Israr Khan VS the State

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BEFORE THE PESEAWARIIIGH COITRT T

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Israr Khan son of.Sakhawat Shah IUO Piran Dag Baisod, Pabbi Tehsil and Distsict Noshera presently at District Jail Temergara Dir Lower. .......Appellant it

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VERSUS ,I

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l. The State. I

2.Ismail Jan S/O Sher Afzal R/O Ningolai Kabal District Swat. ft ..........Respondents $,t.

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APPEAL UNDER roN 410 0F TEE CODE OF' l:

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CRIMINAL PROC EDURE 1898 READ WITE PIIARAGRAPH 10 l

SUB PARAGRAP H 8 OF NIZAM I ADAL REGTJLATION, 2!ID I

AGAISNT THI ORDER AND JUDGMENT OT' ADDITIONAL ,1

t SESSIONS JI'DG W IZAFI ZILLAOAZI KABAL D ATErt 24.07.2014

VTDE WHICH THE APPELLANT WAS CONVICTED IN CASE FIR *

{t No. 13 N 279t 7-Gl 42

PPC OF POLICE STATION KAI{JU. SWAT *WAS- ,F

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SENTENCED UNI)ER SECTION 279 ONE- YEAR R.I A}ID TO PAY

FINE O F IOOO- AND IN I)ET'AULT T(l SIIf,'F'ER ONf,] M o NTH S.I t

ER ECTI P R TWO YEA !,

R.I AND D YAT IN LUMP SUM TO TEE LEGA-L OF THE t

DECEA . UNDER SEC TION 337-G PPC IM PRE,SENMENT FOR I

TWO YEARS AND TO PAY DAMAN TO TFE TUNE OF Rs,50'000 TO THE JUR.ED AND UNDER SECTION 427 TO PAY If, COMPENSATION OF Rs.34'400- TO TITE LEGAL HEIR s oF Ttm

DECEASED. A LL THE SENTENCES WERE DIRECTED TO RIJN

l- o N'IIP E NTIJ IT,II'T]T Rtr.. [.rT rt F SECTI rlNt .n a-P Dr- l-

PRAYE RIN APPEAL: I

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By acccpting the instant Criminal Appeal, the conviction and sentences I awarded to the appellant/ convict may graciously be set aside and the

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t appellant be acquined of the charges leveled agalnst him. Any other ielief that is just and proper may also graciously be granted. i= :t

fudgment Sheet

PESHAWAR HIGH COURT. NNGOi|.il BENCHl

DAR UL QAA. SWAT

JI'DICIAL DEPARTMENT

JUDGMENT

Cr.A. No. 192-W2014.

Date of hearing .... 08.11.2017. Aooelhnt: ( Israr Khail bv Mn Amb Gulab Khon,Advocata Resoondenh: (TheState& I snorheil bv Barrister Asad Haneed-w-Rehnan Stalc couael and Sadat Zulfioan Advocata

TOHAT TAD IBRAHIT KHAN. J...

In line up of the asservations against the accused/Appellant Israr Khan, a driver ofTruck bearing No. SWAT C-8267 resident of Piran Dag Baisod Pabbi Tehsil & District Nowshera, while he was coming from Matta approaching towards Kanju is said to have met an accident, rashly driving with high speed when reached in .*c front of BHU Barabandi hit motorcycle bearing No. AKK-1309 causing death of Idress Khan on the spot and his companion Ubaidullah sustained multiple injuries. Due to head on 4.Y71rr"-6

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collision the motorcycle got damaged, therefore, also committed the offence of mischief who being formally charge-sheeted by the Court of leuned Additional Sessions Judge/Izafi Zila Qazr Swat at Kabal on 09.09.2013 and by re-fiamed charge by rhe said learned Court again ot 24.07.2014. The convict/Appellant realizing utonost care while driving truck did not take responsibility and claimed trial.

2, ln order to bring home charges, the prosecution examined Ismail Jan as pW-I, Qareebullah as PW-2, Alamgir as PW-3, Lal Sher Khan as PW-4, Noor Rehman as PW-5, Muhammad Ibratrim Constable as PW-6, Aurangzeb Khan SI as PW-7, Zia-ur-Rehman as PW-8, Amjad Ali I$an SHO as PW-9, Muhammad Rasool Khan Constable as PW-10, t/' Muhammad Amin as PW-ll, Ibrahim as PW- f 12, ltaz Ahmad Constable as PW-13, Usman Ali ASI as PW-14, Shahab-ud-Din Constable as PW-l5, Ijaz Khan as PW-16, Rasool Khan ASI .Fl+ ;- ':: :

=fl as PW-17, Dr. Hidayatullah SMO Matta ,:. rcl,t ,,.,t (s.8.) M.,I0rt M.t.6!d lbrl r fb!

Hospital as PW-18, Mutrammad Ilcam Khan MVE as PW-I9, Qabla Alam as P\Y-20, Ubaidullatr as PW-21, Rasool Khan ASI as PW-22, Sahib Gul Khan ASI as PW-23 and Dr. Iqbal as PIV-24. The prosecution closed its evidence. Thereafter, the accused facing trial was examined under section 342 of the Code of Criminal Procedure whercin he denied the charge, posed innocence and stated to have falsely been implicated in the case. He, however, wished neither to produce defence, nor to examine himself on oath as required under section 340(2), Cr.P.C.

3.Then by the judgment contained in Sessions Case No. 2517 of the year 2013, ,). found the accused/Appellant to be responsible f because of his rash and negligent driving, his such act taking life of Idress Khan and caused multiple injuries to his companion Ubaidullatr, the following sentences were passed fl-f {{'+T I * 't'

@) a6 279 to one yer N alongwilh frn, ,f' ns. 3,00U- or ln delault thercolto sufcr 0I monlh SI.

A) U/S 320 PPC to 2 years Rf aad to poy Dtyot tn luotp sam to the LRs ol deceased Idress Khan.

(c)UrS 337-G PPC to 2 years RI ond to poy Damon of Rs. 50,000 ln lump sum to the lnJarcd Ubatdullah.

@) A/S 07 PPC to poy Rs. Jt,t00/- os compensollon to the LRs ol the deceased ln rcspect of domogc caased lo the molorc!,cla

(e)The accuseilAppellant shall be kept in Jail and dealt wilh tn some monn* os I sentcnce to sbrple lnprbonment dll paymenl ol Dlyot and Daman ln toto. Ifowever, benefit of Seaion jE2-B Cr.p.C was also eiendcd to hlrrr.

4.This is a Criminal Appeal under section 410 of the Code of Criminal Procedure 1898 read with Paragraph 10 Sub-Paragraph (8) of Sharia Nizarn-i-Adl Regulation 2009 with the following prayer:-

v^ "By accepling lhe instanl Crlmlnal Appeal, lhe canvlction and sentence aworded lo lhe ll'!":iq+ia appcllanl/convkT may gaclously Evrt lll , be sel aslde and the appellant be r' r Bcnch ocquitted of lhe charges kvelled nr**-ifu-I--ffi -n'-iE'ffi i-nu"rr,'

against hlrrl Any other reltel that ts itlsl and propt moy olso groc lo rtt$ b e gronte d.,,

5.Having heard arguments of leamed counsel for the accused/Appellant, leamed counsel for the complainant and leamed A.A.G for the State, record delved deep into with their able assistance.

6.Leamed counsel for the

accused/Appellant referred to 2013 SCMR 180 ,,R'wi Kaour w Slole of and 2010 MLD 937 (Karuchit ,, Imad All vs The Stue,,.

2013 YLR 570 &ahord, thereby prayed for acceptance of the appeal by way of granting pennanent liberty to the convicUAppellant. On other hand, learned counsel for the complainant duly assisted by learned A.A.G placed reliance on 2006 YLR 519 (Lshord "Ghulam Rasool

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,uy'- vs Allah Bakshah Khan", 1995 MLD 1775 f (Peshawad "Taw Khan vs The State and 0) otherc",2009 P Cr. LJ 292 &sracbil! BsLhl Zodt vs The Slate". 2 't scMR 1116 ,a The

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Stde vs Taus Khan and 2 otherc". 1998 SCMR 1778 " Abdur Re.'hman vs lhe Sratet' l{ml (!.E.) llrlb Ir,L. ,& li.br-d &r.taE Xh.

and 2009 SD 371 t' Ghulqm Rreool Shah v,s t?

The . In the light of referred dictums of the Hon'ble superior Courts prayed for utter dismissal of the present appeal.

7.While examining the prosecution witnesses as many as 24 in number amongst them, PW-l Ismail Jan who has appar€nt himself as witness to the brief time period when this accident took place by sighting his presence at the spot. He is close relative ofthe deceased Idress Khan. While narrating the occurenc€ he has perceived tnrck bearing No.

SWAT C-8267, whereby, by the time he was unawane as to who was driving it while it was coming at such a high speed. The ruck hit the motorcyclist Idress Khan and Ubaidullatr and dragged them up to 60 paces. While searching for the evidence to constitute the act of y)Tn Zligence for punishment award of Qatl-i- f, khata by rash and negligent driving where he may gone through either in his examination-in- chief or cross-examination has remained silent that ever the driver was attributing the negligent l1,TTFsr N.rb(s.!.) tl6u. Mr. ,{rL ri.t @dL h 1(t6 r 1!lle tBerrch r.)atZ , Swa(

act to constitute the offence. He while facing the Truck was going towards Matta and only observed the motorcyclist Idress and his companion LJbaidullah to have been there on extreme right side of the road or else were on the left side of the road. The Truck and the motorcycle according to the site plan Ex. PW- lTll have however been shown on the extreme left side of the road where the truck is stated overtaking another truck but the site plan does not ostend the overtaking. This important eyewitness has also admitted that the truck although was over speeding but could not notice with such high speed from any distance.

The relevant part of his cross-examination is reproduced as under:-

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,/cE v t r 16 evl : G al o,l-i ) S c- - Z a,l r- J ) L $ c 7 -f{ Z ? 4 i ) - For proving the offence within the meaning of section 320 PPC the prosecution is required to prove that accused was required to A ) nodb|.lr& lcd.. r,bhDdd E E. Xr..

drive the vehicle and the accued driving the vehicle in a rash and negligent manner. Here there is no one who has seen this accused Truck driver either driving or else at a high speed driving negligently or in a rash manner. Mere driving even a truck with high speed on a highway would not constitute the offence. If besides the language of section 320 ppc judgments of superior Courts are required to be cited. The reported judgment in 1999 s67 ,t Ali altas ys The Slalen -

PLD 1997 Peshawar 3 "Aziz- Khan vs The Srare" are referred to.

t. If statement of PW-l Ismail Jan would further corroborate by all those prosecution wiEresses, prominent witness would be PW-21 LJbaidullah, who was seated on the rear seat of the motorcycle and sustained f I)- multiple injuries. Where identification of the accused/Appellant would require consideration to be the tnrck driver this witness has leamt the name of truck driver as Israr from his grandfather Muhammad Amin. While searching il.rE6(1.t.) tlalL t&. r'd.lh-..iL.li. Ilu A?,?,€S" Ex.lr I',ter Ps't:..1i,,,-: liir I I l.:,i rl Enn:h ,,, ._,jr:.)

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for the evidence to the effect that he could be

the driver Israr the accused/Appellant driving the truck or else all the witnesses of the prosecution including the Investigation Officer have by their surmises and conjectures named him without holding of an identification parade which was utnost necessary. The accused/Appellant was arrested on the following day. He was required to have been produced before Judicial Magistrate for his identification parade. Failure to do so rendered the investigation whimsical. Reference can be had of 2013 1659 ,, i-ud-Dtn vs The Stote"

9 PW Ubaidullah has admitted that the motorcycle belongs to father of the deceased Idress Khan and it was under the use of the deceased Idress for many years stated to have f, a been 4/5 years prior to this accident. It has also come under an admission that the deceased Idress and the injured witness at the time of accident were students of 8th class, where AY'flEi-1iY ordinarily students studying in 8th class are of ch t{.r., (S.4.) rbdu. Mr. l{ri. iaclrdd lL.liE XL! it.

the ages of l3ll4 years. It is to be taken to cast responsibility to shoulder upon father of deceased as to who even prior to reaching age of his son by l3ll4 years had allowed him to ride on motorcycle at busy road as earlier for 5 years when presumed to be of the age of g/9 years. There require sufficient evidence to find the guilt of the accused/Appellant even if he was driving the truck at such high speed when hit motorcyclist of the age of l3ll4 years. The deceased had no authority to ride motorcycle without license. Negligence can be attributed to the deceased Idress himselfmeeting an accident at that time being was rash and negligent to invite his own death for a collision with the truck.

10.The gist of the whole discussion is that the prosecution case is pregnant with g^ O1 doubts. It is settled principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter /l"TEs of right and not of grace. It was observed by E:<anr P".l',,. '1. r',.,rrrt B nch ,l.l .. .., c,,-.

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the apex Court in the case of Tario pervez Y. te 1 I that for giving the benefit of doubt it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.

11.In the above backdrop, absolutely the prosecution failed to prove its case against the accused/Appellant beyond any shadow of doubt; therefore, his conviction cannot be maintained, ergo, while extending the benefit of doubt, this ,l/ appeal is accepted setting aside his d^ conviction and sentences recorded through the impugned judgment by the leamed trial Court and acquit him of the charges .-1,?'trFqr itil(!l.) lldlLt{ rde.X.b.a LrL Xh f i B:'t cl')

Ievelled against him. He is set free forthwith. However since accused- Appellant has already been released on bail by this Court within the meaning of section 426 Cr.P.C, therefore, his sureties are discharged from the liability of bail bonds

Announced. {^ th) Dt 08.11.2017 IADGE

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