' Brief facts relevant for the disposal of this appeal are that on 26-6-1993 at about 7-30 a.m. Mst.
Safia wife of Riaz Ahmad appellant/complainant was carrying meals for the appellant in the fields when Khalid son of Bashir Ahmad respondent who was driving tractor No,8675/SLB rashly and negligently hit her who fell down and the wheel of the tractor ran over her. The respondent accused Khalid fled away from the 'place of incident. Mst. Safia subsequently, succumbed to the injuries received during the said accident. A case F.I.R. 471 of 1993 was registered on the statement of Riaz Ahmad appellant with Police Station Jaranwala under section 320, P.P.C.
2. The respondent Khalid was sent up to face trial in the Court of Ch. Muhammad Wakeel, Magistrate Section 30, Faisalabad who vide his judgment, dated 29-1-1996 convicted the accused/respondent under section 320, P.P.C. Awarding one year's R.I. And also to pay Rs,1,25,000 as Diyat to the legal heirs of the deceased. That order was challenged by Khalid convict/respondent through appeal, whereas Riaz Ahmad the present appellant filed a criminal revision seeking enhancement of the sentence. Appellant's revision was dismissed but the appeal filed by the respondent was accepted and his conviction was set aside by Ch. Muhammad Hussain Maikan, learned Additional Sessions Judge Faisalabad vide his judgment, dated 6-11-1996.
3. Aggrieved by the order of acquittal the instant appeal under section 417(2-A), Cr.P.C. Has been preferred. A notice was issued to the respondent. In response thereof, he has appeared alongwith his counsel. Arguments were addressed by both the parties in support of various contentions raised by them.
4. The prosecution in order to prove the case against the respondent examined seven witnesses.
Bashir Ahmed P.W.1 and Muhammad Sadiq P.W.2 furnished the ocular account of the occurrence.
Both of them saw that Tractor in question was driven by respondent Khalid rashly and due to his negligence Mst. Safia was hit who thereafter fled away from the place of occurrence. The tractor in question was taken into possession in their presence. Riaz Ahmad complainant was examined as C. W.1 who is husband of Mst. Safia. He reiterated the prosecution version as already given by the two witnesses and as such supported the prosecution version. The eyewitnesses were at a distance of about 40 feet from the place of occurrence whereas the complainant witnessed the occurrence from a distance of twenty feet. P.W.3 Muhammad Hanif was a formal witness who identified the dead body of Mst. Safia at the time of her post-mortem examination. Similarly, Ghulam Hussain P.W.4 is also a formal witness. P.W.5 Muhammad Rafiq is Foreman in Cooperative Farm Service Centre, Jaranwala who after examining the Tractor in question i,e, No,8676/SLB Ford- 3600 with which Mst. Safia was hit, submitted his report Exh.P.A. And found that the steering was free and brake was loose.
5. Investigation was conducted by Zafar Iqbal A.S.-I. P.W.6 who took into possession Tractor alongwith Trolly No,8676/SLB vide memo. Exh.P.D. And also arrested the respondent. After recording the statements of the P.Ws. He performed other usual formalities. He found the accused guilty and sent him up to face trial in the Court of learned Ilaqa Magistrate.
6. Dr. Muhammad Akram examined Mst. Safia and noted the following injuries on her person:--
(1) An abrasion on whole of the abdomen so that the superficial skin had peeled off.
(2) A lacerated wound 6 x 3 c.m. Muscle deep on the left front of thigh upper part.
(3) A lacerated wound 4 x 2.5 c.m. Muscle deep on the front of left thigh 1.5 c.m. Above the injury No,2.
(4) A lacerated wound 1 x 5 c.m. On the bridge of nose, the bone underneath was fractured.
' The deceased was reported to have been run over by a tractor and noted that abdomen had been compressed which led to the death of Mst. Safia and the injury was sufficient to cause death in ordinary course of nature.
7. After close of the prosecution case the statement of respondent accused was recorded on 10-12- 1995. He pleaded not guilty and stated that he was involved on account of party faction and enmity. He, however, did not choose to appear as his own witness as envisaged under section 340(2), Cr.P.C. Nor he produced any evidence in support of his defence.
8. As observed above, the learned trial Magistrate after assessing the aforesaid evidence found that the father of the accused-respondent was owner of the tractor and same stood registered in his name. While refuting this aspect of the case the respondent pleaded that a false registration has been obtained in the name of his father in order to implicate him in the case. After appraising the prosecution evidence he found the case stood proved against the respondent and accordingly he convicted the appellant under section 320, P.P.C. And sentenced him as noted above.
9. On appeal filed by the respondent, the learned Additional Sessions Judge set aside the conviction by observing that both the eye-witnesses were chance witnesses; that there was contradiction in between the version given by the complainant in the F.I.R. And the statement made in Court; that although the complainant as well as witnesses stated that accused was driving the tractor rashly and negligently but no detail has been furnished and that the witnesses appear to be tutored, as such, should not have been relied upon. The main ground assigned for acceptance of the appeal was that statements of P.W.1, P.W.2, P.W.3 and C.W.1 had not been written in the hand of the Magistrate although same had been attested by him by affixing his signatures, as such provision of section 355, Cr.P.C. Has been violated, therefore, the sentence recorded on the strength of this evidence could not sustain, the same was accordingly set aside.
10. I have carefully gone through the prosecution evidence comprising of the aforesaid witnesses, the Court-witnesses and other relevant material with the assistance of the learned counsel for the parties. In order to appreciate the evidence and to assess the case of both the parties certain admitted facts have to be kept in mind e.g. It is a fact that Mst. Safia was hit by a tractor, she received injuries and thereafter, she died on account of the receipt of the injuries. According to the doctor the death occurred due to compression of the abdomen which was sufficient to cause death in ordinary course of nature. These facts have not been disputed by the defence. The dispute has been raised firstly that the number of the tractor has been recorded erroneously in the F.I.R. It is submitted that actual number of the Tractor is 8676/SLB whereas in the complaint it is written 8675, therefore, according to the learned counsel it has not been proved by the prosecution that the tractor in question was in fact the tractor by which the deceased was run over. In support of his contention he has referred to the entry in the recovery memo. Wherein figure (5) has been changed into figure (6). The remaining figures i,e, SLB and (867) are the same. The learned counsel in fact has tried to make a big capital of an insignificant inadvertence. It appears that while recording the number of the tractor as 8676, number 8675 was written. The mistake was subsequently, corrected and the correct number of the tractor has been given. The other letters and figures i,e, SLB etc. Are exactly the same. Some time figure (6) if not written legibly may look like figure (5) and an error as such crept in. The argument on the basis of it appears to be frivolous in the absence of any supporting circumstance. The tractor stands registered in the name of father of the respondent which has not been denied. The tractor was taken into possession there from the spot in presence of the witnesses. There remains no doubt that the tractor which hit Mst. Safia was the same which had been recovered by the police and was driven at the time of incident by respondent.
11. The learned Additional Sessions Judge while appraising the evidence of the witnesses and the complainant discredited their testimony on the ground that the complainant as per his version in the complaint stated that his wife was carrying meals for him to be provided to him in the fields whereas, in Court he stated that he was going on a donkey cart. If the complainant was going on a donkey cart then there was no occasion for his wife to carry his meals. The reason is totally baseless. The fact remains that Mst. Safia was hit by the tractor. The place of occurrence is not denied and the manner with e which she was hit is also not disputed. The fact that she was carrying meals for her husband appears to be quite probable because the alleged occurrence took place in the morning of month of June and at that time meals are provided to the male members who are working in the fields. Similarly, as regards presence of the witnesses i,e, Bashir Ahmad and Muhammad Sadiq, the same has been found to be doubtful as according to the learned Additional Sessions Judge there was discrepancy in the reasons stated by them for their presence. The discrepancy which weighed with him is extremely trivial. The fact remains that both of the witnesses belong to the locality and their presence at the place of occurrence cannot be treated as improbable. Not only the witnesses saw the occurrence, they have also attested the recovery of the tractor, meaning thereby that they were present at the place of occurrence when the police came to the spot and tractor was taken into possession. It will be absolutely unfair and unjust to discard their testimony on this score. They have made statements on oath and neither of the witness is inimically opposed towards the respondent nor they have any motive to falsely implicate him in this case.
12. As regards the fact that details of rashness and negligence have not been furnished, the learned Additional Sessions Judge has erred in omitting the statement of P.W.4. He is an expert and according to him the steering was free and the brake was loose. Had the steering and brake been in proper order the accident could have been avoided. To determine whether there was rashness or negligence the attending circumstances have to be looked into. Unfortunately, the victim was going by the side of the road. Had the respondent been careful or vigilant he could have easily averted the accident but he hit the deceased who died as a result of injuries received by her. On factual plane the prosecution has successfully proved the case against the respondent, and there remains no doubt that the tractor was driven at the time of occurrence by the respondent and he hit Mst. Safia on account of his negligence and rashness.
13. On legal plane the learned Additional Sessions Judge has pointed out an irregularity committed by the learned Magistrate that he did not record the statement of P.W.1, P.W.2, P.W.3 and C.W.1 himself as such he violated the provision of section 355, Cr.P.C. It is true that section 355, Cr.P.C.
Lays down that memorandum of the substance of the evidence has to be written and signed by the Magistrate with his own hand. However, if the Magistrate is prevented from recording the statement himself he may ask his Reader to do so at his dictation but he should give reasons for not doing so. The statements according to the learned Additional Sessions Judge have not been written by the learned. Magistrate, himself as there was difference in handwriting. However, they have been signed by the learned Magistrate. It has not been the case of the defence at any stage that witnesses were recorded in the absence of the Magistrate. The statements, therefore, were recorded in the presence of the learned Magistrate and the same must have been done on his dictation. Mere fact that the Magistrate omitted to record reasons for not writing the statements himself would not by itself invalidate the prosecution evidence. According to the learned Additional Sessions Judge a mandatory provision has been ignored, therefore, statements are no statements in the. Eyes of law. This observation by the learned Additional Sessions Judge does not appear to be sqund and valid: It is correct that the word used in the section is "shall" be written and signed but this requirement has been qualified by the subsection (3) itself, according to which if he is prevented from recording the memorandum he is to record reasons of his inability to do so which of course be made in writing from his dictation in open Court and shall be signed by him. The fact that statements had been signed by him, were made in open Court and were recorded on his dictation, has nowhere been disputed. Although the word "shall" has been used in the section yet it has not been laid down as to what would be the consequence if a Magistrate omits to record the reasons for not writing the evidence himself. In absence of the consequences of violation of 'a provision of law, even if the word "shall may have been used the provision will be treated as directory and not mandatory. Chapter XLV takes care of irregular proceedings. Section 537, Cr.P.C.
Lays down that no findings passed by a Court of competent jurisdiction shall be reversed or altered due to any error, omission or irregularity in the mode of trial, unless it is shown that such omission or irregularity has occasioned a failure of justice. To assess and determine whether a failure of justice occurred or not, the Court has to take into consideration whether the objection could and should have been raised at the early stage in the proceedings. In the present case no objection was taken when the evidence was being recorded by the learned Magistrate. As there is no objection or complaint with regard to the correctness of the statements recorded by the learned Magistrate, I do not think any failure of justice has accrued. Mere omission not to record the reasons would not invalidate the statements. I, therefore, do not approve of the observation made by the learned Additional Sessions Judge that the conviction on the strength of this evidence cannot be maintained. I am not oblivious of the fact that order of acquittal has to be accorded scantily and respect but if acquittal is not based on sound reasons and has caused injustice, the same cannot be upheld. As the learned Additional Sessions Judge has not assigned valid reasons to acquit the respondent and has extended the benefit of doubt on fictitious and superfluous considerations, therefore, the impugned judgment has lost its validity.
14. As a result of the above discussion, I find that prosecution evidence has successfully brought home the guilt of the respondent Khalid beyond any doubt and he is liable to be punished under section 320, P.P.C. Accordingly, I set aside the impugned judgment of acquittal passed by Ch. Muhammad Hussain Maikan, learned Additional Sessions Judge, Faisalabad and convict the respondent Khalid under section 320, P.P.C. However, considering that the occurrence took place in the year 1996 and the respondent also remained in jail for a few days it will be unjust to send him back to jail after so long. I do not impose any sentence of imprisonment. He is, therefore, ordered to pay Rs, 1,42,322 as Diyat to the legal heirs of Mst. Safia deceased. In case he fails to make the payment of Diyat he will be kept in jail and be dealt with as undergoing simple imprisonment unless he furnishes security equivalent to the amount of Diyat to the satisfaction of learned Sessions Judge, Faisalabad as prescribed under section 331, P.P.C.
15. Appeal is disposed of in the above terms.