1983 P Cr (PLP)

This is a revision petition by Jahangir Mahmood, petitioner, for the quashment of the judgment of the learned Sessions Judge, Attock, dated 5th October, 1982, accepting the appeal of Farman Baidar, respondent No. 2, setting aside the judgment of the learned trial Magistrate dated 27th April, 1982 and ordering the retrial of both the petitioner and respondent No. 2 under various sections of the West Pakistan Motor Vehicles Ordi nance, 1965 (hereinafter called "the Ordinance") and the Pakistan Penal Code.

2. The brief facts of the case are, that Farman Baidar, respondent No. 2, was found guilty by the Judicial Magistrate, Attock, under sec tion 304-A, .P. P. C. for causing the deaths of Zia-ul-Haq and Rashid, deceased, through rash and negligent driving for which he was sentenced to four years' R. I. with fine of Rs. 5,000 or, in default of payment of fine, to suffer further six months' simple imprisonment. Out of the fine, if Rs. 4,000 was ordered to be paid to the heirs of both the deceased. Farman Baidar, respondent No. 2, then preferred an appeal against his conviction and sentence before the Sessions Judge, Attock, who, by his impugned judgment, held that as Jahangir Mahmood, the present peti tioner, who was the Managing Director of the company which owned the truck driven by respondent No. 2, had permitted the said respondent who was eighteen years of age and had no driving licence to drive the same, the petitioner should have also been tried with respondent No.

2. In this view of the matter, the learned Sessions Judge accepted the appeal set aside the conviction and sentence of respondent No. 2 and remanded the case for retrial of the said respondent alongwith the petitioner, with a direction that the trial Magistrate should try the petitioner also for the abetment of offences under section 304-A, P. P. C. and section. 99 of the Ordinance, besides the offence under section 112 of the Ordinance, for violating the provisions of sections 3 and 4 (1) (iv) of the Ordinance. Being aggrieved by the said judgment, the petitioner has preferred the present revision, which is now before me for disposal.

3. I have heard the arguments of the learned counsel for the peti tioner, respondent No. 2 and the State and have also perused the record. The case against respondent No. 2 initially was under section 304-A, P.P.C. for rash and negligent driving on the particular day of accident and causing the deaths of Zia-ul-Haq and Rashid, deceased. Since there is no evidence that Jahangir, petitioner, was sitting in the said truck and urging or egging respondent No. 2 to drive rashly or negligently or that he had otherwise at some other place instructed him to do s, it cannot be said that there is any prima facie evidence to show that' the petitioner abetted any offence under section 304-A, P. P. C. or under section 99 of the Ordinance. May be that the petitioner may be liable for the violation of the provisions of sections 3 and 4 (1) (iv) of the Ordinance, for which a prosecution is available under section 112 of the same, but the petitioner would have to be separately tried in respect of the said section. In the absence of any evidence to show that the petitioner is liable for the abetment of the offence under section 304-A, P. P. C. or section 99 of the Ordinance, hp-trial under section 112 of the Ordinance will have to be separate. The present coupling of the petitioner with respondent No. 2 in respect of the offences stated, in which neither the petitioner is an abetto nor one who can be stated to have committed the same with respondent No. 2 in the course of the same transaction, would vitiate the trial on the ground pf misjoinder of charges. The learned Sessions Judge, Attock, has legally erred by directing the trial of respondent No. 2 with the peti tioner, with the directions as submitted above. The judgment of the learned Sessions Judge is illegal in the extreme and deserves to be set aside. He should have- decided the appeal of respondent No. 2, which he has not done. 4 For the foregoing reasons, this revision petition is accepted and the judgment of the learned Sessions Judge, Attock, dated 5th October, 1982 is set aside, The appeal of Farman Baidar, respondent No. 2, is remanded back -to the learned Sessions Judge. Attock for decision afresh. Since the D learned Sessions Judge has partly expressed his mind in the said case, he shall entrust the appeal to some Additional Sessions Judge for decision. Farman Baidar, respondent No. 2 shall appear before the Session's Judge. Attock, on 15th of May, 1983.

5. Nothing herein contained shall prevent the Appellate Judge, if he so considers-fit, to order the separate prosecution of the petitioner for violation of any of the provisions of the Ordinance. Petition accepted