ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Appeal No.288 of 2019

For hearing of case.

SHO Nadeem Ahmed & SIP Imam Bux, A/SIO P.S Baldia Karachi.

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NAZAR AKBAR, J.- This Criminal Appeal is directed against the

judgment dated 17.04.2019 passed in Sessions Case No.1227/2016

arising out of FIR No.62/2016 under Sections 320/427 PPC

registered at P.S Baldia Town, Karachi, whereby the Xth Additional

Sessions Judge, West Karachi, has convicted the appellant under

Section 323 of Qisas and Diayat Ordinance and did not find the

ingredients of Section 320/427 PPC in the prosecution case. The

2. Learned Additional P.G has contended that the trial Court has

taken an uncalled for lenient view against the appellant while

exonerating the appellant from the charges under Section 320 PPC

despite clear evidence on record for inflicting the punishment of

TAAZIR. With the help of learned Additional Prosecutor General,

Sindh I have gone through the record. While contesting the findings

of trial Court to drop charges under Section 320 PPC, she has

drawn attention of Court towards following observations of learned

3. It is strange that despite the above discussion of evidence and

answering point No.2 in affirmative the learned Judge in discussion

on point No.3 has failed to convict the appellant under Section 320

PPC and contrary to his own findings on point No.2, he declared:-

And the learned Judge has convicted him only under Section 322

bail on 30.5.2019 has absconded from this Court and, therefore,

after taking action against the surety for production of the appellant,

the surety was forfeited and the I.O was directed to produce the

appellant. On his failure, the SSP Investigation was called to explain

the circumstances in which the appellant could not be arrested by

produce the vehicle in Court on 25.06.2020. He did not produce the

vehicle unless police took its custody. Then this case has been fixed

for hearing on 26.6.2020, 27.6.2020, 01.7.2020 and 02.07.2020.

The last order dated 02.07.2020 contains many facts showing the

conduct of Mohammad Saleem Shahzad, the absconding appellant,

Owner of the vehicle Malik Dad Khan is also present in person.

Ms. Seema Zaidi, Additional P.G, Sindh.

Rao Aslam, SSP Investigation, District West a/w

SIP Abdul Ghaffar, I.O of the case.

Learned SSP states that he has obtained the vehicle

involved in the accident which is lying at main gate of this

Court. The vehicle should be in the custody of the Nazir of

this Court pending this appeal because the

appellant/accused who has been convicted for an offence

under Section 320 PPC has been driving this vehicle and

the record shows that the convicted accused is being

protected by the owner of the vehicle.

The record shows the absconding appellant was released

on bail on 30.5.2019 and after his release on bail he

only Rs.50,000/- and therefore, the surety also did not

bother to produce him and allowed the surety to be

The record further shows that the appellant has been

produced by the owner of the vehicle before the police

with the help of brother of the appellant. The owner of the

vehicle namely Malik Dad Khan is smart man he refused

to appear in trial Court to record his evidence despite the

fact that he was also mushir of arrest of the appellant. He

dodged police or managed with process server to report to

the trial Court that he is not in Karachi and his

whereabouts are not traceable. The impugned order

to obey Court order. The report of the learned SSP

submitted on the last date of hearing shows that his son

has informed the police that owner of vehicle is not in

Karachi. Today again he is saying that he has gone out of

Karachi though the CDR which is available on record

reflects his location in Karachi during this period. His son

is also smarter enough, he has committed to the police to

produce his father within two days. On the appointed

time, when he came to the Police Station he tried to stage

a drama that he was being illegally detained by the police.

brother of the appellant/accused but he is not ready to

Nazir of this Court until the absconding appellant is

make sure that the original driving licence of the

fresh verification on the next date of hearing.

Adjourned for 04.07.2020 at 11:30 am as suggested by

the SSP for production of absconding accused.

real brother of the appellant namely Bashir Ahmed. It may be

mentioned here that during the trial prosecution has relied on a

report dated 30.08.2016 from the Incharge Driving Licence Branch,

Khairpur wherein driving licence of the appellant was verified as

genuine. Such report was produced as Ex.7/G available in the R&Ps.

bogus verification report regarding his driving licence, therefore, SSP

Investigation present in Court is directed to ensure a comprehensive

inquiry through the competent authority into the circumstances in

which a fake licence was initially issued from Driving Licence Branch,

Khairpur and then it was protected by sending verification report

today in compliance of the above order and same is returned to the

concerned police officer for again depositing it in the malkhana.

6. The order dated 02.07.2020 was passed in presence of the

owner of the vehicle involved in the accident and his lawyer but today

both are absent. Be that as it may, since it has come on record that

the vehicle involved in the accident was driven by the appellant on a

fake and bogus licence, the SSP Investigation present in Court has

licence or in other words who was driving the vehicle without licence.

In this context the prosecution may take guidance from a judgment

of this Court in the case of Atta Muhammad vs. The State reported in

2005 P.Cr.L.J 1648 Karachi wherein the Hon'ble Mr. Justice

Rahmat Hussain Jafferi (as he then was) has observed that in the

terms of Section 107 PPC and his case would fall under Section

114 PPC. The relevant observations from para-7, 11 and 14 to 17

from the said judgment are reproduced below:-

7. Under section 3 of the Motor Vehicles Ordinance, 1965

ceased to be effective then his driving of public service

transport vehicle became unlawful, therefore, his case

would fall within the definition of unlawful as mentioned in

section 321, P.P.C. Thus, the applicant appears to have

committed an offence punishable under section 322, P.P.C.

14. It will be noticed that the offences of accidents are

increasing day by day and particularly from the hands of

drivers, who ply transport vehicles: If the person is holding a

valid licence and due to accident the offence is committed

committed.

15. In order to curb the driving of a person who does not

hold the licence or an effective licence the Ordinance, 1965,

has made the owner or person incharge of a motor

vehicle responsible by directing such persons that they

should not permit such drivers to drive the vehicle in

public place. The said provision is available in section 5 of

the Ordinance, 1965, which reads as under:-

16. From the facts of the case it appears that owner of the

applicant to drive the vehicle in contravention of section 3 of

the Ordinance, 1965, as the applicant was not holding

effective driving licence to drive the bus at public place,

therefore, it appears `that the owner has abetted the crime

as defined in section 107, P.P.C. which reads as under:--

category of section 107, P.P.C. therefore, the owner or

person in charge of vehicle is also equally responsible for

the offence committed by the applicant and his case

would fall under section 114, P.P.C.