This is an application under section 561-A, Cr. P. C. Praying for quashment of proceedings of a case under section 304-A, p, p. C. Pending against the petitioner in the Court of II Additional City Magistrate, Karachi. This petition was admitted to regular hearing by my learned brother Imdadally H. Agha, J. On 20-3-72; and on 3-4-72 my learned brother had while confirming the order of interim stay of proceedings in the trial Court called for the record and proceedings in the case. My learned brother had also ordered that the matter should be fixed for hearing within three months of the date of the order i.e. By 3-7-72.
2. Alongwith the petition, the learned Advocate for the petitioner had filed certified copies of the depositions of all the witnesses recorded by the trial Court and had raised a ground that no case for charge had been made out against the petitioner on the evidence that had come on record.
The learned Advocate for the appellant also filed a certified copy of an application made on behalf of the applicant before the trial Court on 24-7-71 wherein he had prayed that the applicant should be discharged because the evidence recorded in the case made out no prima facie case. On this application the trial Court passed an order to the following effect: - "To be heard on the next date of hearing at the request of the applicant, Notice to P. S. I. For this."
Thereafter no order was passed on this application, but a charge was framed on 9-2-72 viz. After more than six months.
After the making of application praying for the discharge of the applicant, only one. Witness was examined in the trial Court and that witness was S. I. P. Muhammad Shat, the Investigat--ing Officer, who on his own showing had not witnessed the incident, nor did he give any evidence directly or indirectly connecting the applicant with the commission of this crime.
3. At the time of hearing, Mr. Manzoor Hussain the learned counsel for the State had taken me through the entire prosecution evidence and had candidly conceded that on the evidence available on record, the framing of the charge was not justified because no case had been made out against the applicant. He, however, contended that the remedy under section 561-A, Cr. P. C: was not an alternative or additional remedy because section 561-A, Cr. P. C. Deals only with inherent powers of the High Court which Powers have been preserved only "in interest of justice" to redress such grievance for which no other procedure is available or provided by the Criminal Procedure Code. Mr. Manzoor Hussain's contention as far as I have been able to follow -is that when a venue for redress is provided by the Criminal Procedure Code, section 561-A could not be invoked. These contentions of Mr. Manzoor Hussain were based on the judgment of the Supreme Court in the case of Ghulam Muhammad v. Mozamal Khan and others (PLD 1967 SC 317),
4. While respectfully agreeing with the judgment of their Lordships of the Supreme Court, I am of the view that the said judgment does not help the learned State Counsel. In that case their Lordships- have observed as follows: - "The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of Criminal Procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face of the evidence even if believed, does not disclose any offence."
5. It would, therefore, be clear that if the evidence on the record does not disclose any offence, the proceedings could be quashed. In this case since the entire record was before me and I have been taken through the same for the purpose or evaluating the evidence against the applicant, I am of the view that I would be failing in the exercise of my jurisdiction if I did not exercise powers, under section 561-A, Cr. P. C. In the alternative, jurisdiction under section 439, Cr..P. C. Is also available because the record was in this Court and the same has been examined by me. What is more, the trial Court in spite of an application being- made before it under section 253 (2), Cr. P. C. Did not find it fit to pass any order thereon or even to consider the same. In the light of these principles, I am of the view that in the circumstances of this case, since the evidence on record did not make out any case for charge against the applicant. I would be justified in evaluating and considering the evidence recorded im this case.
6. The four witnesses who were examined in the trial Court as eye-witnesses were Iqbal Karim (P. W.
2), Mrs. Noor Jahan Khalil (P. W. 3), Mazhar Hussain (P. W. 4) and Absar Ahmed (P. W. 5). The evidence of these witnesses is to the effect that the applicant was driving a van in North Nazim-- abad, a locality of Karachi, on 9-11-1970 at about 11 or 12 o'clock in the day. The van, driven by the applicant took a turn to the right and a scooter which was being driven by the deceased came and struck the right side of the van. It seems that after the impact, the scooter swerved and hit against the wall. The deceased Tahmeed, who was driving the scooter suffered five injuries, three of which were abraded contusions and the remaining two were simple abrasions. The injuries resulted in death of deceased Tahmeed.
7. P. W. Iqbal Karim had stated that the scooter had passed along the right side of the van and since there was no road onwards for the scooter, it struck. s wall and rebounded. He further stated that the scooter driver received injuries because he had dashed against a wall and the applicant accused was driving at a speed of 5 or 10 miles per hour. He further stated that the deceased scooter driver was trying to overtake the van from its right side when the van itself was taking a turn to the right.
Mrs. Noor Johan Khalil had stated that she heard some sound of dashing and then saw one scooter driver fallen on the ground a little ahead of the van. She had also stated that the impact could have been avoided if the scooter had attempted to turn his vehicle from the left side of the van which statement In effect implies that the deceased was turning to overtake the van from the right side when the van itself was turning to the right.
P. W. Mazhar Hussain stated that the van took a turn towards right side and the scooter went straight and collided with the van and thereafter the scooter hit the wall and the deceased received injuries.
8. P. W. Absar Ahmed, however, gave an entirely different version by saying that the van driven by the applicant took a turn to the left and the scooter hit the van and struck to the wall.
Each one of these four eye-witnesses has also said that applicant accused was not rash or negligent and that the incident took place because the scooter driver was at fault and that he was driving very fast. It is also in evidence that the petitioner had put on indicator lights.
9. On analysing the evidence of these four eye-witnesses, the position that emerges is that the van driven by the applicant .Was turning to the right and the deceased was driving the scooter very fast and wanted to overtake the van and in so doing his scooter struck against the right side of the van of the applicant and thereafter rebounded and struck against a wall. Further to that it is absolutely evident that the van was being driven by the applicant at very moderate speed (5 to 10 miles per hour) and that is also total absence of any such circumstance from which an inference of rashness or negligence on the part of the applicant could be drawn. In fact all witnesses have unanimously stated that it was the scooter that came and struck the van of the applicant. This is further proved by the certificate issued by Motor Vehicle Inspector, Karachi, who examined the impact. The Motor Vehicle Inspector found that the damage to the van was on the front right side whereas the scooter had been damaged at the headlights. This circumstance also indicates that it was the scooter that came and struck against the van.
10. The rest of the evidence in this case consisted of medical evidence furnished by Mr. Raza Soomro who has only spoken with regard to injuries on the person of the deceased. P. W. Ghulam Ali is only a Mashir of inquest. The remaining two witnesses S. H. O. Raza Mohammad Ayub and S. I.
P. Mohammad Shaffi were concerned only with the investigation. The diary of the trial Court shows that all the prosecution evidence had been recorded and no prosecution witnesses remained to be examined.
11. Under these circumstances, since I have examined the entire record I am of the view that no case for charge was made out and I quash the proceedings pending against the applicant in the trial Court.