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Criminal Petition for Leave to Appeal No. 8‑R of 1984, decided on 28th March, 1984.

(On appeal from the judgment and order of the Peshawar High Court, dated 7‑3‑1984 in Criminal Revision No. 3 of 1981.)

Art. 185(3)‑Penal Code (XLV of 1860), S. 279/338 ‑ Causing grievous hurt by rash driving‑Contentions raised found to have been given due consideration by two Courts below‑Allegation of denial of opportunity of cross‑examining witnesses found to be untenable on basis of record‑Findings of High Court‑Held, unexceptionable‑Leave to appeal refused.

‑ S. 439‑Revision‑Observation of High Court that although peti tioner could not claim as a right to recall all or some witnesses, trial Court might resummon all or any of witnesses for evidence if deemed necessary for disposal of case‑Held, sufficient safeguard against any miscarriage of justice.‑[Witness].

Mushtaq Ali Tahirkheli, Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 27th March, 1984.

Criminal Revision Application of the petitioner calling in question the order of the EAC‑IV/MIC Abbottabad, dated 10‑1‑1984 having been dismissed by the Peshawar High Court Circuit Bench, Abbottabad, as per impugned judgment, dated 7‑3‑1984, this petition for special leave to appeal has been brought to challenge the said judgment.

The petitioner was facing trial for offences under section 279/338, P. P. C. before the S. D. M., Abbottabad. The charge in the case having been earlier framed, the case was set down for the recording of the evidence and the prosecution witnesses were summoned for 30‑10‑1983. On the said date eight prosecution witnesses were present and examined and the rest were summoned for 31‑10‑1983. An application was made on 31‑10‑1983 by Mr. Lughmani, learned counsel for petitioner for sumnoning the witnesses already examined in the case for the purpose of cross- examination. Such request was not granted by the learned trial Court with the observation that the accused had already been given full opportunity of cross‑examination. The petitioner on 10‑11‑1983 moved the Sessions Court for the transfer of the case to any other Court of competent jurisdiction on ground that he bad strong apprehension that he would not receive complete justice from the trial Court. One of the grounds raised in the transfer application was that he was not given proper opportunity of cross‑examining the witnesses. The learned Sessions Judge after perusal of the record of the trial Court found that in fact the petitioner had cross‑examined one of the witnesses on 30‑10‑1983 and although he was given opportunity to cross -examine the other witnesses he had not chosen to do so. It was also found to be incorrect that the counsel of the petitioner was present on 30‑10‑1983 and had withdrawn from the case since his request for adjourment was refused. This was not indicated from the order sheet of the trial Court. However, the case was transferred by the learned Sessions Judge and entrusted to EAC‑1V/MIC Abbottabad as per his order, dated 2‑1‑1.984 in order to remove the doubt entertained by the petitioner. After the transfer of the case the petitioner again made a request for the recall of the witnesses although no appeal or revision was filed by him against the earlier order of refusal passed by the trial Court in this behalf. The application was dismissed by the EAC‑IV on 16‑1‑1984, and the revision application of the petitioner against the said order was also dismissed as per impugned judgment.

We heard the learned counsel for the petitioner and have gone through the impugned judgment of the High Court as well as the order of the learned trial Court, dated 16‑1‑1984. The contentions raised on behalf of the petitioner were given due consideration by the learned two Courts and the allegation that he was denied the opportunity of cross‑examining the witnesses was found to be untenable on the basis of the record. We are therefore, satisfied that the petitioner was not denied the opportunity of cross‑examining the witnesses. If the opportunity furnished to the petitioner was not availed of by him as a matter of his own choice the trial Court could not be blamed for the same. The findings of the learned High Court, in the circumstances, are unexceptionable.

The learned High Court while dismissing the revision application has observed that although the petitioner cannot claim as a right to recall of all or some of the witnesses, the trial Court may, if it deems necessary for the disposal of the case, resummon all or any of the witnesses for evidence. These observations, in our view, are sufficient safeguard against an miscarriage of justice and surely due notice of the same will be taken by the learned trial Court at an appropriate time.

We find no substance in the petition which is dismissed.

S. Q. Appeal dismissed.

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