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Criminal Revision No. 86 of 1979, decided on 10th May 1980.

‑‑‑ S. 439 read with S. 249‑A‑‑Revision (criminal)‑‑Exercise of powers under S. 439, Cr. P. C., scope of‑‑Trial Magistrate examining only one of injured persons, who turned hostile and not examining injured petitioner besides several other prosecution witnesses, and acquitting accused persons by invoking provisions of S. 249‑A, Cr. P. C.‑ Order, held, bad on facts as also in law‑Trial, however, having hanging fire for last 5 years since commission of offence and at least 68 adjournments allowed by trial Court‑‑Nothing certain even a full fledg ed trial resulting in conviction‑Re‑trial declined, in circumstances.

Abdur Rehman Khan assisted by Munir Khan for Petitioner.

Khalilur Rehman for Respondents Nos. 1 and 2.

Amirzada Khan, Asstt. A.‑G. for the State.

Date of hearing : 28th April 1980.

The two respondents, namely, Arbab Ghalib Hussain and Khalilur Rehman were challaned to the Court of Magistrate First Class exercising powers under section 30, Cr. P. C. In the beginning the trial proceeded in accordance with the procedure laid down for the trial of warrant cases and a number of witnesses was examined. Subsequently when the Law Reforms Ordinance (XII of 1972) came into force a formal charge against the two respondents was framed to which they pleaded not guilty. Thereafter one of the witnesses, namely, Jamroze Khan, was put in the witness‑box by the prosecution but he did not support the prosecution story. He did not name the respondents as culprits and stated that some unidentified persons who had come with muffled faces fired at him and Mir Zaman. The witness was declared hostile and the prosecutor cross‑examined him. The learned Magistrate, from the testimony of this witness, found that the matter had been compromised and that the witness Jamroze Khan having resiled from his earlier stand, the case of the prosecution had become doubtful. On this finding he recorded an order of acquittal under section 249‑A, Cr. P. C. on 13‑5‑1979. This order has been challenged in revision by Mir Zaman under section 439, Cr. P. C.

2. The prosecution case, as mentioned in the First Information Report lodged to the A. S. L, on duty, on 29‑12‑1974 at 11‑30 a.m. in the Lady Reading Hospital, Peshawar where he had been taken in an injured condition, was that on the same day half an hour earlier Mir Zaman along with Jamroze Khan was sitting in the fuel wood shop of one Shamroz Khan outside Lahori Gate, Peshawar City, when the two respondents came there armed with pistol and '303 bore rifle and indiscriminately fired at both of them as a result of which they were injured. The occurrence was said to have been seen besides the injured persons, by Khani Zaman, Tai Muhammad, Said Habib Muhammad Jan and lmroze. The motive for the offence was also given in the First Information Report:

3. The charge against both the respondents was under section 307/34, P. P. C. The learned Magistrate examined only one of the injured persons who became hostile and was permitted to be cross‑examined by the prosecution. He did not care to examine Mir Zaman, petitioner who was also injured and in fact it was he who made the report. Besides, there were several other witnesses whose testimony was yet to be recorded. The order of the Magistrate in acquitting the ‑accused under section 249‑A, Cr. P. C., was, therefore manifestly wrong. That section provides that the Magistrate may acquit an accused person at any stage before completing the evidence if, after hearing the prosecutor and the accused, he considers that the charge is groundless or that there is no probability of the accused being convicted of the offence. The order of the learned Magistrate does not show that the prosecution was heard in the matter. In any case there is nothing in the order to show that the prosecutor resisted or supported the proposed order of acquittal. It is strange that the prosecutor having full knowledge that Mir Zaman, the present petitioner, who was the complainant in the case and was also an injured witness, had not been examined and that his examination would be very material, did not impress upon the Magistrate to examine some of the other witnesses also before making up his mind if the provisions of section 249‑A, Cr. P. C. could be invoked. Again the record shows that there was a prayer by Mir Zaman to the District Magistrate for filing an appeal under section 417, Cr. P. C. by the Provincial Government but the prayer was turned down by repeating the reasons which bad been recorded by the trial Magistrate without making any independent examination of the case.

4. The learned trial Magistrate in failing to examine the material witnesses has committed irregularity of procedure which goes to the very root of the trial and obviously there has been a miscarriage of justice. Ordinarily, in these circumstances, therefore, a retrial was called for. However, a direction for retrial by the High Court under section 439, Cr. P. C. is not be lightly ordered; for the jurisdiction in this respect is discretionary and bas to be exercised in exceptional cases in view of the fact that the Government has a right of appeal under section 417, Cr. P. C. The record of the case shows that where as the offence was committed on 29‑12‑1974 the respondents were acquitted on 13‑5‑1979 about four and a half years after the commission of offence. There had been several hearings in the case. The order‑sheet is kept in a haphazard manner but I have been able to count 67 adjournment which took place after the respondents, who were originally absconding, surrendered for trial. For some period they remained in custody but subsequently one after the other they were enlarged on bail. In exercising the powers under section 439, Cr. P. C. for retrial the Court has to consider not only the facts of the case but has also to bear in mind the harassment the accused had already gone through, the time that has elapsed between the commission of the offence and the date of order of retrial, the expenditure incurred in defence by the accused persons and the circumstances of the case itself. The present is an unfortu nate case. More than five years have already elapsed since the commission of the offence. The respondents must have incurred sufficient expenditure in defending themselves. The harassment of numerous adjournments must have taxed them to a large extent. Besides that it was brought to my notice that even Mir Zaman, petitioner, in his statement before the Court recorded before the framing of charge in accordance with the unamended provisions of law, had said that the culprits at the time of occurrence had muffled their faces. Though the other witnesses who had been examined did not say so nevertheless it is not certain that after trial a conviction shall be recorded. In these circumstances, therefore, though the impugned order is bad on facts as also in law, I am not inclined to exercise the discretion as under section 439, Cr. P. C. for ordering a retrial of the respondents.

Petition rejected

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