ABDUL HAMEED BALOCH, J.---This Criminal Appeal has been filed by the appellant against the judgment dated 03.08.2021 ("the impugned judgment") passed by the learned Additional Sessions Judge, Uthal ("the trial court"), whereby the appellant was convicted and sentenced as under: 'Therefore, the accused Juma Khan son of Bostan is convicted and sentenced under section 320, P.P. C. for five years' R.I. and shall also pay Diyat amount Rs.2,777,353/- (Rupees Two Million Seven Hundred Seventy Thousands Three Hundred Fifty Three only) equal to 30630 grams of silver to the legal heirs of deceased Rasool Bakhsh. In case of non-payment of Diyat amount the accused shall be dealt under section 331(2), P.P. C. The accused also convicted under section 337/G, P.P.C. and sentenced for (01) year's R.I. and shall also pay Daman of Rs. 10,000/- (Rs. Ten Thousands only) to injured Sakeena. In case of non-payment of Daman amount, the accused shall be dealt under section 337-X(2), P.P.C. The accused is convicted and sentenced under section 427, P. P.C. for (02) years' R.I with fine of Rs.5000/- (Rs. Five Thousands only). In default whereof to further undergo S.I for One (01) Month. The accused is convicted and sentenced under section 279, P.P.C. for (02) years' R.I. with fine of Rs.3000/- Rs. Three Thousands only). In default whereof to further undergo 5.1 for One (01) month. Benefit of section 382-B, Cr. P. C. is extended as favour of accused.
All the sentences shall run concurrently."
2. Brief facts of the prosecution case are that on 31st May, 2020, the complainant Muhammad Ali Sheikh, SI lodged an FIR No.52 of 2D20, under sections 320, 337/G, 427, 279, P.P.C. with Police Station Uthal, alleging therein that on the stated date on receipt of information about accident took place at main RCD Road near Baloch Karwan Petroleum Uthal, he reached at the spot, whereby he came to know that at about 4:00 p.m. accused Juma Khan son of Bostan while driving 2-D car registration No.AYV-503 moving from Quetta towards Uthal, hit a motorcycle Super Star, upon which a man namely Rasool Bakhsh and a lady namely Sakeena were proceeding from Uthal towards their house at Gab Mandaa. Resultantly they both received serious injuries and during medical treatment injured Rasool Bakhsh expired in Hospital.
3. After completion of investigation, challan was submitted before the trial Court. Thereafter charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial.
During the trial, the prosecution produced as many as five witnesses.
4. On conclusion of prosecution evidence, the appellant statement under section 342 of the Cr.P.C. was recorded, in which he once again professed his innocence. The appellant also record his statement on oath as envisaged under section 340(2) of the Cr.P.C. but he did not produce any witness in his defence. The learned trial court, on conclusion of the trial, convicted and sentenced the appellant as mentioned hereinabove, hence this appeal.
5. Heard. Record perused. The prosecution in order to substantiate the accusation of appellant, produced five witnesses. On the written application of complainant Ex-P/1-A, the FIR was registered.
It appears from the record that the complainant is not an ocular witness. The prosecution case hinges on statement of ocular witness PW-3 Mst. Sakeena, PW4 examined the injured and produced MLC Ex-P/4-A and Ex-P/4-B. Before dilating upon the merit of case it would be appropriate to reproduce section 320, P.P.C. as under: "320. 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 the case, in addition to diyat, be punished with imprisonment of either description for a term which may extend to ten years."
6. In referred section the word "rush or negligence driving" has been used, meaning thereby the prosecution is under obligation to prove that the accused was driving the vehicle rashly and negligently. Mere driving a vehicle at high speed itself does not an offence. The word rashness does not point out to high speed by itself but has an element of negligence also approximate speed in a particular area to be established. The record reveals that none of the prosecution witnesses stated that the accused was driving rashly and negligently. The sole ocular witnesses PW-3 (injured) did not state the accused was driving rashly and negligently, she only stated the fact of the occurrence. The occurrence has not been denied. In Farmanullah's case (2007 PCr.LJ 1393) it was held that "It is well-entrenched principle of criminal justice that no one shall be construed into a crime in the absence of legally admissible evidence. There is no scope or space for basing judicial verdict on surmises and conjectures and even high presumption. Reliance in this regard may be placed on the view taken by the apex Court in the case of Mian Muhammad Latif v. The State PLD 1966 SC 201."
7. The collusion between 2D car and motorcycle has to determine factor because mere high speed cannot put reasonability on driver for the accident until and unless established that the accused was driving rashly and negligently. Beside that the court has to see contributory negligence of the driver of the second vehicle/motorcycle as well but in the instant case the trial court has overlooked this aspect and passed the impugned judgment which is based on presumption. In this regard reliance is placed on the case of Khair Muhammad Shah v. State 2018 PCr.LJ 914, whereby it has been held as under:
11. The prosecution is duty bound to establish that appellant was driving the offending vehicle in a rash and negligent manner. The prosecution must prove rash and negligent driving by leading independent and cogent evidence. The rash and negligent driving must be exhibited and proved on record. It seems that the learned trial Court, while convicting the appellant, has drawn wrong conclusion from the statement of complainant regarding the payment of burial expenditures and forgiving the appellant in the name of Almighty Allah, because it is well settled principle of law that while trying a criminal case, it is the duty of the Court to appraise the evidence strictly according to the legal requirements described by law without being swayed away emotionally for any other extraneous reasons which fall outside the pale of legal jurisdiction of appraisement evidence. In a criminal jurisprudence, it is invariably the duty of the prosecution to prove the case against the accused beyond doubt and the accused is presumed to be innocent until the case is fully proved against him and in that process not only if there is a room for doubt, benefit thereof is to go to the accused but if any legal provision which is to be relied upon in the appraisement of the evidence and it is open to two interpretations, one beneficial to the accused is to be adopted.
While holding this view. I am fortified with the observations made by the Hon'ble Supreme Court in the case of Khushal v. State (1971 SCMR 357), which reads as under: "Where there are two possibilities open upon the evidence the possibility, which is more favourable to the accused must be accepted, if it otherwise fits in with the facts and circumstances of the case."
12. It is evident from the record that the appellant has shown a good conduct, and grace by financially assisting the deceased's family, though he was not at fault. Such conduct was required to be appreciated; however, the learned trial Court has convicted him while considering it an admission on his part contrary to law. It was the bounden duty of prosecution to prove its case beyond any doubt. The prosecution has to stand on its own legs and every benefit of doubt will go to the accused. It is well settled principle of law that surmises and conjectures cannot take place of proof. There is nothing on record on the basis of which it could be ascertained that the accident in question was the result of negligence on the part of appellant. The learned trial Court has simply relied on the statement of complainant that the deceased was hit from wrong side.
13. No doubt, as observed by the learned trial Court, a young man has lost his lift in the instant pathetic episode while leaving behind minor kids, but the occurrence did not appear to be taken place in the manner as alleged by the prosecution. According to the prosecution's own case, the deceased was driving a motorcycle at the time of accident, which was fully loaded with stationary articles. In such view of the matter, the possibility that the accident in question occurred 'due to negligence on the part of deceased, cannot be ruled out. It is the bounden and moral obligation of prosecution to prove its case against the accused ' person beyond reasonable doubt and the conviction cannot be awarded merely on the basis of presumptions, surmises and conjectures."
Thus, in view of the above, the appeal is allowed. The impugned judgment dated 03rd August, 2021, passed by Additional Sessions Judge Uthal in Crime No.52/2020 lodged with Police Station Uthal, is set-aside and the appellant Juma Khan son of Bostan is acquitted of the charge under sections 320, 337/G, 427, 279, P.P.C. The appellant is on bail, his bail bonds be discharged forthwith.