' Driving Motor Cycle on normal speed and keeping to the left Shaukat Abbas deceased alongwith his brother Farhat' Abbas, complainant was going to Garh Morh from their house on metalled road and then they reached Chah Makran Wala near the garden of Muzaffar Ali Khan Sial, a tractor bearing No,2118 JGA being driven rashly and negligently and also at fast speed by appellant emerged from front side. It was swerving and in the process of such movement, side of tractor struck against motor-cycle and as a result of collision, Shaukat Abbas and Farhat Abbas fell down.
Farhat Abbas remained unscathed while Shaukat Abbas succumbed to the injuries at the spot.
2. Leaving dead body of Shaukat Abbas with witnesses, namely, Sikandar Abbas and Ghulam Abbas, who, in meantime reached there in a car and witnessed the occurrence, Farhat Abbas went to Police Station to report the matter. His statement Exh.PA upon which formal F.I.R. Exh.PA/1, was drawn, set the law into motion.
3. On submission of challan, appellant was charged under section 320, P.P.C. To which he pleaded not guilty and claimed to be tried.
4. To prove its case, all six witnesses, cited in the calender, were examined by the prosecution. As P.W.1, Farhat Abbas, first informant, reaffirmed contents of Exh.PA. P.W.2, Ghulam Abbas furnished ocular account of the incident, P.W.3, Safdar Ali, A.S.I. Enumerated various steps of investigation carried out in the case. P.W.4, Haq Nawaz Constable escorted the dead body while Dr. Ghulam Farreed P.W.5, furnished Medical Evidence, and P.W.6 Muhammad Younus Moharrir proved recording of F.I.R Exh.PA/1.
5. 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.
6 . After passing usual phases and covering its journey in almost 3/4 years, trial culminated with following observations and conclusions:- ' "The conduct of the accused is inhuman and he sped away the tractor from the spot without taking care for the deceased, who, fell down from the Motor-Cycle. The morality requires that in such situation measures should be taken even by the culprits to take care of the injured and to get him hospitalised without any loss of time. The accused's act of decamping from the spot is a speaking factor for his guilt. I, therefore, convict and sentence Muszaffar Ali accused under section 320, P.P.0 to undergo four years and six months R.I. And also to pay Diyat of an amount of Rs,1,70,610.
The amount of Diyat if realised, shall be paid to the legal heirs of the deceased, Shaukat All after due verification. In case of non-realization of Diyat, the detention shall continue till the same is recovered."
7. Aggrieved by these finding, the appellant has challenged as assailed his conviction and sentence awarded to him by Judicial Magistrate Section 30, Jhang vide judgment dated 10-10- 1995.
8. Learned counsel representing the appellant has referred to Muhammad Sarwar v. The State (1995 PCr:LJ 1152), Taus Khan v. The State and 2 others (1995 M LD 1775), and Muhammad Asif Khan v.
The State 1995 PCr.LJ 68 to contend, inter alia, that impugned conviction and sentence are neither warranted by data and material on record nor sustainable in law. He has lambasted the verdict 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. He has further maintained that the occurrence was not witnessed by P.W.2, whose testimony is not worth reliance; fact of no injury on the person of complainant renders the presence of complainant at the place of occurrence, to be doubtful, and in any event rash and negligent driving on the part of appellant is not established.
9. Conversely impugned judgment has been acclaimed to be correct in all respects by learned Counsel representing the State with the remarks that no malice, whatsoever, on the part of prosecution has been suggested or even hinted at.
10. Admittedly, the complainant did not suffer any scratch what to speak of injuries, while he was sitting on rear seat of moto-cycle. His presence at the spot is manifestly rendered to be doubtful.
Similarly, presence, of P.W.2, Ghulam Abbas, is pregnant with serious doubts in wake of various factors including arrangement of motor-cycle for proceeding to report the matter despite availability of car in which, witness, not alone, but with his companion happened to reach at the scene of incident miraculously. Anyhow same stands A discarded by even learned trial Court.
Quality of evidence adduced on record suggests a clear inference that the occurrence was witnessed one.
11. 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 adverted to, inquired into and the evidence on record, by a crude manner, shifted burden to the shoulder of the appellant. 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. I am fortified in this belief by following observations made in Muhammad Sarwar v. The State (1995 PCr.LJ 1152)
' "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 or 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 and 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."
12. As indicated above, conviction under section 320, P.P.C. Requires that some rash and negligent act on part of accused/appellant must be conclusively established. Learned trial Magistrate tilted on the side of the prosecution and seemingly remained oblivious of this aspect altogether.
13. For the above reasons, the case against the appellant could not be taken to have been proved beyond reasonable doubt. Appeal concomitantly is accepted, conviction and sentence are set aside and appellant is acquitted of the charge by extending benefit of doubts to him.
14. He is on bail and is accordingly absolved of all his liabilities to the bonds furnished by him.