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Criminal Miscellaneous Application No. Q-361 of 1981, decided on 27th February, 1983.
--- S: 561-A-Penal Code (XLV of 1860), S. 420-Quashment of proceedings--0ne prosecution witness yet to be examined-Exercise of power under S. 561-A, Cr. P. C. declined Trial Court directed to complete case pending against applicant within one month whether remaining witness available or not.
P L D 1962 Kar. 330 ; P L D 1956 Kar. 489 ; P L D ' 970 S C 10 and P L D 1969 Lab. 217 ref.
B. M. Bangash for Appellant.
M. I. Qarni for the State.
Date of hearing : 21st February, 1983.
Applicant above-named has filed the above petition under section 561 Cr. P. C., for quashment of proceedings pending against him under section 420, P. P. C., ]n the Court of S. D. M. Harbour, Karachi (Case No. 826/78), on the facts and grounds mentioned in the memo, of petition.
The learned Advocate for the applicant in support of the above petition submitted as under :-
(a) That Evidence brought on record so far does not support prosecution case against the applicant and such proceedings in question cannot result in conviction of the applicant and as such liable to be quashed. In support of this contention, the learned Advocate for the applicant relied upon cases P L D 1962 Kar. 330 and P L D 1956 Kai. 489.
(b) That neither Caltex nor P. N. O. filed complaint against applicant and as such proceedings cannot be sustained.
(c) That applicant is only owner of truck and was not driving the truck in question and as such cannot be held liable for alleged offence, if committed by his driver. Prosecution failed to even examine driver in Court. In support of above contentions the learned Advocate for the applicant also relied upon cases P L D 1970 S C 10 and P L D 1969 Lab. 217.
Although above matter was called three times, but still no one appeared on behalf of State and as such I proceeded to hear above i.e in absence of State Counsel, as there was no intimation of his absence or any request for adjournment on behalf of the State.
I have carefully considered the above submissions made by the learned Advocate for the applicant and have gone through the statements of P. Ws. so far examined, as well as through orders of learned trial Court passed on applicant's application under section 249-A, Cr. P. C.
It is an admitted position, that only one P. W. remains to be examined and consequently I would not like to exercise powers vested in the Court A under section 561-A, Cr. P. C. at this stage, as for doing so, I will have to go into the merits of the prosecution evidence and substitute my judgment for that of the learned trial Court.
It is true, that.the above case has been pending since 1977 and according to the orders of the learned trial Court passed an application under section 249-A, Cr. P. C., the 4th witness Mr. Qamaruddin is reported to be untraceable. Therefore, while dismissing the above petition, I direct the learned trial Court to complete the pending case against the applicant within & one month from the receipt of the copy of this order, irrespective of the fact whether fourth P. W. Mr. Qamaruddin is made available by the prosecution for recording of his evidence or not and report compliance of this order to this Court forthwith.
Petition rejected.
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