the testimony of PW-1 Gulab Ali, Head Constable who is complainant of the case and PW-3 Abdul Khaliq, Constable/Levies Hawaldar . PW-1 Gulab Ali stated during cross-examination that he himself did not see the accident. PW-3 Abdul Khaliq stated in cross-examination that at the time of incident he was present in his guardroom. He further stated during cross-examination that he himself did not see the accident. PW-1 and PW-2 are the only eye-witnesses of the occurrence but they stated before the learned trial Court that they themselves did not see the incident. Both the above witnesses also stated that at the time of occurrence one Truck which was loaded with stones was parked on the road side and when the incident took place the deceased was checking the said truck.
6. It is another admitted feature of the case that the unfortunate incident took place at 9:30 p.m. Keeping in view the time of accident it can safely be inferred that at the time of accident it was pitch dark. It is very strange and astonishing that when PW-1 and PW-3 have not seen the accident, then how could they say that the accident took place due to negligence and carelessness of the appellant. Even the record is hopelessly silent about recording statement of any other passengers of mini bus and driver and cleaner of the truck which was parked on the road side. The visual sketch map of the place of occurrence is silent about any roadside light as well as about rear lights of the mini bus. The site map is also silent about presence of any eye witnesses on the spot, despite the fact that point number B and E (Ex.P/5-C) shows some katcha houses near the opposite site of the road but still no one from the inmates of the said houses were associated as a witness of the occurre nce. There is also no evidence about over speeding of the mini bus by the appellant nor the visual sketch map shows any signs of tyres as no rubber marks of the tyres being caused while applying the brakes with extreme power have been shown op the sketch map. The mini bus was not exami ned by the motor vehicle examiner nor the same was verified with regard to working condition of the brakes. The case against the appellant is one of no evidence particularly with regard to his rash or negligent driving, simply because no one from the travelling passengers or from the nearby houses were associated as witnesses by the prosecution.
7. It is by now well settled that driving a vehicle at high speed and considering the same as rash and negligent act is no more recognized by the prudent mind being a trite and baseless proposition. After development and research in automobiles the modern technology is providing an extraordinary and highly extensive braking system which are being installed in automobiles. Therefore, in case of any eventuality the vehicle can be stopped within a spur of a moment and therefore collateral damages can easily be avoided. Similarly the question of rashness and negligence in driving can also be gathered from the surrounding circumstances and act played by the accused who is/was driving the vehicle at the time of unfortunate accident. Therefore, under the legal parlance 'negligence' has been defined as an omission of some act, which a reasonable and prudent person guided by the consideration, which ordinarily regulate the human affairs would do or doing something which such like prudent person by similar consideration would not do. No mathematical formula is available to measure negligence, therefore, the negligence can only be judged and gauged upon the attending and surrounding facts and circumstances. Mere, fact that a vehicle was running at fast speed would not prove rashness and negligence, therefore, it can safely be concluded that speed does not matter in case of accident rather the rashness and negligence are condition precedents to prove the offence under section 320, P.P.C. For example a person driving a vehicle at a speed of 20 kilometers per hour on a road on which children are running or the same is generally being used for pedestrians only and an accident takes place, here the speed would not be considered as an offence but the rashness and negligence and it not require any further evidence.
8. Similarly , a person is driving a vehicle on a highway and the driver exceeds the speed of more than 100 miles per hour, if the driver was running the vehicle at the speed of more than 100 miles per hour. Therefore, while differentiating over speeding from rashness and negligence, the only parameter available is "reasonable care". In view of the above discussion when there are sufficient lacunas in the prosecution case in addition to absence of any evidence with regard to rashness and negligence of the appellant, the conviction recorded against the appellant on basis of such a sketchy and dubious evidence would be against the dictates of law and norms of justice.
9. No doubt, the deceased has lost his life in the episode but the occurrence does not appear to have been witnessed by any body . Moreso, driving of vehicle at a high speed could not be considered and taken as a rash and negligent act because modern technology has provided 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 mini bus 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 mini bus 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 mini bus 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 traf fic and the nature of the road in question.
Keeping in view this aspect of the case, it can safely be concluded that the prosecution has not succeeded to bring any reliable and convincing piece of evidence to establish the rash and negligent driving of the appellant.
In view of the above discussion, I am of the considered opinion that the prosecution has miserably failed to establish its case beyond any reasonable doubt, therefore, the impugned judgme nt dated 10.02.2018 passed by learned Additional District and Sessions Judge, Uthal at Hub, in P.P.C. case No.04 of 2017 is hereby set aside.
While extending benefit of doubt the appellant Zia-ul-Haq son of Hassan Khan is acquitted of the charge in FIR No.01 of 2016 Levies Station Bela under sections 320, 279, P.P.C. The appellant is on bail. The bail bonds furnished by the appellant shall stand discharged after fulfilling the requisite formalities.