' This criminal acquittal appeal is preferred against the judgment, dated 23-9-1998 in Sessions Case No,436 of 1996 under section 320, P. P. C. Passed by the Court of learned VIth Additional District and Sessions Judge, Karachi South, whereby the accused Rais Ahmed has been acquitted in the case.
2. The facts of the prosecution case according to F.I.R. Are that on 4-10-1995 at 8-50 hours Asif Khokhar, M.L.O., Civil Hospital, Karachi, informed Aram Bagh Police Station, about the death of Muhammad Saleem due to a road accident near S.M. Law College by a Navy Coaster and that the accused driver Rais Ahmed had taken the dead body to the hospital in the same vehicle alongwith a gunman Shahzad Ahmed. The complainant A.S.-I. Gulzar Hussain of Aram Bagh Police Station lodged F.I.R. On the same date and proceeded with the investigation of the case. The prosecution case further reveals that while deceased Muhammad Saleem was coming on motorcycle from his house and when he reached at Ziauddin Chowk near S.M. Law College, was hit by the accused driver of the Coaster, who was driving his vehicle rashly and negligently. As a result of the injuries Muhammad Saleem expired while on the way to Civil Hospital.
3. The police after conducting usual investigation challaned the respondent-accused Rais Ahmed to face the trial.
4. Charge against the accused under section 320, P.P.C. Was framed vide Exh.2 to which he did not plead guilty and claimed to be tried.
5. The prosecution examined P.W.1 Tanveer Hussain (Exh.4), P.W.2, Syed Midhat Kazmi (Exh.5), P.W.3, Mehmood Baig (Exh.7), P.W.4 Gulzar Hussain (Exh.12). Nadeem Qaiser a Court-witness (Exh.16) was also examined who stated that P.Ws. Ayub, Karim Khan and Rahimullah were not available for the purpose of their examination before the Court.
6. The statement of respondent under section 342, Cr.P.C. Was recorded vide Exh.21. He has stated that in morning on 4-10-1995 at 8-00 a.m. He was going to garden when on the way- he saw one injured person alongwith motorcycle and 2/3 other persons present there and on their request the respondent took the injured to hospital. On reaching the hospital the doctor informed that injured was dead and the other persons accompanying the injured having disappeared, the doctor detained the respondent and made a report to the police where after Aram Bagh Police took him to the Police Station Aram Bagh, where the respondent was maltreated and beaten by police and his signatures obtained on some papers.
7. The learned trial Court framed the following points for determination:--
(1) Whether on 4-10-1995 at about 8-00 hours near S.M. Law College, Ziauddin Ahmed Road, Karachi, accused Raees Ahmed dashed motorcycle rider Muhammad Saleem son of Abdul Sattar while driving Coach bearing No,PN-4038 rashly and negligently and caused the death of Muhammad Saleem?
(2) What offence, if any, accused has committed?
' The Court after hearing the learned counsel for the parties acquitted the respondent-accused Rais Ahmed as stated above.
8. I have heard Mr. Arshad Jamal Siddiqui, Advocate for the appellant, Mr. Arshad Lodhi, A.A.-G. For the State and the Sub-Lieutenant Sami Waheed, Law Officer of Pakistan Navy appearing for the respondent Rais Ahmed. Respondent-accused is also present in Court.
9. It has been contended by the learned counsel for the appellant that the learned trial Court has failed to appreciate the evidence on record and has ignored material aspects present on the record which were sufficient to convict the respondent for the aforesaid charge, the learned trial Court did not attempt properly to summon the material witness of the case, who if examined, would have supported the prosecution case. It was next contended that in the Civil Suit No,1095 of 1996, filed by the appellant against the respondent-accused pending before Senior Civil Judge VIIIth, Karachi South, while answering paras.2 and 5, of the plaint the respondent has admitted the commission of offence and in para. 10 has totally admitted the same but the respondent in his statement recorded under section 342, Cr.P.C. Has denied the same. It is urged that the respondent in view of his own admission in the written statement filed in the said suit did make him liable to be punished in this case. It is lastly urged that the impugned judgment of acquittal be set aside and the respondent be convicted. The learned counsel for the appellant has not placed any law before me in support of his contentions, nor he has pointed out the material pieces of evidence ignored by the learned trial Court
10. On the other hand it has been contended by the learned Law Officer appearing for the respondent-accused that the prosecution witnesses examined at the trial have not implicated the respondent and that not a single eye- witness of the incident has been produced at the trial, that the respondent is innocent, he did not commit the offence and that the impugned judgment of acquittal is neither illegal nor perverse, arbitrary or mala fide and hence not liable to be reversed.
11. Mr. Arshad Lodhi, A.A.-G. Appearing for the State has also supported the impugned judgment passed by the learned trial Court and has opposed the appellant's appeal on the aforesaid grounds raised in favour of the respondent.
12. I have gone through the evidence brought on record by the prosecution at the trial and also the impugned judgment, dated 23-9-1998. The evidence on record does not implicate the respondent in any manner. P.Ws. Rahimullah, Karim Khan and Muhammad Ayub are said to be the eye- witnesses of the occurrence, though their names are not mentioned in the F.I.R. Court-witness Nadeem Qaiser (Exh.16) has deposed on oath that he could not find such witnesses due to their incomplete addresses and that in spite of his best efforts the witnesses could not be procured and that there was no likelihood of their appearance.
13. It is further evident from the closing statement of prosecution through Deputy District Attorney, dated 8-8-1998 that even Investigating Officer Gulzar Hussain who had undertaken to produce the eye-witnesses failed to procure the attendance of said eye-witnesses.
14. Neither the D.D.A. Nor the appellant/wife of the deceased, appear to be aggrieved with the mode of the trial. Learned trial Court or this Court could have been moved in this respect. There was nothing before the learned trial Court to assume that the said witnesses were available and were not being produced deliberately.
15. The averments made in the written statement filed by the accused in reply to the plaint in the suit filed by the complainant could not be made basis for conviction of the accused in the criminal case.
16. In view of the above, it is difficult to reach a conclusion that the impugned judgment of acquittal is perverse, arbitrary, against the evidence on record or is illegal.
17. Being supported in my above view by the authorities of Honourable Supreme Court reported as in case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11, (2) in the case Muhammad Ijaz Ahmed v. Raja Fahim Afzal and 2 others 1998 SCM R 1281 (3) in case of Muhammad Khan v. Maula Bakhsh and another 1998 SCM R 570, this criminal appeal is dismissed in limine.
18. Aforementioned are the reasons for my short order, dated 13-7-1999 whereby the petition was so dismissed.