' Driving Motor Cycle No,4233/SGD on normal speed and keeping to the left Iftikhar Ahmad, alongwith his mother Sakina Bibi and sister Mst. Kausar Parveen, on rear seat, was going to City at about 8-00 p.m. On 30-5-1988. When they reached in front of Cement Agency. Ahead of Madina Hotel, a Suzuki No,2423/RIM, emerged. While passing a truck by wrong side, and being driven by Mushtaq alias Nikku, allegedly in rash and negligent ' manner, it lost balance and control and collided head on against Motor-bike. Iftikhar Ahmad, Mst. Sakina Bibi and Mst. Kausar Parveen received injuries by such accident.
2. Tahir Mahmood and Hafiz Ahsan Raza, following incidentally, shifted the injured to Civil Hospital, where, unfortunate, Iftikhar Ahmad succumbed to his injuries while ladies were given medical aid and examined by Dr. Shahid Manzoor (P.W.6).
3. Matter was reported to police by Muhammad Ashraf, brother of deceased, and a case under section 279/337/304, P.P.C. Was registered at Police Station Sadar Sargodha vide F.I.R. No,275, dated 30-5-1988.
4. On submission of challan, appellant was charge-sheeted under section 304, P.P.C. He pleaded not guilty to it and claimed to be tried.
5. To prove its case, all nine witnesses, cited in the calender, were examined by the prosecution P.W.1 Muhammad Ashraf, first informant, deposed in terms of Exh.P.A. P.W.2 Hafiz Ahsan Raza and P.W.3 Tahir Mahmood furnished ocular account of incident, P.W.4 Mst. Sakina Bibi and P.W.5 Mst.
Kausar Parveen provided details of the accident due to which they, too, had suffered injuries, P.W.6 Dr. Shahid Manzoor proved post-mortem report Exh.P.B. And medico-legal reports, which find a mentioned on file as Exh.P.C. And Exh.P.D., P.W.7 Sabir Hussain Sub-Inspector had recorded and drawn formal F.I.R. Exh.P.A./1 on receipt of Exh.P.A., and which, of course, set the law into motion, P.W.8 Iftikhar Hussain A.S.-I. And P.W.9 Muhammad Nawaz enumerated various steps of investigation.
6. In his statement under section 342, Cr.P.C. Appellant, denied all the incriminating circumstances figuring against him in prosecution evidence, professed innocence and alleged false implication due to enmity. He produced Zafar Iqbal D.W .1 in his defence.
7. After passing usual phases and covering its journey in almost five years, trial culminated with following observations and conclusions:-- "In view of the evidence on record and the above discussion, I am fully convinced that the prosecution has proved its case against the accused, I, therefore, hold accused Mushtaq alias Nikku guilty under sections 279, 337 and 304, P.P.C. And convict him accordingly. He is sentenced under section 279, P.P.C. To undergo R.I. For six months and also to pay a fine of Rs,1,000, in default of which he shall undergo S.I. For two months. He is also sentenced under section 337, P.P.C. To undergo R.I. For two years and a fine of Rs,500 in default of which he shall undergo Si. For one month. He is also sentenced under section 304, P.P.C. To undergo R.I. For five years and also to pay a fine of Rs,20,000. In default of payment of fine the accused shall undergo S.I. For 1-1/2 years. The sentences in all the offences shall run concurrently. The accused shall also get benefit under section 382-B, Cr.P.C. The case property wagon and motor-cycle shall stand discharged from Spurdarinamas in favour of the owners after the period of appeal/revision, if any."
8. Aggrieved by these findings, the appellant has challenged and assailed his conviction and sentence by judgment, dated 9-2-1993 in shape of instant appeal.
9. Learned counsel for the appellant has referred to sections, 3, 75, 89, 89-A, 95, 97 to 99 of Motor Vehicle Ordinance, 1965 Javed Jan v. The State PLD 1982 Lahore 171, Badshahzada v. The State 1993 PCr.LJ 699 Pesh. Muhammad Rafiq v. The State 1988 MLD 2325 Lah., Muhammad Suleman v. The State 1983 PCr.LJ 1095 Lahore, Muhammad Baldish v. The State 1976 PCr.LJ 405 Karachi, Haris Khan v.
The State PLD 1993 Pesh. 146, Ragho Prasad v. Emperor AIR 1939 Pat. 388, Muhammad Akhtar v. The State 1980 PCr.LJ 103 Karachi, Muhammad Haroon v. The State 1984 PCr.LJ 1470 Karachi, Abdullah v.
The State 1968 PCr.LJ 1416 Karachi, Noor Khan v. The State 1974 PCr.LJ 56 Lahore, Muhammad Yakub Rathore v. The State 1968 PCr.LJ 1438 Karachi, Muhammad Saddaq v. The State 1985 PCr.LJ 2794 Karachi to contend, inter alia, that impugned conviction and sentence are neither warranted by data and material on record for sustainable in law. He has lambasted verdict, dated 9-2-1993, delivered by Muhammad Zahir Khan, Magistrate Section 30, Sargodha, by pointing out that the same is rife and replete with legal and technical snags, which, unfortunately, escaped the notice of learned trial Court and conversely the prosecution was allowed to reap benefit thereof. It has, therefore, been canvassed that impugned conviction and sentence are not only laconic and perfunctory, but also, unwarranted.
10. To acclaim the same, to be correct and perfect, in all respects, learned counsel representing the State has placed reliance upon Abdul Qadir v. The State 1981 SCMR 820 and Iqbal Umer v.
Muhammad Azizullah Qureshi and 2 others PLD 1976 Kar.
560.
11. Admittedly, the complainant was not present at the time of occurrence. P.W.2 deposed that at relevant time Suzuki Pick-up 2423/RIM was being driven at high speed, and it struck against the motor-bike of Iftikhar Ahmad deceased. P.W.3 added that pick-up crossed the truck by wrong side.
P.W.4 and P.W.5, the injured ladies stated that pick-up was being driven negligently and rashly by the appellant. However, P.W.2, P.W.4 and P.W.5 remained silent about overtaking the truck going ahead by its wrong side. Seemingly, P.W.2 and P.W.3 are chance witnesses. Hence their testimony does not ring true and is not worth implicite reliance. P.W.3 has admitted that in case of three riders, the motor-bike cannot maintain its balance. It was nowhere brought on record or indicated on Exh.P.E. That the deceased was wearing a helmet at the time of incident. According to section 89 of Motor Vehicle Ordinance, 1965, no driver of a two-wheeled motor-cycle is allowed to carry more than one person in addition to him. It is further laid down in section 89-A that a driver of a motor- bike is not permitted to drive unless he wears a crash helmet. In other words, Iftikhar Ahmad deceased was violating the prescribed rules of driving. At the same time, there was every likelihood of loosing the balance in the event of three riders on the motor-cycle. Learned trial Magistrate lost sight of carelessness of the deceased which could contribute to the accident.
12. It is trite and settled law that driving a vehicle at high speed cannot be considered and taken to be rash and negligent act. Modern technology provides for reasonable safeguard of stopping vehicle within no distance and time. For rash and negligent driving, the prosecution is to establish that the driver failed to take proper care by omitting to take some action through which he could have avoided accident. In the instant case, this aspect of the matter does not seem to have been inquired into and the evidence on record, by a crude manner, shifted entire burden to the shoulders of appellant. Rough site plan Exh.P.E. And inquest report, too, do not indicate the place where the truck was being overtaken. This lapse coupled with silence of injured P.Ws. Leads to safe inference that no negligent act was being committed by the appellant, at the time of occurrence, nor he was driving on the wrong side. Moreover, Suzuki Pick-up was not examined by Investigating Officer or got examined by Motor Vehicle Inspector to prove any mechanical defect. Hence, entire blame of rash and negligent driving could not be laid at the door of the appellant alone. His innocence is otherwise spelt out from the prosecution evidence.
13. Conviction under section 304-A, P.P.C. Requires that some rash and negligent act on part of the accused must be conclusively established. Learned trial Magistrate tilted on the side of the prosecution and remained oblivious of major contribution by deceased. Also he has displayed total ignorance to the fact that the appellant was never charged with the offence under sections 279 and 337, P.P.C.
14. For the above reasons, the case against the appellant could not be taken to have been proved beyond reasonable doubt. Giving him benefit of doubt, the appeal is accepted, conviction and sentence are set aside and he is acquitted of the offence with which he was charged with.
15. He is on bail and is accordingly absolved of all his liabilities to the bonds submitted by him.