2019 PLP 5 (YLRN)

ALI BAIG, J.

Through this criminal revision filed under section 439, Cr.P.C. the petitioner/accused has impugned the order dated 9.7.2018 passed by the learned Additional Session Judge Gilgit whereby the learned trial court has dismissed the application filed under section 265-K, Cr.P.C. by the present petitioner/accused. 2 Brief facts of present case as disclosed in the FIR are that due to rash and negligent driving of the petitioner/ accused his motor car No. Applied for 2017 was collided with the motor bike of the deceased F.C. Abid Hussain. Resultantly Abid Hussain had passed away on the spot and some other persons had sustained injuries. Accordingly a criminal case under sections 279, 320, 337G and 427 was registered against the petitioner/accused vide FIR No 13/2017 at Police Station Danyore.

3. After completion of usual investigation challan was submitted against the accused/petitioner under sections 279, 320, 337-G and 427, P.P.C. in the court of the learned Additional Session Judge, Gilgit under section 173 of the Code of Criminal Procedure. The learned trial court on receipt of challan framed the charge against the accused/ petitioner. To which the accused pleaded not guilty and claimed trial. Accordingly, the learned trial court summoned the P.Ws.

4. The prosecution had cited 8 P.Ws including I.O. in calendar of witnesses of challan/column No. 6 of the challan. The prosecution had examined only two P.Ws. namely Afraz Hussain F.C. who was complainant and Rizwan Ali. In meanwhile the accused/petitioner filed an application under section 265-K, Cr.P.C. in the trial Court. The learned Trial Court after hearing arguments on behalf of both the parties has dismissed the aforesaid application vide the impugned order dated 9.7.2018, hence, this criminal revision petition.

5. The learned counsel appearing on behalf of the petitioner/accused contended that the petitioner/accused is innocent and police have falsely implicated the petitioner in this case. The learned counsel for the petitioner further argued that the deceased was hit by a jeep bearing Registration No. Gilgit A 2483 and driver of said jeep was escaped from the place of occurrence. The complainant has registered/lodged FIR against the present petitioner/accused with mala fide intention. The learned counsel for the petitioner/accused further argued that no eye-witness has witnessed the occurrence and there is no probability of the accused/petitioner being convicted of any offence, therefore, the petitioner/ accused is entitled to be acquitted under section 265.K, Cr.P.C. and the learned trial court has wrongly dismissed the application of the petitioner/accused filed under section 265.K, Cr.P.C.

6. On the other hand the learned Deputy Advocate General supported the impugned order passed by the learned Trial Court by contending that the petitioner/accused is directly nominated in the FIR and his car was also damaged in the occurrence/accident. The learned Dy. Advocate General further argued that the prosecution has cited as many as 8 P.Ws. in the calendar of witnesses of the challan and prosecution has produced only two PWs in the trial court and remaining 6 PWs are yet to be examined. He further argued that the petitioner/accused had filed an application under section 265-K, Cr.P.C. at premature stage and the learned trial court has rightly dismissed the aforesaid application of the accused/ petitioner vide the impugned order dated 09-7-2018, which may be maintained.

7. I have carefully considered the arguments advanced by the learned counsel for the parties and with their able assistance have gone through available record.

8. The record reflects that the accused/petitioner is directly nominated in the FIR and car of the accused/petitioner bearing No. applied for 2017 was found at the place of occurrence in damaged condition. Prosecution has produced/ examined only two PWs in the trial court and remaining 6 PWs are yet to be examined by the trial court.

9. PW- namely Mohsin Khan who is eye-witness of the occurrence has stated in his statement recorded under section 161, Cr.P.C. by the police that the present petitioner was driving rashly and negligently at the time of occurrence and he had hit collided his car with the motor cycle of the deceased and statement of above named PW has yet not been recorded in the trial court.

10. It is settled principle of law that neither the prosecution nor the defence should be deprived of producing its evidence and in the instant case prosecution has yet not produced the material evidence in the court.

11. It is also settled principle of law that trial court has ample powers to acquit the accused/petitioner under section 265-K or 249-A, Cr.P.C. to prevent the rigours of a prolong trial when it is apparent from the record that there is no probability of the accused/petitioner being convict of the charge levelled against him. But the complainant equally deserves fair treatment and justice in this regard and the complainant/prosecution should be given/afforded a fair opportunity to produce its material evidence/witnesses in the trial court.

12. For the reasons stated above, I have found that the impugned order of the trial court is neither perverse nor arbitrary. It does not suffer from any illegality or infirmity, and calls for no interference. The present criminal revision petition being without force is hereby dismissed and the impugned order passes by the learned trial court is maintained. File ZC/195/GB Revision dismissed.