Over-speeding case law and acquittal .
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| Over-speeding case law and acquittal . |
**سید فدا حسین شاہ بمقابلہ ریاست** کیس کے اہم نکات درج ذیل ہیں:
1. **ایف آئی آر میں تاخیر**: حادثے کے پانچ دن بعد ایف آئی آر درج کی گئی، جس پر عدالت نے سوال اٹھایا کہ تاخیر کی معقول وضاحت نہیں کی گئی۔
2. **عینی شاہدین کی گواہی**: ایف آئی آر میں عینی شاہدین کے نام شامل نہیں تھے، اور بعد میں پیش کردہ گواہان نے درخواست گزار کی شناخت یا الزام کی تصدیق نہیں کی۔
3. **ثبوت کی کمی**: کوئی سائٹ پلان نہیں تھا جو حادثے کی جگہ کی درست نمائندگی کرتا ہو۔ استغاثہ یہ ثابت کرنے میں ناکام رہا کہ درخواست گزار نے غفلت یا لاپرواہی سے گاڑی چلائی۔
4. **ڈرائیونگ کا جرم**: عدالت نے یہ نوٹ کیا کہ صرف تیز رفتار ڈرائیونگ کو غفلت یا لاپرواہی کے جرم کے طور پر نہیں لیا جا سکتا، جب تک کہ یہ ثابت نہ ہو کہ ڈرائیونگ واقعی غیر ذمہ دارانہ تھی۔
5. **ملزم کا بیان**: درخواست گزار کا بیان یہ تھا کہ حادثہ احتیاط کے باوجود پیش آیا۔ عدالت نے ملزم کے بیان کو مکمل طور پر، نہ کہ جزوی طور پر، مدنظر رکھنے کی ضرورت پر زور دیا۔
6. **نچلی عدالتوں کی سزائیں**: نچلی عدالتوں نے مختلف دفعات کے تحت سزا دی تھی، لیکن سپریم کورٹ نے تمام فیصلوں کو کالعدم قرار دیتے ہوئے درخواست گزار کو شک کا فائدہ دیتے ہوئے بری کر دیا۔
**سید فدا حسین شاہ بمقابلہ ریاست** کیس میں، سپریم کورٹ آف پاکستان نے اسلام آباد ہائی کورٹ کے فیصلے کو چیلنج کرنے والے پٹیشن پر نظرثانی کی۔ درخواست گزار نے حادثے سے متعلق مجرمانہ سزا کو کالعدم قرار دینے کی درخواست دی تھی۔
فیصلے کے اہم نکات درج ذیل ہیں:
1. **ایف آئی آر میں تاخیر**: ایف آئی آر درج کرنے میں پانچ دن کی تاخیر ہوئی، اور اس تاخیر کی کوئی معقول وضاحت فراہم نہیں کی گئی۔ اس تاخیر نے ایف آئی آر کی سچائی پر اثر ڈالا۔
2. **ثبوت کی کمی**: استغاثہ یہ ثابت کرنے میں ناکام رہا کہ درخواست گزار ہی گاڑی چلا رہا تھا جو حادثے میں ملوث تھی۔ گواہوں کے بیانات نے درخواست گزار کی شناخت یا اس کے دھڑکانے اور غفلت کے دعوے کی تصدیق نہیں کی۔
3. **ناکافی استغاثہ کا ثبوت**: حادثے کی جگہ کا نقشہ یہ ثابت کرنے میں ناکام رہا کہ درخواست گزار کی ڈرائیونگ غیر ذمہ دارانہ تھی۔ رفتار کی حدود یا درخواست گزار کی ڈرائیونگ کے بارے میں کوئی خاص تفصیلات موجود نہیں تھیں۔
4. **ملزم کا بیان**: درخواست گزار کا بیان جو دفعہ 342 کے تحت ریکارڈ کیا گیا تھا، اس کے دفاع کے مطابق تھا کہ حادثہ احتیاط کے باوجود پیش آیا۔ عدالت نے نوٹ کیا کہ ملزم کے بیان کو مکمل طور پر، نہ کہ جزوی طور پر، مدنظر رکھا جانا چاہیے۔
عدالت نے اکثریت کی بنیاد پر درخواست منظور کی، درخواست گزار کو بری کیا، اور نچلی عدالتوں کے فیصلے کو کالعدم قرار دیا۔ درخواست گزار کو شک کا فائدہ دیتے ہوئے آزاد کر دیا گیا۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE JAMAL KHAN MANDOKHAIL
MRS. JUSTICE AYESHA A. MALIK
MR. JUSTICE MALIK SHAHZAD AHMAD KHAN
Criminal Petition No.134/2024
(Against Order dated 17.01.2024 passed
by Islamabad High Court, Islamabad in
Crl. Rev. No.35/2023)
Syed Fida Hussain Shah
…Petitioner
Versus
The State and another.
…Respondents
For the Petitioner
: Mr. Muhammad Jawad Zafar, ASC.
For the Complainant
: Mr. Junaid Iftikhar Mirza, ASC.
For the State
: Mr. Fauuzi Zafar, ASC as State
Counsel Islamabad.
Inamullah, ASI/IO, PS, Ramna,
Islamabad
Date of Hearing
: 04.07.2024
JUDGMENT
MALIK SHAHZAD AHMAD KHAN, J-. Through the
instant petition under Article 185(3) of the Constitution of Islamic
Republic of Pakistan, 1973, the petitioner has assailed judgment
dated 17.01.2024 in Criminal Revision No.35/2023, passed by the
learned Islamabad High Court, Islamabad, with a prayer to set aside
the said judgment and acquit him, in case registered vide FIR N
Criminal Petition No.134 of 2024
2
464/2014 dated 04.12.2014 under Sections 279, 427 and 320 PPC,
at Police Station, Ramna, District Islamabad.
2.
Arguments heard and record perused.
3.
As per brief allegations levelled by Colonel Abdul Waheed
(complainant) in the contents of the FIR, on 30.11.2014 at about 6.30
pm his brother Javed Akhtar Qazi and nephew Shoaib Akhtar were
coming from Wah Factory to Islamabad on their Suzuki Mehran car
bearing registration No. IDN-8363 and when they reached at the
traffic signal of Police Lines, situated at Kashmir Highway,
Islamabad, they saw that another car was parked in front of their car
on the said road. In the meanwhile, a Parado Jeep bearing
registration No. BD-6750 arrived at the spot at a very high speed and
hit the above mentioned car of the brother and nephew of the
complainant due to which they were severely injured and brought to
the PIMS Hospital, Islamabad. The complainant on receiving the
information of the occurrence reached at the PIMS Hospital
Islamabad, however, due to the serious condition of the injured they
were shifted to Shifa Hospital, Islamabad, but his brother and
nephew succumbed to the injuries at the Shifa Hospital, hence the
above mentioned FIR.
4.
The occurrence in this case took place on 30.11.2014 at
6.30 pm, but the FIR was lodged on 04.12.2014 at 6.30 pm and as
such there is delay of five (05) days in reporting the matter to the
Police. No plausible explanation has been given by the complainant
for the above mentioned gross delay in lodging the FIR, therefore, the
sanctity of truth cannot be attached to the said delayed FIR
Criminal Petition No.134 of 2024
3
5.
It is further noteworthy that although the FIR was lodged
with the delay of five (05) days from the occurrence but even then the
name of any eye-witness was not mentioned therein. Admittedly the
complainant (PW-1) is not an eye-witness of the occurrence. The
prosecution subsequently introduced Javed Akhtar PW-2 and Khan
Khawas Khan PW-4 as eyewitnesses in this case but as mentioned
earlier the names of said eye-witnesses were not mentioned in the
contents of the delayed FIR.
6.
It is further noteworthy that even the name of any
accused or his description or features were also not mentioned in the
above referred delayed FIR. Admittedly, no identification parade of
the petitioner has been held in this case.
7.
As mentioned earlier, the complainant himself was not
an eye witness of the occurrence. So far as, the subsequently
introduced eyewitnesses, namely, Javed Akhtar (PW-2) and Khan
Khawas Khan (PW-4) are concerned, it is observed at the cost of
repetition that the names of said eyewitness were not mentioned in
the FIR which was lodged after five days of the occurrence. Javed
Akthar (PW-2) stated that on 30.04.2011 at 6.30 pm he was coming
from the vegetable market to Islamabad city and when he reached at
the signal of the Police Lines situated at Kashmir Highway
Islamabad, he noted that Mehran car of Javed Akhtar Qazi deceased
was parked on the left side of his vehicle, whereas, a ‘Nissan Sunny’
car was parked in front of his own car. In the meanwhile a Parado
Land Cruiser hit with the above mentioned Mehran car due to which
two persons present in the said car were seriously injured.
Criminal Petition No.134 of 2024
4
In his statement before the learned trial court, he has not
mentioned the registration number of the Parado vehicle which hit
the vehicle of the deceased. Even he did not name the petitioner in
his above referred statement. He did not state that it was Syed Fida
Hussain Shah, petitioner who was driving the above mentioned
Parado-Land Cruiser which hit the car of the deceased. He further
stated that he cannot tell the colours of the vehicles of the deceased
or the accused. He also stated that he cannot tell that from which
direction the vehicle of the accused came at the spot. He further
stated that he did not know the accused or the deceased of this case.
The relevant parts of his statement made during cross-examination
are reproduced hereunder:
Likewise the name of other eyewitness namely, Khan
Khawas Khan, Inspector (PW-4) was also not mentioned in the
contents of the delayed FIR. He has also not stated before the learned
trial Court that the above mentioned Parado vehicle was driven by
Syed Fida Hussain Shah, petitioner. He has not named the petitioner
in his examination-in-chief or during his cross-examination. He has
categorically conceded during his cross-examination that he had not
seen the occurrence though he reached at the spot within few
seconds from the occurrence. He further conceded that he has not
given any statement at the spot that the occurrence took place due to
Criminal Petition No.134 of 2024
5
rash and negligent driving. He has further conceded that the driver of
the Land Cruiser had already fled away from the spot when he
reached there and no driver was present inside the Land Cruiser. The
relevant parts of his statement are reproduced hereunder for ready
reference:
It is, therefore, evident that both the above-mentioned
eye-witnesses of the occurrence produced by the prosecution have
not named the petitioner in this case or alleged that the petitioner
was driving the vehicle in question which hit the deceased.
8.
It is further noteworthy that no site plan of the place of
occurrence has been prepared in this case on the pointation of any
eye-witness of the case. It is true that Khan Khawas Khan, Inspector
(PW-4) has stated that he prepared site plan of the place of
occurrence (Exh:PW-4-A) but perusal of the said document shows
that the same is not a site plan rather it is written on the said
document that the same was a report regarding traffic accident. As
mentioned earlier Khan Khawas Khan (PW-4) has conceded that he
Criminal Petition No.134 of 2024
6
was not an eyewitness of the occurrence and the name of any eyewitness, on the pointation of whom the site plan was prepared has
not been mentioned in (Exh:PW-4-A). It is case of the prosecution
that in fact the car of the deceased persons was parked at the signal
of Police Lines situated at Kashmir Highway, Islamabad when a
Parado Jeep hit the said car, therefore, it should be presumed that
the occurrence took place on account of rash and negligent driving of
the driver of the above mentioned Parado Jeep. In this respect, we
have noted that no traffic signal has been shown in Exhibit PW-4-A.
As no traffic signal has been shown in Exhibit PW-4-A, therefore, it
cannot be held that Car of the deceased was parked on the Kashmir
Highway, Islamabad due to said traffic signal, waiting for opening of
the same, when the vehicle of the accused hit the said Car. We have
further noted that it was not put to the petitioner in his statement
recorded under Section 342 Cr.P.C. in clear terms that the Car of the
deceased was standing on the Kashmir Highway, Islamabad as traffic
signal on the said road was closed and at that time the vehicle of the
accused hit their vehicle. Under the circumstances, when a piece of
prosecution evidence has not been specifically put to the
accused/petitioner in his statement recorded under Section 342
Cr.P.C. then the said piece of evidence cannot be used against him.
Learned counsel for the complainant next argued that it is so
mentioned in (Exh:PW-4-A) that there were marks of friction/rubbing
of tyres at the spot which were sixty feet long and it shows that the
Parado Jeep was driven by the accused rashly and negligently, but
Khan Khawas Khan (PW-4) has not stated before the learned trial
court that he was carrying any tool of measurement at the time of
preparation of Exhibit PW-4-A to measure the length of marks of
Criminal Petition No.134 of 2024
7
friction/rubbing of tyres on the road. Moreover, admittedly he was
performing his duties as a traffic inspector at the time and day of
occurrence and he was not an investigating officer in this case,
therefore, it was not his duty to carry a tool of measurement with him
and prepare a site plan of the place of occurrence, rather the same
was the duty of Muhammad Yousaf, SI (PW-5) who was the first
investigating officer of this case, but surprisingly he has not prepared
any site plan of the place of occurrence.
No prosecution witness has stated that what was the
prescribed speed limit of the vehicles on the Kashmir Highway,
Islamabad and what was the approximate speed of the Parado Jeep
at the time of occurrence which statedly hit the car of the deceased
persons. Under the circumstances it is not determinable in this case
that as to whether the accident took place due to any fault of the
driver of the Parado Jeep or the same took place on account of any
mistake of the deceased persons. Moreover, it is by now well settled
that merely driving a vehicle at a high speed at the Highway is not an
offence, unless it is proved that the driving of the accused was above
the prescribed speed limit and the same was also rash and negligent.
Furthermore, if the injured or the deceased were themselves
responsible of any rash or negligent act then the ingredients of above
mentioned offences are not attracted against the driver of the other
vehicle. Reference in this context may be made to the cases of Israr
Khan v. The State and another (2018 YLR Note 236), Muzaffar Ali alia
Nannah v. The State (1999 MLD 567), Muhammad Ashiq v. The State
(2018 YLR 2589), Mushtaq v. The State, (1998 P.Cr.L.J. 158),
Muhammad Rafique v. The State (2020 P.Cr.L.J. 688), Yasir Arafat v.
The State (2012 MLD 611).
Criminal Petition No.134 of 2024
8
In the case of “Israr Khan” (supra) it was observed as under:-
“Admittedly deceased and the injured
witness of the case were student of 8th class
and aged 13/14 years. The deceased had no
authority to ride motorcycle without licence.
Negligence could be attributed to the
deceased himself meeting accident at that
time being rash and negligence to invite his
own death for a collision with the truck”.
In the case of “Muzaffar Ali alias Nannah” (supra), it was
observed as under:-
“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”.
Likewise, the relevant findings in a judgment in a road
accident case, reported as “Muhammad Ashiq” ibid are reproduced
hereunder for ready reference
Criminal Petition No.134 of 2024
9
“In order to constitute offences under sections
279 and 320, P.P.C., it is necessary for the
prosecution to prove that besides over speed
driving accused was also guilty of driving
rashly and negligently. In case of collusion
between two vehicles, the Court had to
determine many factors. Where the high
speeding could not be made a ground for
presumption that driver was responsible for
the accident, unless it is established in a
reasonable manner that besides, the over
speeding, driver of the vehicle was found rash
and negligent while driving”.
Similar view was taken by the, learned Lahore, Balochistan and
Peshawar High Courts in the remaining judgments cited above.
9.
Keeping in view all the above-mentioned facts, we have
come to this irresistible conclusion that the prosecution has
miserably failed to prove that it was the petitioner who was driving
the vehicle in question (Parado). The prosecution has also not proved
through any cogent evidence that it was driver of the parado vehicle,
who was responsible for rash and negligent driving, and as such the
prosecution failed to discharge its initial burden to prove the case
against the petitioner beyond the shadow of doubt.
10.
At this stage learned State Counsel assisted by the
learned counsel for complainant has vehemently argued that as the
petitioner has stated in his statement recorded under section 342
Criminal Petition No.134 of 2024
10
Cr.P.C. that the accident took place beyond his control despite
utmost care and caution on his part, therefore, it is proved that the
petitioner has admitted the occurrence but as the petitioner could
not prove his above mentioned defence plea therefore he has rightly
been convicted and sentenced by the courts below. In this respect, we
may observe that it is by now well settled that when the prosecution
evidence is disbelieved then the statement of an accused is to be
accepted or rejected in toto. In such situation, it is legally not
permissible to accept the in-culpatory part of the statement of an
accused and reject the ex-culpatory part of the same statement.
Moreover, the petitioner has not admitted in his above-mentioned
statement that he was driving the vehicle rashly or negligently,
therefore, his conviction and sentence, solely on the basis of his said
statement for the charges of rash and negligent driving, is not
sustainable in the eye of law. The relevant part of the statement of
the petitioner recorded under section 342 Cr.P.C. and referred to by
the learned State Counsel assisted by learned counsel for the
complainant, reads as under:
‘It is absolutely incorrect. I am having a valid
driving license. I never drive rashly,
negligently. The prosecution has badly
failed to prove that I was driving negligently
and the accident happened due to my fault. I
have no enmity towards the victims, they are
not even known to me. I am innocent and
have never committed the alleged
offences. The accident happened beyond my
control despite utmost care and caution on my
part.’
Criminal Petition No.134 of 2024
11
[Underlining and bold is supplied for emphasis].
It is, therefore, evident from the perusal of the statement
of the petitioner recorded under Section 342 Cr.P.C. that the
petitioner has categorically stated that he was innocent and he never
committed the alleged occurrence. The petitioner has also stated
categorically in his above mentioned statement that he had never
driven the vehicle rashly or negligently and he took utmost care and
caution at his part while driving the vehicle. It is true that in the last
sentence of his statement under Section 342 Cr.P.C, the petitioner
has stated that the accident happened beyond his control despite
utmost care and caution on his part, but even from this part of the
statement of the petitioner, the ingredients of offences of rash and
negligent driving are not made or proved. In the case of Muhammad
Rafique vs. The State (2020 P.Cr.L.J. 688), it was observed as under:-
“No evidence was available on record to show
that at what speed the driver was driving the
bus, although the appellant in his statement
under Section 342, Cr.P.C. admitted that he was
driving the vehicle, but denied rashly or
negligence. The statement of accused/appellant
under Section 342, Cr.P.C. can be taken in toto
not in peace meal. The prosecution must prove
his case with cogent, confidence inspiring
evidence that the appellant was driving
negligently which is lacking in the case”.
Criminal Petition No.134 of 2024
12
Likewise, in the case of Muhammad Asghar v. The State
(PLD 2008 SC 513), this Court was pleased to observe as under:-
“It is settled law by now that a statement of
an accused recorded under section 342
Cr.P.C. is to be read in its entirety, is to be
accepted or rejected as a whole and reliance
should not be placed on that portion of the
statement which goes against the accused
person. Reference can be made to the cases of
Shabbir Ahmad v. The State PLD 1995 SC
343 and The State v. Muhammad Hanif and 5
others 1992 SCMR 2047”.
Similar view was taken by this Court in the cases of Ghulam Qadir v.
Esab Khan (1991 SCMR 61) and Sultan Khan v. Sher Khan (PLD
1991 SC 520).
If the above mentioned statement of the petitioner is
accepted in toto then no offence of rash and negligent driving on the
part of the petitioner is made out in this case. There would have been
some force in the argument of learned State Counsel assisted by the
learned counsel for the complainant, if the petitioner had stated that
the occurrence of this case took place due to his rash and negligent
driving but no such statement was made by the petitioner, therefore,
the ingredients of offences under Sections 320,427, 279 PPC are not
made out in this case against the petitioner on account of his above
mentioned statement, wherein, the petitioner categorically stated that
Criminal Petition No.134 of 2024
13
he took utmost caution and care and he never drove the vehicle
negligently or rashly, hence, it cannot be held that the petitioner
admitted that the occurrence took place due to his rash and negligent
driving.
11.
In the light of above discussion, by majority of 2:1 (Mrs.
Justice Ayesha A. Malik, dissenting), this petition is converted into
appeal and allowed. The judgments dated 19.9.2022, 16.02.2023 and
17.01.2024 of the learned Trial Court, Appellate Court and that of the
High Court, respectively are hereby set aside. The appellant is
acquitted of the charges while extending him the benefit of doubt and
he be set at liberty forthwith, if not required to be detained in any
other case.
12.
These are the detailed reasons of our short order of even
date (04.07.2024).
JUDGE
As I disagree, I have
given my dissent opinion
attached herewith.
JUDGE
JUDGE
Islamabad
04.7.2024
NOT APPROVED FOR REPO
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