JUDGMENT IJAZ AHMAD CHAUDHRY, J-- Through this appeal under Section 417(2A), Cr.P.C, the appellant has challenged the impugned judgment dated 28.2.2004 passed by the learned Civil Judge/Judicial Magistrate Section 30, Depalpur whereby he has acquitted respondents Nos. 1 to 3 while accepting their application moved u/S. 249-A, Cr.P.C.
2. The brief facts of the case are that on the statement of the appellant Muhammad Sadiq case F.I.R. No. 237, dated 24.5.1998 was registered at P.S. Saddar Depalpur District Okara under Sections 324/337-H(ii), 37- A(1)/148/149, PPC. After the completion of the investigation report under Section 173, Cr.P.C, was submitted and the accused were summoned to face the trial. The accused did not appear and they remained absent till 30.9.1999 when Barkat Ali and Ashraf appeared and then Shaukat Ashraf and Muhammad Asghar used to appear in the Court but Anwar was absent.
Warrants of arrest of Muhammad Anwar were issued on numerous times and he appeared in the Court on 3.6.2003. Then copies of the documents were supplied and case was adjourned for framing of charges. Anwar accused again became absent and his warrants of arrest were issued and he appeared in the Court on 6.2.2003 and charge was framed on 14.6.2003 but the witnesses did not appear in spite of that warrants of arrest were issued and the respondents were acquitted under Section 249, Cr.P.C, by the learned Magistrate Section 30 through the impugned judgment.
4. Today neither appellant nor his counsel turned up to prosecute this appeal in spite of that the case has been called repeatedly. As it is an admitted case hence it is decided on merits after perusal of the record.
5. Learned counsel for the respondents contends that the case was registered in the year 1998 and the accused/respondents had been facing the agony of the trial since 1998 but the witnesses did not appear in the Court on numerous dates and as such the learned Trial Court has rightly acquitted the respondents-accused as they could not be bound to face the trial for indefinite period if the witnesses are not ready to make statements in the Court.
6. With the assistance of the learned counsel for the respondents I have perused the order sheet, which shows that the delay in the disposal of the case was not attributable to the prosecution alone. The accused remained absent and Anwar accused had entered appearance on 3.6.2003 for the first time and copies were supplied. The charge was framed on 14.6.2003 and the case was adjourned for prosecution evidence on 19.7.2003 and then on 2.10.2003. On the said date the case had been transferred and on 7.11.2003 the accused were summoned for 15.11.2003. On the said date the accused were present but the witnesses were not present, who were summoned and the case was adjourned for 20.12.2003. On the said date Anwar accused became absent and then the case was adjourned for 24.1.2004. On the said date warrants of arrest of the witnesses were issued and the case was adjourned to 28.2.2004. On the said date the impugned order has been passed through which the respondents have been acquitted under Section 249-A, Cr.P.C.
7. From the perusal of the order sheet it is clear that only three opportunities were afforded to the prosecution to produce the evidence the remaining period was consumed by the learned Trial Court in sending warrants of arrest to the accused. Hence the delay was not solely attributable to the prosecution, but it was mainly due to the absence of the accused specially due to non- appearance of the accused Anwar. Even otherwise the learned trial Court has not taken into consideration at the time of passing the impugned order of acquittal the role played by the accused and also did not bother to take necessary measures for the attendance of the witnesses by summoning the SHO and by writing down the DPO about the non-service of the witnesses by the police officials. The learned Trial Magistrate has passed the impugned order in a mechanical manner which is not sustainable in the eyes of law.
8. For the foregoing reasons, this appeal is accepted, the impugned order is set aside and the case is remanded to the learned Trial Magistrate for decision afresh after conducting the trial in accordance with law. The respondents are directed to appear before the Trial Court on 24.10.2005.
They are directed to furnish surety bond in the sum of Rs. 50,000/- each with two sureties each in the like amount to the satisfaction of the learned Trial Court. The process shall be issued for the summoning of the witnesses by the learned Magistrate Section 30, Depalpur and he shall ensure the conclusion of the trial within three months from the said date. He can pass appropriate orders and even will not hesitate in summoning the high-ups of police to apprise about the conduct of subordinate staff in the service of Court processes.