' Through this criminal appeal, the appellant Muhammad Sarwar has challenged the judgment, dated 6-10-1994 passed by a learned Additional Sessions Judge, Rahimyar Khan whereby he while convicting the appellant under section 320, P.P.C. Sentenced him to five years' R.I. And to pay Diyat to the legal heirs of the deceased and was also given the benefit of section 382-B, Cr.P.C.
2. The prosecution case, according to the complainant Mst. Shahroo (P.W.1) is that on 3-4-1993 at about Aserwela she was going to her home from Village Jamaldinwali alongwith her sons, namely, Arif and Muhammad Alam and husband Khan Muhammad. Muhammad Arif deceased (aged 18/19 years) was driving a bicycle. As they crossed the bridge of Bhong Canal she saw Muhammad Sarwar appellant driving a tractor at a high speed. A blade was fixed behind the tractor. The accused-appellant hit the cycle at which Muhammad Arif deceased was riding and he fell down.
The appellant ran away leaving the tractor at the spot. Muhammad Arif was shifted to the hospital where he succumbed to the injuries.
3. The F.I.R. Exh.PA./1 in this case was recorded by Saeed Akhtar Khan, S.I. (P.W.8) on the statement of Mst. Shahroo (P.W.1) within the premises of Civil Hospital, Sadiqabad. He prepared injury statement Exh.P.F., went to the place of occurrence and prepared site plan Exh.P.G. Blood-stained earth was taken into possession vide memo. Exh.P.C., cycle (P.1) vide memo. Exh.P.D. And inquest report was prepared vide memo. Exh.P.H. Tractor (P.2) was taken into possession vide memo. Exh.P.E.
4. Besides the complainant Mst. Shahroo (P.W.1), the prosecution produced the following set of evidence:-- ' Khan Muhammad, who is the husband of Mst. Shahroo (P.W.1) appeared as P.W.2. He generally corroborated the statement of P.W.1. According to him the blade was fitted in front of the tractor.
P.W.3 Muhammad Alam is the brother of Muhammad Arif deceased. He too is an eye-witness.
According to him, Muhammad Sarwar appellant was driving the tractor at a high speed and had collided with the bicycle on the back. Sadiq Hussain (P.W.4) is a Police Constable. He took the dead body of Muhammad Arif deceased for post-mortem examination. P.W.5 is Dr. Muhammad Sadiq Zia, C.M.O. T.H.Q. Hospital, Sadiqabad. He examined the dead body and found the following injuries:- "A lacerated wound of almost 6" x 3" on the left side of skull. Bone fractured. Brain coming out.
Bleeding from both ears and nose. In my opinion the cause of death in this case is head injury due to road side accident. Report Exh.P.B. Was written and signed by me."
' He, however, admitted that he did not conduct the detailed post-mortem examination because the cause of death was evident from the external appearance of the dead body.
' P.W.6 Wazir Ahmad is a tractor mechanic who examined the tractor after the occurrence and found it in order. P.W.7 Abdul Majeed identified the dead body of Muhammad Arif deceased. P.W.8 Saeed Akhtar Khan, S.I. Recorded the F.I.R. And conducted the investigation. P.W.9 Maqbool Hussain, Inspector verified the investigation and prepared the final report under section 173, Cr.P.C. For submission of the same in the learned trial Court. P.W.10 Imam Bakhsh, S.I. Recorded formal F.I.R.
Exh.P.A./1 on the written application Exh.P.A. From Saeed Akhtar Khan, S.I. (P.W.8).
5. Muhammad Sarwar appellant when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication due to enmity and personal grudge of the prosecution witnesses.
6. In support of this appeal, the learned counsel for the appellant, has raised following pleas:--
(i) That it was an unwitnessed occurrence which is manifest from the fact:-- ' The prosecution is inconsistent on material particulars. P.W.1 states that the blade of the tractor was fitted behind the tractor whereas P.W.2 says that the blade was fixed in front of the tractor.
P.W.1 says that the appellant left the tractor and ran away while P.W.2 states that he fled away alongwith the tractor. P.W.1 in her cross-examination states that the police told her the name of the accused when they arrested him and the date of arrest is 16-4-1993 whereas the F.I.R. Was lodged on 3-4-1993.
(ii) That there is no mention of the blade with the tractor in recovery memo. Exh.P.E.
(iii) That the presence of eye-witnesses is not shown in the site plan. Exh.P.G. And there is no mention of the cycle lying at the spot.
(iv) That there is no evidence that the appellant was driving the tractor negligently.
(v) That according to the recovery memo. Exh.P.E. The tractor was produced by Muhammad Sarwar appellant whereas P.W.8 in his statement says that he arrested the appellant on 16-4-1993.
(vi) That the post-mortem examination was not conducted in this case and the cause of death has not been proved beyond doubt.
7. The learned State counsel, on the other hand, defended the impugned judgment and submitted that the doctor had opined that the death was on account of the injuries sustained during the road accident and that the prosecution case has been proved to the hilt.
8. The most important ingredient to establish a charge under section 320, P.P.C. 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 no where 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 traffic and the nature of the road in question.
9. It is unfortunate that no post-mortem examination was carried out in this case and the doctor (P.W.5) when cross-examined on this point came out with the explanation that "I did not conduct the post-mortem examination because the cause of death was evident from the external appearance of the body".
The reasoning advanced by the doctor is not tenable as the prosecution had to prove from the medical evidence that the resultant injury was the immediate cause of death. In a case reported in Abdul Latif v. The State 1972 PCr.LJ 1095 it was held:-- "Penal Code (XLV of 1860), S.304-A---Rash and negligent act-Death caused by---Post-mortem examination to find out exact cause of death not held---Prosecution failing to establish that death of deceased was direct result of injuries suffered by him on account of rash or negligent act of accused---Accused cannot be held guilty of an offence under S.304-A unless proved by medical evidence that resultant injuries were immediate, proximate and efficient cause, causa causans and not merely causa sine qua non of death, without intervention of any other negligence.
' This view was further affirmed in yet another judgment of the Karachi High Court which is reported in Muhammad Bakhsh v. The State 1976 PCr.LJ 405.
10. The quality of evidence on record suggests that the occurrence in question was unwitnessed.
For instance P.W.1 stated that the blade which was fitted behind the tractor hit Muhammad Arif deceased whereas P.W.2 says that the said blade was fixed in front of the tractor. Similarly P.W.1 and P.W.2 are inconsistent as to whether the appellant left the tractor at the spot or fled away with the same. P.W.1 who lodged the F.I.R. (Exh.P.A./1) wherein name of appellant was specifically mentioned, stated in Court that she was not aware of the name of the accused and that she was told by police about the name after the appellant's arrest. Interestingly, the appellant was arrested much after lodging of the F.I.R. i,e, On 16-4-1993 whereas the F.I.R. Was lodged on 3-4-1993. This further strengthens the impression that she did not witness the occurrence and it was subsequently that the police, after preliminary inquiries, named the appellant which was conveyed to the complainant and the F.I.R. Was lodged on that basis.
11. The site plan, which is Exh.P.G. Is a corroborative piece of evidence, does not in any way promote the prosecution case either. There are serious omissions which assume fatal dimensions in view of the already discrepant ocular account. There is no mention of the cycle lying at the spot; there is no mention of the place from where the witnesses saw the occurrence and there is no mention of the tractor standing at the spot which was allegedly taken into possession by the Investigating Officer.
12. For what has been discussed above, the prosecution has failed to establish charge against Muhammad Sarwar appellant. This appeal, is allowed, the impugned judgment, dated 6-10-1994 passed by the learned Additional Sessions Judge, Rahimyar Khan is set aside and the appellant is acquitted. He shall be released forthwith if not required in any other case.