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Criminal Revision No., 687 of 1985, decided on 10th February, 1986.

‑‑‑S. 39‑‑Criminal trial‑‑Magistrate after recording statement of one prosecution witness coming to conclusion that he was not competent to try case and case was entrusted to Special. Magistrate‑‑Nothing pointed out to show that entrustment of case to Special Magistrate was illegal‑ Trial was held by a competent Magistrate who recorded conviction Accused, held, was in no way prejudiced in his trial‑‑Trial of accused found to be legal in circumstances.

‑‑---S. 39‑‑Criminal trial‑‑Accused failing to avail one opportunity of cross‑examining prosecution witness‑‑Application to recall said witness for cross‑examination dismissed by trial Court‑‑Magistrate, held, was not bound to recall witness who was not cross‑examined by accused in spite of getting an opportunity for doing so.‑‑[witness].

‑‑‑S. 39‑‑Criminal Procedure Code (V of 1898), S. 439‑‑Conviction‑ Revision against‑‑Prosecution case was supported by two eye‑witnesses and was accepted by two Courts below‑‑Defence counsel failing to point out any illegality or infirmity in trial or misreading of evidence by Courts below‑‑Revision dismissed as being without merit.

Khizar Abbas Khan for Petitioner.

Date of hearing: 10th February, 1986.

Talib Hussain petitioner Was convicted under section 39 of Electricity Act to suffer two years' R.I. by Senior Special Magistrate WAPDA vide judgment, dated 18‑8‑1385. He went up in appeal which was dismissed by learned Sessions Judge, Jhang vide impugned Judgment, dated 10‑12‑1985. Hence this petition.

2. The facts of the case are that Abdul Haq P.W. 2 on his routine check found that Talib Hussain accused was running his tube‑well directly from the main line without authority. Talib Hussain petitioner was given tube‑well connection but as he aid not pay the electricity bill of Rs.8,500, the electricity connection was disconnected on 3‑9‑1976. On receipt of information, the S. D.O. Electricity on 25‑12‑1976 went to the spot alongwith the raid party which also included police officials. They found that the tube‑well of the accused was running through a direct connection of electricity from the main line. This was ille6al and without authority. He was arrested, challaned and convicted.

2. In support of its case, the prosecution examined S.D.O. Abdur Rahim P.W. 1 who supported the prosecution case. It was stated by him that he went to the spot alongwith the police party. He saw the tube‑well being run illegally from the main line by the accused who was arrested. Line Superintendent Abdul Haq P.W. 2 also supported him. Lineman Wali Muhammad P.W. 3 supported the prosecution case though in cross‑examination he made certain concession, to the accused. Ahmad P.W. 4 did not support the prosecution. A.S.I. Rustam Khan P.W.5 investigated this case and challaned the accused who in his statement under section 342, Cr.P.C. denied the charge and pleaded innocence. He did not produce any evidence in defence.

3. It is contended on behalf of the petitioner that firstly, the statement of S.D.O. Abdur Rahim P.W. 1 was recorded by a Magistrate who then came to the conclusion that he was not competent to try the same. The case was thereafter entrusted to Special Magistrate WAPDA. The precise contention is that the Magistrate had no jurisdiction to transfer the case to the Special Magistrate. The case was sent to the Special Magistrate by a competent authority. The learned counsel has not been able to show as to how the entrustment of case of the Special Magistrate WAPDA was illegal. In any case the trial was held by a competent Magistrate who recorded the conviction. The accused was, in no way, prejudiced in his trial. There is, therefore, no force in this contention.

It was further contended that Abdul Haq P.W. 2 was not cross examined by the petitioner when he was examined during the trial on 5‑5‑1979. An application to recall the said witness was moved which was dismissed by the trial Court. It is contended that the order refusing to recall this witness was illegal. I have considered this point. After the recording of statement of Abdul Haq P.W. 2, the accused was 1 given an opportunity to cross‑examine the witness which was not availed. It was not necessary for the trial Magistrate, therefore, to recall the witness. The prosecution case is supported by Abdur Rahim P.W. 1 and Abdul Haq P. W. 2 who are eye‑witnesses of the occurrence. The prosecution case was accepted by two Courts below. The learned counsel has not been able to point out any illegality or infirmity in the trial or misreading of evidence by the Courts below. There is no merits in this petition which is accordingly dismissed.

H.A.K. Revision petition dismissed.

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