' Saleem Khan a wagon driver, was accused of the offence trader section 304-A, P. P. C. . The case was registered against him on 25-6-1981 at Police Station Khanqah Dogran. Invoking the provisions of section 249-A, Cr. P. C. Mr. Rafique Khan, a local Magistrate of Sheikhupura, acquitted the accused of the charge. The State has come up in appeal.
2. Mst. Zohran and her cousin Naseer both eight years of age, while crossing the road on 25-6-1981 were knocked down by the respondent who was driving the vehicle rashly and negligently. In the accident, Naseer died later in the hospital. Mst. Zohran survived. The case was got registered at Police Station Khanqah Dogran by Noor Muhammad father of Mst. Zohran the same day at about 1.45 p. m The respondent was arrested and sent up for trial. He pleaded not guilty to the charge.
3. Saleem Khan made application under section 249-A, Cr. P. C. Before the trial Court submitting that he had convinced the relations of the deceased that he was not at fault in the accident and that accepting his defence, they had pardoned him. He also filed affidavit of Noor Muhammad informant, duly attested by a Magistrate, in which Noor Muhammad had said that his daughter Mit.
Zohran fell down on hearing the hooter of the vehicle and that he did not wish to proceed with the case as the matter has been amicably settled between him and the accused. There is another affidavit of Ahmad father of the deceased on the same lines alleging that he had pardoned-the driver. This affidavit is attested by an Oath Commissioner. On the basis of the two affidavits, trial Court passed the impugned judgment and acquitted the accused.
4. In this State appeal, it was contended that the offence under section 304-A, P. P. C. Was not a compoundable offence and the trial Court erred in accepting the compromise. There is force in the submission. However, it is also noteworthy that in disposing of the application under section 249-A, Cr. P. C. Trial Court adopted strange procedure. It accepted the affidavit attested by Oath Commissioner which cannot be read as. Evidence in the case. It will be appropriate to mention at this stage that under section 244-A, Cr. P. C. Statement of a witness recorded under section 164, Cr.
P. C. Can be treated as evidence in the case, if it is made in the presence of the accused and if he had notice of it and was given an opportunity to cross-examine the witness. If the witness appears at the trial then the statement recorded under section 164, Cr. P. C. Subject to the provisions of the Evidence Act for all purposes, can be treated as evidence in this case. It is noteworthy that even in accepting the statement recorded under section 164, Cr. P.C., there are conditions laid down in the procedure, but the Criminal Procedure Code does not contemplate to admit in evidence the affidavits attested by an Oath Commissioner. It may, however, be added here that there are only three sections in the Code of Criminal Procedure i. e. Sections 74, 526 and 539-A which permit the use of affidavit but by no stretch of imagination, an affidavit per se can be admitted in evidence without confronting its maker at the trial. Section 249-A, Cr. P. C. Does not empower a Court to adopt its own procedure in deciding a case. This section merely empowers the trial Court to acquit an accused after hearing both sides at any stage of the case provided it considers that the B charge is groundless or that there is no probability of the accused being convicted for which the Court has to give reasons. In the instant case, in the first place there has been a clear violation of the procedure by accepting affidavit attested by Oath Commissioner and by allowing a compromise of the offence under section 304-A, P. P. C. Which is not a compoundable offence.
Even otherwise, Mst. Zohra was the injured person and not her father. Moreover, there is nothing to indicate that Ahmad father of the deceased even appeared before the trial Court, his affidavit that too attested C by the Oath Commissioner could not be the basis of an order under section 249-A, Cr. P. C. This appeal is, therefore, accepted and the impugned order is set aside with the direction to the respondent to appear before the District Magistrate on 10-3-1985, who will in turn entrust the case to a Magistrate of competent jurisdiction Respondent shall continue to remain on bail allowed to him by this Court till the commencement of his trial afresh. Thereafter, it shall be for the trial Court to require him to furnish fresh bail bond if it is inclined to allow him bail.