' This is an appeal against conviction. It calls in question the judgment dated 21-1-1996 of the learned Additional Sessions Judge, Kohat whereby the appellant, Aziz Khan an Afghan Truck driver aged about 46 years, having been found guilty of committing Qatl-i-Khata by rash and negligent driving was convicted under section 320, P.P.C. And sentenced to six years' R.I. In addition to Diyat amounting to Rs,1,80,000.
2. The victim of the gory accident that had occurred on 12-12-1993 at about 11-45 a.m. Near Railway Crossing on Kohat-Bannu Road was a college student named Syed Muhammad Sajidain. The appellant after hitting the deceased had made an attempt to vanish but his attempt was foiled by two companions of the deceased who had chased him in an Auto-Rickshaw and pointed him out to a policeman on duty near Shah Faisal Gate who had apprehended him and taken him along with the Truck to the P.P. Political Serai. The F.I.R. Was lodged in the Emergency Room of the L.M.H., Kohat by Professor Syed Jaffar Taqi, a relative of the deceased.
3. The brief facts of the case, as disclosed at the trial, are that on the fateful day the deceased along with the class-fellows Syed Ali Naqi and Ahmad Abbas had left the College for P.A.F. Base to see a friend. When at about 11-15 a.m. They reached the Railway Crossing a Truck came from Ban= side at high speed and hit the deceased. The driver instead of bringing the Truck to a halt tried to speed away but the companions of the deceased chased him in an Auto-Rickshaw and on reaching Shah Faisal Gate informed the policeman on duty there who apprehended him and took him to the P.P. Political Serai along with the truck.
4. At the trial, the prosecution examined seven witnesses in support of its case of whom while Qaisar Ali, A.S.I. (P.W.6) highlighted the details of the investigation conducted by him and Syed Ali Naqi (P.W.3) furnished ocular evidence the remaining witnesses gave evidence of formal nature. It will be pertinent to point out that there is no medical evidence in this case as the dead body of the deceased was exempted from post-mortem examination by. The S. D .M . , Kohat.
5. The appellant had pleaded denial simpliciter in his statement under section 342, Cr.P.C.
6. The prosecution case who assailed by the learned counsel for the appellant on the following grounds:--
(i) Syed Ali Naqi was not a natural witness because had he been in the company of the deceased he would have lodged the F.I.R. Besides, his name was not mentioned in the F.I.R.
(ii) The cause of death of the deceased was not known for want of medical evidence.
(iii) It was evident from the statement of the Motor Vehicles Examiner, Muhammad Ilyas (P.W.1) that neither any part of the truck was damaged or broken nor it had any mechanical defect.
(iv) To run a vehicle at a high speed was not an offence in itself and the prosecution had failed to prove that death of the deceased was caused by a rash and negligent act on the part of the accused. Reliance was placed on Terence Anthony D'Casta v. The State 1969 PCr.LJ 1228, Muhammad Bakhsh v. The State 1976 PCr.LJ 405 and Muhammad Akhtar v. The State 1980 PCr.LJ 103.
7. The learned counsel for the complainant and the learned counsel appearing for the State, on the other hand, maintained that the appellant was guilty of rash and negligent driving as at the crucial time he was driving the Truck at a high speed in a thickly populated area and had not reduced the speed even at the Railway Crossing where the deceased was knocked down. Reliance was placed on Muhammad Afzal v. The State 1975 PCr.LJ 1353. They further argued that Syed Ali Naqi being 'the class-fellow of the deceased was a natural witness and his name did not figure in the F.I.R. As it was not lodged by an eyewitness. It was also argued that there was sufficient evidence available on record to establish the offence committed by the appellant, therefore, mere absence of post- mortem examination was not enough to nullify the prosecution case. A judgment of this Court reported as Rahimullah v. The State (1985 PCr.L.I 463) was cited in support of the contention.
8. The ocular account of the occurrence furnished by Syed Ali Naqi inspires confidence as he is an independent and disinterested witness having no motive to make a false statement against the appellant. He is also a natural and probable witness inasmuch as he was not only a class-fellow of the deceased but was also instrumental in the apprehension of the appellant shortly after the occurrence. The mere fact that he had not lodged the F.I.R. Is not sufficient to tarnish his credibility because after the accident he had set out after the appellant and in the meantime the deceased was shifted to the hospital where the report was made by his cousin. In any case it is a matter of common knowledge that in such-like cases filing of the FIR by an available relative of the deceased is a preferred option. No doubt his name is not mentioned in the F.I.R. But this omission cannot be blown out of proportion for the simple reason that the F.I.R. Was not lodged by an eye- witness. There is nothing in his cross-examination to make his credentials doubtful. As a matter of fact the trend of his cross-examination and a few suggestions made by the defence go a long way to connect the appellant with the crime. Some of the suggestions are worded thus:-- "It is incorrect to suggest that the deceased was riding on the 'Patta' of the Truck at the time of accident.
' It is incorrect to suggest that the deceased was hit by the tyre of the truck from the back side but in fact he was hit with the left front side of the truck".
9. It is true that the dead body of the deceased was not subjected to autopsy but this omission cannot destroy the prosecution case as the factum of accident and plight of the deceased stand established beyond any reasonable doubt in view of the ocular evidence, injury sheet of the deceased Exh.P.W.6/1 and the Inquest Report Exh. P.W.6/2. It was observed in the aforementioned authority, 1985, PCLIJ 463, cited by the learned counsel for the complaint that mere absence of post-mortem examination would not be fatal to prosecution case if otherwise sufficient evidence is available on record to establish offence.
10. As regards the legal aspect of the case there can be no cavil with the proposition that it is not the high speed of a vehicle but a rash and negligent act on the part of the driver which constitutes an offence. The appellant was indubitably rash and negligent because he was driving the truck at a high speed in a crowded locality and had not reduced the speed even at the Railway Crossing where he was obliged to do so. Besides, the absence of skid marks from the site plan make it manifest that he had not applied the brakes. It is scarcely necessary to mention that it is in the statement of Muhammad Ilyas M.V.E. (P.W.3) that the brakes of the Truck were in working order.
As a result of the above discussion, the conviction and sentence of the appellant are maintained and this appeal is dismissed.