' Tariq Masih was arraigned for trial in the said case before Ch. Irghad Ahmed Bosal, Judicial Magistrate Section 30, Lahore Cantt. Through judgment dated 4-1-1995 the appellant was convicted under section 320, P.P.C. And sentenced to seven years' R.I. It was also directed that he will pay a penalty of Rs,25,000 as a portion of Diyat as the accused is a very poor man and if the amount of Diyat is recbvered it is to be paid to the legal heirs of the deceased.
2. Feeling aggrieved the appellant has challenged his conviction and sentence vide this appeal.
3. The occurrence took place on 16-10-1991. At 10-00 a.m. Near Tonga Stand Ganda Nala in the area of Police Station North Cantt. At a distance of 1/4 k.m. From the place of occurrence. The statement of Abdul Sattar P.W.1 Exh.P.A. Was recorded by Muhammad Aglam, A.S.-I. (P.W.4) at 10-30 a.m. And it was sent to the police station where formal F.I.R. Exh.P.A./1 was recorded by Ahmed Din, S.-I. (not produced) at 10-40 a.m.
4. Briefly the facts of the case are that on 16-10-1991 at 10-00 a.m. Abdul Sattar complainant (P.W.1) alongwith Asif Javed Butt (P.W.2) and Tariq Khurshid Butt (P.W.3) were present near Tonga Stand Ganda Nala when a Tractor No,JM/4183 pulling a trolly loaded with the container came from the side of Octroi Post Mughalpura which was being driven in a very rash and negligent manner. A bus tried to overtake the tractor trolly but the tractor driver drove the tractor more rashly as a result of which a pedestrian Haqiqat Ali Khan was crushed under the wheels of the tractor and died at the spot.
Leaving the tractor trolly at the spot the tractor driver succeeded in making good his escape'.
5. The police prepared inquest report Exh.P.D. And despatched the dead body for medical examination. The tractor trolly loaded with the container was taken into possession vide memo.
Exh.P.B, which is signed by Tariq Khurshid (P.W.3), Asif Javed (P.W.2) and Muhammad Aslam, A.S.-I.
(P.W.4). The accused was arrested on 20-10-1991 by Fiaz-ul-Hassan, S.-1. (P.W.5) and after completion of the investigation he was challaned.
6.Out of the 12 witnesses mentioned in the calendar of witnesses prosecution opted to produce five witnesses only and closed the case of the prosecution. The accused was examined under section 342, Cr.P.0 wherein he denied the prosecution case and stated that two months before the present occurrence he had given up the job as tractor driver as he had developed some differences with the owner of the tractor regarding his pay and that on the day of occurrence he was not driving the tractor and that the complainant had falsely involved him in connivance with the owner of the tractor. In proof of his defence he examined Ijaz Hussain as D.W.1 who .Stated that Tariq Masih appellant was in his employment since 20-8-1991 and that since 15-10-1991 he alongwith Tariq Masih driver were in their village at Shakargarh and that the ippellant was driving his Toyota car.
7. Disbelieving the defence evidence the triarl Court proceeded to convict and sentence the appellant.
8. The learned counsel for the appellant has taken me through the entire evidence recorded at the time of trial and the record of the case has also been perused and scrutinised. The learned Law Officer was called to assist the Court specially as the learned State Counsel had come unprepared and without his brief.
9. It has been strenuously argued by the learned counsel for the appellant that admittedly the P.Ws. And the accused were not known to each other prior to the occurrence and that the accused was not apprehended at the spot and that there is no evidence to connect the accused with the present occurrence. Although all the witnesses have supported the prosecution case but still it is to be seen as to how the accused has been wedded with the crime and that the D.W. Has been examined who has proved that the accused was not driving the tractor trolly on the fateful day.
The learned Assistant Advocate-General was asked to rebut and show as to how the accused has been saddled with the responsibility of the present occurrence.
10. For my satisfaction I have re-examined the entire record from this angle and 1 find that the accused was admittedly not ,arrested at the spot and the Investigating Officer did not hold a test identification parade to connect the accused with the crime nor I find that the owner of the tractor trolly was examined under section 161, Cr.P.C. Or cited as P.W. In the case who could ' have disclosed that whether the appellant or somebody else was driving the tractor on that day and who was the person in his employment. It is because of this lacuna in the investigation that the accused/appellant has taken advantage and has made a statement that he had left the employment as tractor trolly driver two months before the occurrence and further that on the fateful day he was driving a Toyota Car and was in Shakargarh with Ijaz Hussain D.W.1. The learned Law Officer has pointed out that Irshad Ahmad the owner of the tractor trolly was examined in course of investigation on 17-10-1991 but his statement under section 161, Cr.P.C. Was not recorded nor he was cited as. P.W. It is surprising that this case was also investigated by an officer of the rank of S.P. And still it never occurred to anybody as to how they were actually going to prove beyond doubt that the accused/appellant was the person responsible for this accident.
11. I have no reasons to disbelieve the statement made by the accused under section 342, Cr.P.C.
And also the statement of Ijaz Hussain D.W.1 on oath. Had the prosecution caught the accused at the spot or had the police got held a test identification parade arranged or at least the owner of the tractor trolly driver had been examined in Court then it would have been a different matter and the statement of the eye-witnesses would have been enough to prove culpability of the appellant but in view of the fact that there is no cogent evidence to connect positively that the accused/appellant is responsible, it is difficult to believe the ocular evidence. This reflects on the competence of the Investigating Agency and it is neither the fault of the complainant party nor the witnesses. It was the duty of the Investigating Officer to have foreseen and left no gap in his investigation for the accused to take advantage. The learned Law Officer has also in spite of hest efforts not been able to bridge this lacuna which is hitting the rootof the case.
12. For all that has been stated and discussed above, the appellant is entitled to the benefit of doubt and, thus, his appeal is accepted. The impugned judgment is set aside and he is acquitted of the charge. He is on bail and his bail bonds stand discharged.