PLJ 2009 Sh.C. (AJ&K) 60
Present: Iftikhar Hussain Butt, J.
GHULAM RASOOL SHAH--Appellant
versus
STATE--Respondent
Crl. A. No. 13 of 2008, decided on 20.1.2009.
Azad Penal Code--
----Ss. 320, 279 & 337-G--Accident on account of negligence and rash driving--Conviction and sentence recorded against accused by trial Court--Challenge to--Appreciation of evidence--Responsibility of proving technical fault upon police--Held: Due to rash and negligent driving of the accused the accident took place whereby one person died and five persons sustained severe injuries--Accused miserably failed to establish the fact that accident took place because of technical fault, the breaking of arm-end rather he shouldered the responsibility of proving technical fault upon the police--It has been established beyond any shadow of reasonable doubt that accused was driving the jeep in a rash and negligent manner--Appeal dismissed.
[Pp. 66 & 68] A, B & F
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 121 & 122--Burden of proof--Manner of occurrence--Beyond shadow of doubt--It is basic duty of prosecution to prove its case beyond any shadow of reasonable doubt but at same time if the accused claims exceptions and challenges the manner of occurrence then burden of proof and existence of circumstances as contemplated under Art. 121 of Qanun-e-Shahadat. [Pp. 66 & 67] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Defence in cross-examination--Important points of the prosecution evidence were not seriously challenged by defence in cross-examination--Portions of evidence will be deemed to be admitted by defence. [P. 68] D
2002 SCR 288.
Eye-witnesses--
----Eye-witnesses account is fully corroborated by ample confirmatory and supportive evidence. [P. 68] E
Interested Witness--
----Mere relationship of some of the eye-witnesses with the father of the deceased, is not sufficient to discard their confidence inspiring testimony when false implication of the accused was not even suggested to them. [P. 68] G
Stringent punishment--
----Accused due to fast, rash and negligent driving has caused death of a young man and injured five other persons, thus he deserves stringent punishment. [P. 68] H
Azad Penal Code--
----S. 320--Injuries or death of passengers of driven vehicle would not be covered by mischief of S. 320, APC rather it is limited to apply to the person on the road, run over by any vehicle. [P. 68] I
2007 SCR 1, PLD 2007 Kar. 152 and 2001 SCMR 1416, ref.
M/s Ch. Ibrahim Zia and Mujahid Hussain Naqvi, Advocates for Appellant.
Raja Mumtaz Hussain Kayani, Addl. A.G. for State.
Raja Faisal Majeed, Advocate for father of deceased.
Date of hearing: 20.1.2009.
Order
This appeal has been directed against the judgment of District Court of Criminal Jurisdiction Muzaffarabad dated 30.4.2008, whereby the accused-appellant was convicted and sentenced to pay `Diyat' Rs. 10,41,420/- alongwith a sentence of five years' R.I. under Section 320, APC. The accused shall undergo sentence of simple imprisonment till payment of `Diyat' which after realization shall be paid to the legal heirs of the deceased. He was further sentenced to pay fine Rs. 1000/- under Section 279, APC and in default of payment of fine he has to undergo the sentence of one month S.I. However, he was acquitted of the charge under Section 337-G, APC.
The facts precisely stated are that on the written report of Muhammad Riaz Khan SI/SHO an F.I.R was registered against Ghulam Rasool Shah at Police Station Garhi-Dopatta on 10.9.2004 at 12:30 p.m. wherein it was alleged that the complainant alongwith Abdul Rasheed, Ismail and Akhtar constables was perambulating towards Bhadyara when at 11:30 a.m. he received an information that an accident of a jeep took place at Khun-bandway. On receiving the aforesaid information, the complainant alongwith above mentioned constables reached at the place of accident and on inquiry came to know that Ghulam Rasool Shah was driving Jeep No. MDQA-138. The jeep was carrying a Barat from Namli Syedan to Kamar-bandi, which met an accident on account of negligence and rash driving of Ghulam Rasool Shah. As a result of accident one person died and five six persons sustained severe injuries. The dead body was taken to CMH Muzaffarabad by inhabitants of vicinity before arrival of the complainant, at the spot. He further stated that the broken Jeep is lying on the spot.
On this report a case under Sections 279, 320 & 337, APC was registered by Bashir Head Constable Police (P.W.21). During investigation, the injury form of Hafeez, Hussain Shah deceased Exh.PF was prepared by Muhammad Riaz Khan SI/SHO (P.W.20) on 10.9.2004. The Jeep 138-MDQA was taken into possession vide recovery memo Exh.PB in presence of Akhtar Hussain Police Constable No. 112 (P.W.2) and Abdul Rasheed Police Constable No. 492 (P.W.3), which was later on handed over to the appellant on superdnama Exh.PC. The site plan Exh. PL was prepared by Sajid Imran Inspector Police (P.W.18). The accident report Exh. PG and site-plan Exh. PH were prepared by Muhammad Saleem Durani MMPI (P.W.22). On 19.10.2004, Dr. Naseer Ahmad Shaikh (P.W.23) issued the death certificate of the deceased. On 22.9.2004 the blood-stained clothing of the deceased, the registration book of the aforementioned Jeep and the driving licence of the appellant were taken into possession vide recovery memos Exh.PD & PE in presence of Aftab Ahmad Police Constable No. 456 (P.W.9) and Mushtaq Ahmad Police Constable No. 187 (P.W.10).
After completion of the investigation, the accused-appellant was sent to face trial before District Criminal Court Muzaffarabad. The charge was framed but the accused denied the guilt and claimed the trial.
In support of its case, the prosecution produced Muhammad Riaz Khan SI/SHO Police (P.W.1), Akhtar Hussain Police Constable No. 112 (P.W.2), Abdul Rasheed Police Constable No. 492 (P.W.3), Abid Hussain Shah (P.W.4), Imam Hussain Shah (P.W.5), Aftab Police Constable No. 456 (P.W.9), Mushtaq Ahmad Police Constable No. 187 (P.W.10), Raja Nadir Khan (P.W.11), Syed Atif Bashir (P.W.12), Muhammad Fayyaz alias Manggi (P.W.14), Iqbal Shah (P.W.15), Mujahid Shah (P.W.16), Muhammad Rayasat (P.W.17), Sajid Imran Inspector Police (P.W.18), Naseer-ud-Din SI Police (P.W.19), Muhammad Riaz Khan SI Police (P.W.20), Bashir Head Constable Police (P.W.21), Muhammad Saleem Durani MMPI (P.W.22) and Dr. Naseer Ahmad Shaikh (P.W.23); however, P.Ws. 6, 7, 8 & 13 were given up.
The salient feature of the prosecution evidence and incriminating material was put to the accused for his explanation as required by Section 342, Cr.P.C. but the accused refuted the prosecution evidence and claimed to be innocent. The accused-appellant got his statement recorded under Section 340, Cr.P.C and produced Syed Khalid Hussain Shah (D.W.1) and Qadeem Hussain Shah (D.W.2) in his defence.
After completion of the trial, the learned District Criminal Court reached the conclusion that the prosecution has proved its case against the accused beyond any reasonable shadow of doubt and awarded him the sentences, mentioned above.
In support of the appeal, M/S Ch. Ibrahim Zia and Mujahid Hussain Naqvi Advocates zealously argued that the trial Court fell in grave error while recording the impugned judgment because the trial Court has not taken into consideration the defense version whereby it was stated that the accident, took place on account of breaking of arm-end. According to the learned Counsel, in view of aforesaid position the best evidence of Motor Vehicle Examiner was withheld by the prosecution which raises grave suspicious and doubt about the prosecution story. The learned Counsel further contended that the trial Court has erroneously penalized the accused on the charge of driving vehicle at high speed whereas the punishment for Qatal-e-Khata under Section 320, APC is dependent upon proof of rash and negligent driving only. The learned Counsel pointed out that the trial Court miserably failed to appreciate the prosecution evidence in contest of running of the vehicle on high speed because according to the P.Ws. the other vehicles were proceeding ahead from the Jeep of accused. Similarly it has further been deposed by the P.Ws. that during traveling, the injured P.Ws. jumped out of the vehicle, which amply establishes the fact that jeep meeting the accident was being driven at a normal speed. The learned Counsel laid great stress upon the point that if speed is measured and gagged with the time consumed from Domail to Khunbandi, the speed of fateful jeep was not more then 7/8 hours per mile, which cannot be described a high speed. The learned Counsel maintained that injuries or death of occupants or passengers of a driven vehicle would not be covered by mischief of Section 320, APC because it is limited to person or persons on road run over by the vehicle. According to the learned Counsel as no person on the road was injured or death of a person caused on the road; therefore, Section 320, APC is not attracted in the instant case; thus, the impugned judgment is not sustainable. The learned Counsel pressed into service the submission that according to the evidence, the fateful jeep did not strike on any hard material rather presence of skid marks speak of careful driving and not of a rash and negligent act of the accused. The learned Counsel referred to me the judgment of Apex Court recorded in bail petition of the accused and submitted that in the light of the dictum of Supreme Court, the impugned judgment has been recorded in an illegal fashion, which requires quashment. In support of the arguments reliance was placed upon the following authorities:--
1. 1995 MLD
2. PLD 1997
3. An unreported
judgment of Supreme Court of AJ&K titled
Controverting the arguments raised by the learned counsel for the accused-appellant, M/S Raja Mumtaz Hussain Kayani Addl. A.G. appearing on behalf of the State and Raja Faisal Majeed Advocate appearing on behalf of the father of the deceased submitted that the death of deceased and injuries of others injured P.Ws. have been admitted by the appellant whereby he claimed that the accidence took place because of fault of arm-end of vehicle therefore onus lies upon him to prove his claim but he did not produce any evidence in this regard; therefore, it has been amply proved on the record that accident took place on account of rash and negligent driving of the accused appellant, who was rightly convicted and sentenced by trial Court. The learned Counsel pointed out that it has also been established on the record that initially the vehicle was driven by Muhammad Rayasat (P.W.17) but the accused-appellant took away vehicle from him and started driving himself from Darbar Sahali Sarkar, whereupon the passengers made hue and cry but the accused did not stop the vehicle, resultantly, the passengers jumped out of the vehicle but the above stated portion of the evidence of Abid Hussain Shah (P.W.4) was not challenged during the cross-examination. Similarly, the deposition of Nadir Khan (P.W.11) about the fact that at the time of accident the vehicle capsized and all four tyres raised towards sky and 28/29 persons were riding in the Jeep at the time of occurrence but the aforesaid portions of the prosecution evidence were not challenged in cross-examination. Likewise, the statement of Syed Atif Bashir (P.W.12) about overturning of the Jeep was also not challenged in cross-examination. The Learned Counsel further submitted that the evidence of Muhammad Fayyaz (P.W.14) and Muhammad Rayasat (P.W.17) was also not seriously challenged during the cross-examination; therefore, it has been admitted on the part of defence that the accident took place on account of rash and negligent driving of the appellant. The learned Counsel pointed out that the appellant has admitted the facts during his statement recorded under Section 340, APC that before the present occurrence he met an accident while he was driving a vehicle during which two persons including bridegroom died. The learned Counsel laid great stress upon the point that the presence of skid marks of brakes are not proof of prudent driving, rather it proves the fact that the appellant was driving the vehicle at a high speed; therefore, he lost the control of the vehicle and when he applied the brakes, skid marks appeared on the road. The learned Counsel pressed into service the submission that Muhammad Saleem Durani MMPI (P.W.22) who examined the spot has given his expert opinion and according to his conclusion, the accident took place because of rash and negligent driving of the accused; therefore, the non-production of M.V.E does not demolish the prosecution story. The learned Counsel defended the impugned judgment on all counts. In support of the contentions, the learned Counsel cited the following case law:--
1. PLD 1997
2. PLD 2002
3. 2007 SCR 1.
I have given my earnest consideration to the arguments addressed at Bar and also examined the record carefully. In the instant case, the F.I.R Exh.PA was lodged by Muhammad Riaz Khan SI/SHO Garhi Dopatta (P.W.1) who joined the investigation from the place of occurrence and took into possession the broken Jeep alongwith other corroboratory evidence. According to his observation, the accident took place on account of rash and negligent driving of the accused.
Abid Hussain Shah (P.W.4), father of Hafeez Hussain Shah deceased, deposed that when the participants of Barat started sitting in the vehicle, he alongwith other persons refused to ride in the Jeep being driven by the accused because he has been committing accidents in the past; therefore, the accused asked Rayasat Hussain (P.W.17) to drive the vehicle but when the jeep reached Domail Rasheed-Abad, the accused snatched away the Jeep from Rayasat Hussain and started driving himself. He alongwith other passengers made hue and cry and forbade the accused not to drive the Jeep but he did not stop the vehicle. Thereupon, the passengers started jumping out from the Jeep. He further stated that when the Jeep reached Khunbandway, it met an accident because of the high speed and all the tyres separated from the vehicle. Resultantly, his son Hafeez Hussain Shah died and he alongwith Imam Hussain Shah, Raja Nadir Hussain, Pervaiz Hussain Shah, Sadiq Hussain Shah, Iqbal Hussain Shah and Mujahid Hussain Shah sustained severe injuries. One of his teeth was broken and he also sustained an injury on his leg. He also testified that prior to the present accident, the accused also committed an accident before wherein Maqbool Hussain Shah and Zahid Hussain Shah died.
Imam Hussain Shah (P.W.5) is another eye-witness to the occurrence. His statement is more or less identical to narration of Abid Hussain Shah (P.W.4). He stated that due to fast speed, the Jeep met an accident thereon the son of Abid Shah died and 5/6 persons got injured. He also deposed that he himself sustained injuries on his arm and got unconscious. The aforesaid deposition is also fully supported by Raja Nadir Khan (P.W.11), Atif Bashir (P.W.12), Muhammad Fayyaz alias Mangi (P.W.14), Iqbal Hussain Shah (P.W.15), Mujahid Hussain Shah (P.W.16) and Muhammad Rayasat (P.W.17). Although Syed Atif Bashir, Iqbal Hussain Shah and Mujahid Hussain Shah are closely related to the father of the deceased but at the same time they are also related to the accused. However, I don't find any material contradiction or any infirmity in their statements, which are also fully supported by impartial injured eye-witnesses like Muhammad Fayyaz alias Mangi, Imam Hussain Shah and Muhammad Rayasat, amongst them Raja Nadir Khan and Muhammad Rayasat are drivers by profession.
It is also admitted by the accused during his statement recorded under Section 340, Cr.P.C that at the time of misfortune 15/18 passengers were riding in the Jeep. It is further admitted by him that prior to the instant occurrence, he met an accident while he was driving a Jeep carrying a Barat thereat two persons died. It is again admitted by the accused that Muhammad Rayasat (P.W. 17) has been driving the Jeep from Dulai to Domail and thereafter he started driving the fateful Jeep. He also confessed that during the occurrence 10/12 persons were injured; however, he pointed out that to prove mechanical defect in the vehicle at the time of accident, was duty of the police and not of him. Similarly, Khalid Mahmood (D.W.1) did not state in the manner that the vehicle was being driven at a slow speed or the driver was careful and prudent rather he admitted the fact that the accused took over vehicle from Muhammad Rayasat. He further admitted that more than twenty persons were riding in the Jeep and he also admitted that prior to the occurrence, the accused had committed another accident. In this manner, it has been amply established on the record that due to rash and negligent driving of the accused the accident took place whereby one person died and five persons sustained severe injuries. It has also been proved that the fateful Jeep was overloaded and due to fast and rash driving, the driver could not control the Jeep. The accused miserably failed to establish the fact that the accident took place because of a technical fault, the breaking of arm-end rather he shouldered the responsibility of proving technical fault upon the police.
I am cognizant of the fact that it is the basic duty of
the prosecution to prove its case beyond any shadow of reasonable doubt but at
the same time if the accused claims some exceptions and challenges the manner
of occurrence then the burden of proof and existence of such circumstances as
contemplated under Article 121 of the Qanun-e-Shahadat,
wholly lies upon him especially if any benefit derived from the plea is aimed
at upsetting the case of prosecution. Similarly, Article 122,
postulates that if a fact is specially within the knowledge of such person then
burden of proving the same is again upon him. In this regard, reference can be
made to Mian Muhammad Nawaz
Sharif & others' case (PLD 2007
The same view has been affirmed in a case reported as Muhammad Khurshid Khan V. Muhammad Basharat & another (2007 SCR 1) wherein the following principle was enunciated at page 16 of the report:--
"It would not be out of place to mention here that in the instant case an exception was pleaded that she committed suicide. Now when it is admitted by the respondent that she died in his house but committed suicide, then the onus to prove the suicide lies upon him. Where death of a deceased has been admitted by a person but he has claimed that the death did not take place in the manner as stated by the prosecution but it took place in some other manner, then the onus lies upon him to prove as such. This view finds support from a case reported as Munjawar V. The State (1969 SCMR 407) wherein it has been held as under:--
"Thus, on the crucial point of Munjawar's belief as to whether the gun was loaded or not, there is absence of such proof as was within the power of the defence to lead. The burden of proving facts necessary to establish such a plea as that of accident is placed by the law (Section 105, Evidence Act) upon the person who raises the plea. In this case, not only has Munjawar made no attempt to discharge that burden, but he has also made it impossible for that plea to be investigated at any stage of the case, by raising it at the very last stage of the trial and declining to produce any evidence. The consequence is that there no indication to be found anywhere in the record outside the mere statement of the accused made at the very close of the trial, of the existence of any such belief as that upon which the plea of accident is based."
The aforesaid report clearly contained that where the death of a person is admitted and it is claimed that it took place in different manner, then the onus lies upon that person who alleged that death took place in different manner."
It will be relevant to point out that the accused pleaded exception at the time of framing of the charge sheet and stated that the accident took place because of the breaking of arm-end but he did not repeat the same defence at the time of his examination under Section 342, Cr.P.C rather the trend of cross-examination and suggestions put to the P.Ws. shows that, the defence version put forward was almost different from the version mentioned above i.e. the vehicle met an accident on account of failing of brakes.
It is also an admitted position on the record that the important points of the prosecution evidence were not seriously challenged by the defense in cross-examination, thus, these portions of evidence will be deemed to be admitted by the defense. (2002 SCR 288).
The eye-witnesses' account is fully corroborated by ample confirmatory and supportive evidence. The injury form Exh.PF, the death certificate Exh.PJ duly supported by Dr. Naseer Ahmad Shaikh (P.W.23) during his statement, the expert report Exh.PG, the site-plan Exh.PH, the recovery memo of fateful Jeep Exh.PB, the blood-stained clothing of the deceased taken into possession vide recovery memo Exh.PD, the registration book and driving license recovered from the accused vide recovery memo Exh.PE, the site-plan prepared by 1st informant Muhammad Riaz Khan SI Exh.PL and list of dead and injured persons Exh.PI amply corroborate the ocular version. Therefore, it has been established beyond any shadow of reasonable doubt that accused-appellant was driving the Jeep in a rash and negligent manner. Therefore, the failure of some of the P.Ws. who could not specifically state the speed with which the Jeep was driven is immaterial; however, some minor infirmities and discrepancies appearing in the prosecution evidence are but natural which do occur in every statement and rather present natural aspect of the occurrence contrary to parrot like deposition. At the same time, mere relationship of some of the eye-witnesses with the father of the deceased, is not sufficient to discard their confidence inspiring testimony particularly when false implication of the accused was not even suggested to them. The accused-appellant due to fast, rash and negligent driving has caused death of a young man and injured five other persons; thus, he deserves stringent punishment.
So far as the legal aspect of the case is concerned, I cannot subscribe to the view of Mr. Mujahid Hussain Naqvi, the learned Counsel for the accused that the injuries or death of passengers of a driven vehicle would not be covered by mischief of Section 320, APC rather it is limited to apply to the person or persons on the road, run over by any vehicle. In this regard, Taus Khan's case (1995 MLD 1775) referred to by the learned Counsel for the accused, has been overruled by the Apex Court of Pakistan. The case law is reported as The State through Advocate General N.W.F.P Peshawar V. Taus Khan & 2 others (2001 SCMR 1416), wherein it has been opined at page 1419 as under:--
"A bare perusal of Section 320, P.P.C. indicates that there are certain ingredients mentioned therein for awarding punishment; An offence under Section 320, P.P.C. would be constituted only if all the ingredients are present. First of all there should be rash and negligent driving. Learned Judge in Chambers has erred in law by holding that the word "driving" has not been defined. In other words learned Judge in Chamber wanted to extend the scope of this section to a particular type of driving otherwise this section does include the act of driving from a cycle up to heavy vehicle. In the instant case the allegation was a rash and negligent act by a person who was driving a Flying Coach. In order to determine whether the driver was rash and negligent act attending circumstances have to be looked into. In the instant case speed can very easily be determined by the fact that the vehicle went out of control hitting an ox which died at the spot and thereafter collided with a tree with such velocity that a person sitting in the Flying Coach died immediately and a number of passengers were injured. This shows that the learned Judge had erred in law by holding that prosecution failed to prove rash and negligent driving.
The reasoning that Section 320, P.P.C. can be attracted only if a person on the road dies on account of accident is also against the law. Such a qualification is not contained in any of the provisions of Penal Code. The only ingredient is "Qatl-i-Khata" by rash and negligent act. Consideration of being on a road on foot or inside a vehicle is not there and should not be read into the law."
As far as the contention of the learned Counsel for the
accused about the dictum of
For the foregoing reasons, finding no force in this appeal it is hereby dismissed.
(R.A.) Appeal dismissed