' The appellant through this criminal appeal has assailed the judgment, dated 26-1-1999 passed by VIIIth Additional Sessions Judge, Karachi South in Session Case No,650 of 1998 whereby he convicted the appellant under section 320, P.P.C. And awarded him to suffer R.I. For two years and to pay Diyat of Rs,2,75,000 (Rupees two lacs and seventy-five thousand only). The Diyat amount was ordered to be deposited in the account of Government of Sindh as no legal heir of deceased was available.
2. Briefly the facts giving rise to this criminal appeal are that on 25-11-1998 A.S.-I. Sarfraz, Mashirnama of Police Station, Mithadar recorded F.I.R. On behalf of State alleging therein that he was on duty at police station on the aforesaid date when at about 1.5 a.m. He received Wireless information through operator H.C. Ashfaq that M.L.O. Civil Hospital Karachi had intimated him that they had received one injured at 11-45 a.m. Whose name was not known and was unconscious. The injured was brought by P.C. Zafar Abbas at Civil Hospital Karachi. The injured met with an accident at Chundrigar Road Karachi opposite Habib Bank Plaza.
3. A.S.-I. Sarfraz made entry in Roznamcha and went to Civil Hospital Karachi. He contacted M.L.O.
And sought permission to record the statement of injured. He was informed that the injured was not in position to give statement. The injured subsequently expired in hospital due to the injuries.
A.S.-I. Recorded the F.I.R. At about 17-35 hours and made necessary correspondence and commenced the investigation of the case. He inspected the dead body prepared inquest report and Mashirnamas of dead body and later on handed over dead body to Edhi Trust. Complainant A.S.-I. Sarfraz proceeded to scene of offence and prepared the Mashirnama of Vardat. He recorded 161, Cr.P.C. Statements of eye-witnesses and arrested accused. He took vehicle bearing Registration No,S-7457 Suzuki in possession. He got the vehicle examined by Expert. After completing the investigation sent up the accused to stand trial.
4. The case was subsequently, transferred to the Court of VIIIth Additional Sessions Judge South Karachi who framed the charge against accused to which he pleaded not pay and showed his inclination to face the trial.
5. The prosecution in order to prove their case examined P.W. S.-I. Azizur Rehman Exh.3., who produced memo. Of Vardat, arrest of accused of securing of car bearing Registration No,S-4757 Suzuki as Exh.4. P.W.2 A.S.-I. Sarfraz Khan as Exh.5, who produced Entry No,15 dated 25-11-1998 as Exh.6, letter to M.L.O. For recording statement of injured alongwith endorsement of M.L.O. As Exh.7., memo. Of inspection of dead body as Exh.8, inquest report as Exh.9, photo of the deceased as Exh.10, sketch of Vardat as Exh.11, F.I.R. As Exh.12 and report of MVI as Exh.13, P.W.3 Shahid Ahmed Exh.14, P.W.4 P.C. Zafar Iqbal Exh.15. P.W.5 M.L.O. Dr. Muhammad Hanif Shaikh Exh.16, cause of death certificate Exh.18, whereafter side of prosecution was closed by learned D.D.A. Vide his statement Exh.19, dated 11-9-1999.
6. Statement of accused under section 342, Cr.P.C. Was recorded wherein he denied allegations against him and pleaded that no private person has deposed against him. All the prosecution witnesses were police officials. They falsely implicated him and snatched the car. He stated that he was passing through the road and on seeing one person in injured condition, he offered his services for taking the injured to hospital who was laying on foot path but subsequently the police for mala fide purposes took him to police station and involved him in this case. He examined himself on oath wherein he stated that on 25-11-1998 he did not commit any accident.
7. After completing the trial, the Court came to the conclusion that prosecution has been able to bring home the guilt against accused and he convicted him in terms stated above.
8. I have heard Miss Masooda Siraj for appellant and Mr. Arshad Lodhi, A.A.-G. The latter has not supported the impugned judgment.
9. It is argued that incident was allegedly witnessed by P.W. Azizur Rehman, Sub-Inspector, Mithadar and P.C. Zafar. The alleged incident had taken place in a thickly populated area but no private person was examined the aforesaid two eye-witnesses have not stated in their depositions that the appellant was at fault and he had been driving negligently. Admittedly the incident had occurred at 11-45 a.m. And later on accused slipped away from the Vardat. He came back to the Vardat at about 5-10 p.m. And the police recognized him to be the same person who was driving the car. It is argued that for convicting the accused under section 302, P.P.C. The ingredients of aforesaid section are to be proved beyond reasonable doubt. The alleged eye-witness Azizur Rehman has not stated in his deposition that appellant was driving the car rashly and negligently.
Witness Zafar Iqbal has not given the particulars of the incident as to how the accident occurred. It is submitted that the most material fact to be considered in this case is as to whether the police personnel were available at the scene of offence and had they been there, they would have first taken the accused in custody and then they could take any further action in the matter. It is argued that the appellant was involved in the matter by the police in order to show their efficiency. P.W.
Shahid who was private witness did not support the prosecution and was declared hostile.
10. Mr. Arshad Lodhi learned A.A.-G. Does not support the impugned judgment for the aforesaid reasons.
11. I have perused the record and examined the depositions of witnesses. The alleged incident was witnessed by Sub-Inspector Azizur Rehman and P.C. Zafar Iqbal. P.W. Azizur Rehman has not stated in his deposition that the appellant was driving the vehicle rashly and negligently. However, P.W.
Zafar Iqbal has stated that appellant was driving rashly and negligently but his evidence is not corroborated by any private witness or any circumstance. The allegations have been denied by the appellant in his statement under section 342, Cr.P.C. He also examined himself on oath and denied the prosecution case. Medical evidence cannot be treated to be a corroborative piece of evidence to the ocular evidence .As it only shows that man died due to injuries. P.W. Shahid who was a private witness did not support the prosecution case and was declared hostile. The evidence of complainant Sarfraz Khan is of no consequence as he was not an eye-witness. The prosecution failed to examine any person of the locality. The point which is worth to consideration is that as to why the alleged eye-witnesses who are Police Officers did not take the appellant into custody in the first instance when they saw the incident. They let the accused to escape from the scene of offence and then what were the circumstances which compelled him to come again to the Vardat and contact the police at 5-10 p.m. Under such circumstances and situation, it would not be safe to convict the appellant. The prosecution has failed to prove its case beyond reasonable doubt. The appeal was, therefore, allowed and the sentence awarded to him was set aside by a short order, dated 3-6-2003. These are the reasons for the same.