1989 P Cr (PLP)

Respondent in person. Date of hearing: 20th May, 1989. This is a State appeal directed against the order of Mr. Sufaid Shah M.I.C. Kohat, dated 4‑8‑1982 by which he acquitted the accused‑respondent of the charge of causing death by negligent driving under section 249‑A, Cr.P.C.

2. The case arose as a result of report of father of the deceased wherein he just conveyed information about the incident, without naming the accused. However, the vehicle allegedly was stopped enroute on advance information supplied to police and the respondent apprehended as being responsible for the incident and brought for trial before the Court. The proceedings later commenced during which the Court attempted to secure attendance of the witnesses, but ultimately acquitted the respondent after examining only some of the cited witnesses. It observed that despite several opportunities allowed the prosecution had failed to produce the remaining witnesses while those already examined had been unable to establish that the respondent was driving the car which ran over the deceased. In so finding, it briefly touched on the evidence, among others, of P.W. Toti who happened to see the incident. It was observed that this witness did not know the respondent previously and was not made at the trial to identify him. His evidence accordingly was regarded as unsatisfactory. About the other witnesses it was observed that they had not seen the incident.

3. It appears that the evidence of P.W. Toti has not been properly appreciated. True, he did not know the accused, having not seen him before, but he had asserted that he was at the wheel of the speeding car which struck down the deceased. He had also claimed to have chased the vehicle alongwith one other person who also noted the number of the vehicle and that one Zahid was also present and had seen the incident when it occurred.

4. A fair reading of P.W. Toti's testimony will leave no scope for any doubt to be raised in regard to identity of the accused‑respondent. It is categoric on the point, clearly indicating that he had seen him, he having asserted that the car was being driven by the accused present in Court rashly. It is not clear how the Magistrate has been able to ignore this statement.

5. In blaming the prosecution for failure to bring forth the remaining witnesses for examination also the Magistrate seems to have erred. Basically it may be the duty of the prosecution to adduce evidence to support its case, but where it lists the witnesses it wished to be examined, it becomes the Court's duty to secure their attendance. In the process it becomes obligatory for the Court to resort to coercive measures as prescribed under sections 90 to 93 of the Criminal Procedure Code. Without first exhausting the coercive measures to obtain attendance of the witnesses the Court cannot close the prosecution case. Reference 1972 P Cr. L J 1001.

6. The perusal of the memorandum of the daily orders reveals that though summons/warrants were directed to be issued against the witnesses, yet what happened to them, whether they were served or not, or were returned to the Court, there is no mention therein. One of the witnesses left unexamined, namely, Zahid, in addition to P.W. Toti had also seen the incident. Whether any summons/warrant was sent to enforce his attendance is not clear from the record. Like P.W. Toti, he was a material witness and at least to get him in Court for evidence serious efforts should have been made. It is apparent thus that the Court did not conduct the proceedings with that solemnity and thoroughness as the same deserved. Accordingly, the case appears to require retrial to be decided afresh, after due effort on the part of the Court to secure attendance of all material witnesses. As such, I accept the appeal, set aside the order of learned trial Magistrate and direct that the accused‑respondent be retried. S.A./768/P Retrial ordered.