Citing lack of evidence: SC acquits accused of rash driving

ISLAMABAD: The Supreme Court has acquitted an accused of rash driving charges, extending him the benefit of the doubt and ordering his release.

A three-member bench of the apex court, headed by Justice Jamal Khan Mandokhel and comprising Justice Ayesha A. Malik and Justice Malik Shahzad Ahmed Khan, issued detailed reasons for its short order announced on July 4, 2024. By a majority of 2-1, the court acquitted the accused, Syed Fida Hussain Shah, of rash driving charges and ordered his release forthwith, if he is not required to be detained in any other case.

Justice Ayesha A. Malik dissented from the majority decision.

The accused had filed an appeal against the verdict of the Islamabad High Court dated January 17, 2024.

“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 (Prado),” states the detailed judgment authored by Justice Malik Shahzad Ahmed Khan.

The court held that the prosecution also failed to prove through any cogent evidence that the driver of the Prado vehicle was responsible for rash and negligent driving, thus failing to discharge its initial burden to prove the case against the petitioner beyond a shadow of a doubt.

“In light of the above discussion, by a majority of 2:1 (Justice Ayesha A. Malik dissenting), this petition is converted into an appeal and allowed, and the judgments dated September 19, 2022, February 16, 2023, and January 17, 2024, of the learned trial court, appellate court, and high court, respectively, are hereby set aside,” the court declared.

The court acquitted the petitioner of the charges, extending him the benefit of the doubt and directing that he be set at liberty forthwith, if not required to be detained in any other case.

“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,” says the detailed judgment. It adds that there would have been some force in the argument of the 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. However, no such statement was made by the petitioner. Therefore, the ingredients of offences under Sections 320, 427, and 279 PPC are not made out in this case against the petitioner based on his above-mentioned statement, wherein he categorically stated that he took the utmost caution and care and 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.

Justice Ayesha A. Malik, however, in her dissenting note, held that the petitioner, while driving the vehicle in a rash and negligent manner, hit the vehicle of the deceased, causing their death.

“The judgments rendered by all three lower courts, being well reasoned, do not call for interference by this court, and this criminal petition is dismissed and leave refused,” Justice Ayesha A. Malik declared.

Basic facts, as reflected in the First Information Report (FIR) registered by the complainant, Col. Abdul Waheed (PW-1), are that on November 30, 2014, at about 06:30 pm, his brother, Javed Akhtar Qazi, along with his son, Shoaib Akhtar, were returning from Wah Factory to Rawalpindi via Kashmir Highway, Islamabad, in their Suzuki Mehran bearing registration No. IDN/8363.

The said car stopped at the red-light signal on Kashmir Highway near the Police Line when a rashly-driven Land Cruiser bearing registration No. BD/6750 hit their vehicle from the back, causing both to receive fatal injuries. The complainant reached the Emergency Ward of Pakistan Institute of Medical Sciences (PIMS) Hospital, where the injured were shifted to Shifa International Hospital, where they died on December 4, 2014, and December 16, 2014.

The petitioner faced trial before the Judicial Magistrate Section 30, Islamabad (West) and was convicted and sentenced as follows: U/s 279 of the Pakistan Penal Code, 1860 (PPC), imprisonment for eight months with a fine of Rs3,000 or 10 days simple imprisonment in the event of default; U/s 427 of the PPC, imprisonment for one year with a fine of Rs100,000 or 15 days simple imprisonment in the event of default; and U/s 320 of the PPC, imprisonment for two years with payment of Diyat of Rs4,318,524 for each deceased (total amounting to Rs. 8,637,048), and in case of non-payment of Diyat, he shall be treated under subsection (2) of Section 331 of the PPC and shall remain in lockup till payment of Diyat. The sentences were ordered to run concurrently with the benefit of Section 382-B of the Code of Criminal Procedure, 1898 (CrPC).

The petitioner challenged this decision before the Additional Sessions Judge (West), Islamabad, which was maintained vide judgment dated February 16, 2023.

The petitioner filed a criminal revision against the said judgment before the Islamabad High Court, which too was dismissed vide the impugned judgment dated January 17, 2024.

Justice Ayesha A. Malik held that the opinion of the majority also questions the sanctity of the FIR based on a delay of five days in its lodging and the non-disclosure of witnesses therein.

“However, in my view, the matter was reported to the police promptly because Report No. 50 was recorded at 11:10 pm on the same night by Muhammad Yousaf, S.I. (PW-5); according to the said PW, on November 30, 2014, at 6:30 pm, he was present at Ramna Police Station when he received information about the accident; the police station is situated at a distance of 1 and ½ kilometres from the place of accident,” Justice Ayesha A. Malik held.

Given these facts, Justice Ayesha held that the argument that the matter was reported with a delay of five days is irrelevant, as the police report clearly states that the accident took place due to the negligence of the driver of vehicle No. BD/6750, being the petitioner.

Similarly, insofar as the non-mentioning of witnesses’ names in the FIR, she found that the said report is the first prosecution document that records the presence of Javed Akhtar (PW-2) and Khan Khawas Khan, Traffic Sergeant (PW-4), as witnesses to the accident.

The relevance of the police report is contained in Rule 22.48 of the Police Rules, which directs that the daily diary shall be maintained under Article 167 of the Police Order, 2002; it shall be in Form 22.48(1) and shall be maintained digitally as well as in two copies in the same uniform process; one shall remain in the police station in the shape of a register and the other shall be dispatched to a Gazetted Officer to be designated by the Superintendent of Police or the Superintendent of Police himself every day at the hours fixed in this behalf,” Justice Ayesha held.

Justice Ayesha noted that the daily diary is intended to be a complete record of all events that take place at the police station; it records not only the movements and activities of all police officers but also visits of outsiders, whether official or non-official, coming or brought to the police station for any purpose whatsoever. Therefore, the veracity of report no. 50 and its contents cannot be overlooked to arrive at a just conclusion.