P L D 1986 Lahore 115 (PLP)

Raja Afrasiab Khan for Appellant. Muhammad Iqbal for the State. Date of hearing : 20tb November, 1985. Nazir Hussain (21) a bus driver, was tried by Mr. Saadat Ali, Judicial Magistrate, Faisalabad (camp at Jaranwala) for the offences under section 304‑A/429/338, P. P. C. On 6‑3‑1983 he convicted the appellant and sentenced him to 5 years' R. 1., 2 year's R. 1. and one year's R. 1. respectively, with a fine of Rs. 10,

000. Half of the fine was ordered to be paid as compensation to. the legal heirs of the deceased and half to the injured witness Muhammad Yaqoob. The convict has come up in appeal.

2. In the afternoon at about 2 p.m. on 7‑8-1982, Suleman and Shahamand were going to their village in a Tonga driven by Muhammad Yaqoob. As they reached near the Glaxy Hosiery Factory , on Jaranwala, Lahore road, suddenly Bus No. 3711/LHB of Koh‑i‑Toor Company coming at a high speed from the side of Lahore collided with the tongs, killed Shahamand and the hors at the spot. Suleman jumped out of tile tongs. Yaqoob, the tonga driver, Suffered a fracture of his left arm and the right leg. Besides the injured, the accident was witnessed by P. W. 6 Nukra and Bhaga. The matter was reported to the police by Suleman. P. W. 9 Sardar Muhammad A. S. I , registered the case and after the necessary investigation, the accused was tried in due course who dented guilt and took up the plea that the faun lay with the tonga driver because the horse became out of control and came in the way. He led no evidence in defence.

3. A perusal of the record shows that the appellant was unrepresented throughout. Trial Court examined nine prosecution witnesses but not a single question was put to anyone of them. In an unrepresented case when an accused pleads not guilty, it is the duty of a trial Court to put questions to witnesses in order to ascertain the truth. It goes without saying that the Court should not assume the role of a defence counsel. Nevertheless, in a case of this kind, Court questions should be put for the just decision of the case. In the instant case, a perusal of the site plan Exh. P. W. 9/0‑would show that the impact took place at point `1' which is located in the north much away from the metalled road. It appears that in all probability, the Reader put down exhibit mark on the site plan and put it aside because had it been marked by the Curt itself. the loca tion of the impact could not have escaped its notice. Be that as it may, the fact remains that bad the trial Court glanced at the site plan, he could have asked the witnesses questions to explain the location of the accident. Since, there has not been proper adjudication. I, therefore, set aside the conviction and sentence of the appellant and remand the case for a trial afresh. Pending re‑trial, Nazeer, accused is allowed bail in the sum of Rs. 10,000 (Rupees ten thousand) with two sureties each in the like amount to the satisfaction of A. C/Duty Magistrate, Jaranwala. The record be sent back to the District Magistrate for entrusting the case to any other Magistrate. M.B.A. Case remanded.