2003 P Cr (PLP)

Zahid Hussain Khan for Petitioner. Ishfaq Ahmad Chaudhry for Respondents Nos. 1, 2 and 10, Nemo for Respondents Nos. 3 to 9 Date of hearing: 6th May, 2002. The necessary facts giving rise to the present writ petition are that the petitioner is the. complainant of case F.I.R. No.183 registered at Police Station Gunjial, District, Khushab on 29-10-1995 for offences under sections 337-A(ii)/337-A(iv)/337-F(i)/337-F(iii)/337-F(v)/ 337-F(vi)/148/149, P.P:C. which case is presently pending trial before the learned Judicial Magistrate, Khushab. A charge has already been framed in this case for the above mentioned penal provisions on 5-3-1996 the statement of Fateh Sher (P.W.1) was- being recorded by the learned trial Court and upon completion of his examination-in-chief an applicati6n was submitted by the present petitioner before the learned trial Court seeking amendment of the charge so that a head under section 324, P.P.C. could also be added to the charge. That application of the petitioner was dismissed by the learned trial Court vide order dated 11-4-1996. The petitioner filed a revision petition against the saga order before the Court of Session, Khushab but his revision petition in that regard also met the same fate and the same was dismissed by the learned Additional Sessions Judge, Khushab vide judgment, dated 30-11-1996. Hence, the present writ petition before this Court.

2. In support of this petition it has been argued by the learned counsel for the petitioner that the statement made by Fateh Sher (P.W.1) before the learned trial Court clearly demonstrated that the accused party had intended to kill the said witness and, thus, on the basis of the said statement of that witness the learned trial Court ought to have amended the charge under section 227, Cr.P.C. According to the learned counsel for the petitioner the said provisions authorized a trial Court to amend a charge at any stage of the trial before passage of the final judgment. In this regard the learned counsel for the petitioner has placed reliance upon the case of Muhammad Mehmood Ali v. The State 1987 PCr.LJ

312. As against the learned counsel for the State has maintained that writ jurisdiction of this Court cannot be treated as appellate or revisional jurisdiction so as to challenge each and every infirmity alleged by a particular party against the proceedings of a trial Court. He has further maintained that both" the learned Courts below were possessed of the requisite jurisdiction and the facts of the present case do not call for any interference by this Court through exercise of extraordinary Constitutional jurisdiction of this Court.

3. After hearing the learned counsel for the petitioner and the learned counsel for the State it has been noticed that in the F.I.R. it had been mentioned by the petitioner that the parties to this case were locked in some dispute over use of irrigation water and the said dispute had prompted the accused party to launch an assault upon the complainant party. According to the F.I.R. for launching the said assault the accuses party had equipped itself with unconventional weapons like Vahalas despite an opportunity to arm itself with deadlier weapons if it had any intention to kill anybody .as a result of the assault. It has further been noticed that in the F.I.R. the petitioner had never mentioned that the" accused party had any intention to kill any person. It is also apparent that during the investigation of this case the petitioner had never insisted that section 324, P.P.C. should also be added to the F.I.R. or to be included in the challan submitted by the police. It was, thus, for the first time through the examination-in-chief of Fateh Sher (P.W.1) that the complainant party had injected in this case an element of an alleges intention to kill on the part of the accused party by introducing another motive pertaining to an earlier murder case and also an attribution of an intention to kill on the part of the accused party. The learned trial Court as well as the revisional Court had attended to all these aspects of the matter and had passed reasoned order and judgment in that regard wherein it had been concluded that apparently introduction of an intention to kill was an afterthought on the part of the complainant party. It is not disputed that the learned' trial Court as well as the learned Additional Sessions Judge, Khushab had the requisite jurisdiction to pass the impugned order and judgment and, therefore, it cannot be said in exercise a of writ jurisdiction that the said order and judgment were without lawful authority.

4. Apart from what has been observed above it is to be appreciated that the examination-in-chief of Fateh Sher (P.W.1) was the first attempt on the part of the complainant party to inject an element of intention to kill on the part of the accused party. That aspect of the matter could have been taken notice of by the learned trial Court for, the purposes of deciding whether to amend the charge or not if the examination-in-chief of Fateh Sher (P.W.1) had amounted to evidence. It had been held by the Honourable Supreme Court of Pakistan in the case of Mr. Yahya Bakhtiar, Advocate v. The State through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 1983 SC 291 that an uncross-examined statement of a witness cannot be termed as evidence. The said law declared by the Honourable Supreme Court was subsequently followed in the cases of Muhammad Ibrahim and another v. Qudratullah Rudhly and another PLD 1986 Lah. 256 and Muhammad Khan v. Haji Ghulam Qadir Brohi and another 1996 PCr.LJ

99. In view of this settled legal position the examination-in-chief of Fateh Sher (P.W.1) surely did not amount to evidence so as to furnish a valid basis to the learned trial Court to proceed with amending the charge on the sole basis thereof. In these circumstances dismissal of the petitioner's application by the learned trial Court in that regard as well as dismissal of the petitioner's revision petition by the learned Additional Sessions Judge, Khushab in that respect have not appeared to this Court to be open to any legitimate exception.

5. For what has been discussed above this petition is hereby dismissed. The parties shall bear their own costs. H.B.T./A-785/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.