MUHAMMAD YUNUS SURAKHVI, J.--- This appeal has been preferred against an order passed by the Shariat Court of Azad Jammu and Kashmir on 16th November, 1996, whereby Zafar Iqbal respondent herein was acquitted of the offences under section 8/9 of Islamic Penal Laws Enforcement Act, 1974 (hereinafter to be referred as I.P.L.) and section 279, A.P.C.
2. The relevant facts, forming the background of the present appeal, briefly stated, are that a case under section 8/9, I.P.L. Was registered against the respondent at Police Station Mirpur. The prosecution case as disclosed in the F.I.R. Is that on 19th March, 1992, Zafar Iqbal, accused- respondent, was accompanied by Tazweez Hussain, complainant in a pick-up No.AJK-E-44 which was coming from Dadyal to Mirpur. The vehicle was driven by Zafar lqbal, respondent, and.Both complainant and one Ibrar Hussain were sitting on the front seat, whereas Muhammad Ameen and. Muhammad Taj were sitting on the backside in the body of vehicle. At about 10-30 p.m. When the pick-up reached near Khaliqabad Cross, on account of rain it slipped and turned down. The vehicle fell into a drain on the left side of the road. As a result of accident Muhammad Ameen sustained injuries on the jaw, head and other parts of his body; however, the other persons miraculously escaped. On his way to. Hospital, Muhammad Ameen succumbed to the injuries.
3. After the registration of case, the police conducted the investigation and ultimately presented a challan against the accused-respondent for facing the trial under section 8/9 I.P.L. While concluding the trial, the trial Court found the respondent guilty of the offences under section 8/9, I.P.L. And awarded him the sentence of Diyyat in the sum of Rs.2,32,280 to be paid by the Aaqla of the accused-respondent to the heirs of the deceased and further awarded the sentence of one year rigorous imprisonment alongwith fine of Rs.1,000 under section 279, A.P.C.
Feeling aggrieved with his conviction order, the respondent preferred an appeal before the Shariat Court of Azad Jammu and Kashmir which was accepted and he was acquitted of the aforesaid offences. Hence this acquittal appeal by the complainant-appellant.
4. Ch. Muhammad Anwar, the learned counsel for the complainant-appellant, submitted with vehemence that a learned Judge in the Shariat Court without any valid and cogent reason acquitted the accused-respondent who was guilty of committing the offence of Qatal-e-Khata and was clearly connected with the commission of the aforesaid offences on the basis of direct and confidence inspiring evidence of eye-witnesses namely Tazwaiz Hussain and Muhammad Taj.
It was strenuously argued by the learned counsel for the appellant that Tazwaiz Hussain, complainant was sitting alongwith the accused-respondent on the front seat of the vehicle whereas Muhammad Taj the other eye-witness, was sitting on the backside of the pick-up, thus, their direct evidence was sufficient for connecting the accused-respondent with the commission of the offences alleged. The learned counsel pointed out that Mehboob Alam, M.M.P.L., clearly deposed in his evidence that the occurrence took place due to negligence and rash driving of the vehicle by the accused-respondent as a result of which Muhammad Ameen lost his life after sustaining injuries. The learned counsel contended that the trial Court after appraisal of evidence on the record found the accused-respondent guilty of the aforesaid offences and convicted him of the charges levelled against him. The Shariat Court was not legally justified to set aside the conviction merely on the basis of conjectures and surmises.
5. Controverting the arguments raised by the learned counsel for the appellant. Ch. Muhammad Riaz Alam, the learned counsel for accused-respondent, argued that the prosecution miserably failed to prove its case against the accused-respondent and under no circumstances the offences alleged against the accused-respondent were proved. The learned counsel submitted that the deceased and the eye-witnesses, as is deducible from the record, accompanied each other from Dadyal to Mirpur and on account of heavy rain the pick-up on the fateful day of occurrence slipped and the accident took place just by a chance as a result of which Muhammad Ameen died. The learned counsel fully defended the impugned order passed by the Shariat Court and maintained that the trial PCr Ll Court misdirected itself in recording the conviction of accused-respondent. The judgment, thus, passed by the District Criminal Court was rightly set aside by the Shariat Court.
6. The prosecution in order to prove its case examined Tazweez Hussain and Muhammad Taj as eye-witnesses of the occurrence. Arshad Mehmood and Abdul Qayyum, Head Constables, appeared as recovery witnesses of Registration Book. Insurance Book and other documents pertaining to the vehicle. Mehboob Alam, Inspector M.M.P.I., on reaching the spot prepared the site plan. Raja Muhammad Naseem Khan, D.S.P., partly conducted the investigation and then it was handed over to Ibrar Haider. Sub-Inspector, who conducted the full investigation and recorded the statements of witnesses under section 161, Cr.P.C. This is the sum total of the evidence which was produced by the prosecution in support of its case. Ibrar Hussain, an eye-witness, was not produced by the prosecution and his evidence was ultimately closed by the trial Court. In his statement under section 342, Cr.P.C. The accused-respondent denied the allegation. Similarly in his statement under section 342, Cr.P.C. The alleged incriminating pieces of evidence were also denied by the accused-respondent. The accused-respondent did not produce any evidence in his defence.
7. The moot point to be resolved in the present case is as to whether in the facts and circumstances of the case as disclosed in the first information report and the statements of eye-witnesses recorded during the trial an offence under section 8/9, I.P.L., is made out or not.
The prosecution story as plainly stated is that deceased Muhammad Ameen accompanied Zafar Iqbal, accused-respondent, in his pick-up from Dadyal to Mirpur and was seated in the vehicle on its backside alongwith Muhammad Taj P.W. Accused-respondent Zafar lqbal was driving the vehicle. The moment the said vehicle reached Khaliqabad Cross due to rain it slipped and fell down as a result of which Muhammad Ameen, deceased, sustained injuries and later on died on his way to hospital. In the light of the story putforth by the prosecution it is to be seen as to whether the relevant ingredients of offences under section 8/9, I.P.L. Are made out or not.
8. To have a correct perception of the matter it is deemed expedient to reproduce sections 8 and 9, I.P.L. Sections 8 and 9 read as under:--{{URDU TEXT}} Keeping in view the definition of Qatal-e-IChata made in the Statute itself we will have to revert to some illustrations of Qatal-e-Khata as made by prominent Islamic Scholars in the Islamic Treaties.
In Dur-ul-Mukhtar translated by Maulvi Khurram Ali, Volume 4 at page 315 the relevant illustration is reproduced below:--{{URDU TEXT}} In Ain-ul-Hidayah Volume 4 translated by Allama Maulana Syed Ameer Ali (Late) the following observation appears at pages 552 and 553{{URDU TEXT}} In Fatawa-e-Alamgiri Volume 9, translated by Allama Maulana Syed Ameer Ali, at page 294 the following illustration may conveniently be reproduced:-{{URDU TEXT}}
9. The abovestated illustrations make it abundantly clear that in order to constitute an offence under section 8/9, I.P.L. There should be either mistake in the intention or in the act done by the accused. Both these elements which are necessary ingredients for constituting the offence under section 8/9, I.P.L. Are totally missing and lacking in the prosecution story. It is nowhere on record that the accused intended to kill someone but in fact the deceased was killed or there was an act on the part of the accused to hit some other thing but he missed the target and it hit the deceased. Thus, in our view the necessary ingredients for constituting an offence under sections 8 and 9, I.P.L. Were neither made out nor proved by the prosecution as such the accused- respondent could not have been convicted under section 8/9 of the I.P.L.
10. The Shariat Court, though acquitted the respondent under sections 8 and 9 of I.P.L. On the ground that the prosecution could not prove any negligence or rash driving on the part of the accused-respondent but in our view these are not the relevant considerations to be looked into while convicting or acquitting an accused person under section 8/9, I.P.L. However, we maintain the order of acquittal recorded by the Shariat Court, though on altogether different grounds mentioned in the earlier part of this judgment.
11. The trial Court convicted the accused under section 279, A.P.C. And awarded him the sentence of one year rigorous imprisonment and a fine of Rs.1,000 but the Shariat Court acquitted him even under the said offence on the ground that neither the police challaned the accused-respondent under section 279, A.P.C. Nor the prosecution could prove the rash or negligent driving on the part of the accused-respondent. It may be stated that if a case is challaned under an offence providing severer punishment the Court is competent to convict an accused person in an offence providing the lesser penalty if the same is proved but it may be stated that the prosecution failed to prove the offence under section 279, A..P.C. Against the accused-respondent as well. Tazweez Hussain complainant, the eye-witness, has stated in his evidence that he did not know as to whether the vehicle was being driven rashly or not but in the second breath he stated that it could be said to be somewhat rash but the fact remains that he stated categorically that the vehicle fell down on account of rain and slipped. The eye-witnesses, Muhammad Taj categorically stated that he did not know as to whether the accident took place on account of rash driving or for some other reason. Thus, in our view the case even under section 279, A.P.C. Has not been established by the prosecution.
12. For the foregoing reasons, finding no force in tlfis appeal, it is hereby dismissed.