' ABDUL WAHEED KHAN, J.---The petitioner who is one of the witnesses in a criminal case emanated out of F.I.R. No,934 of 2002 dated 14-12-2002, under sections 324/148/149/109, P.P.C., Police Station, Saddar Kharian, District Gujrat, through the instant petition has called in question order dated 11-10- 2010 passed by Area Magistrate, whereby the prosecution evidence was closed for the reason that it could not produce the witnesses. The said order was assailed through a revision petition before the Sessions Court and vide order dated 21-3-2011, Rai Nazir Ahmad, Addl. Sessions Judge, Kharian, dismissed the same, hence this petition.
2. The contentions of the counsel for the petitioner are that no positive effort was made either by the court or the prosecution for the attendance of the P.Ws. It is added that at the most, the trial court could consign the file or adjourn sine die under section 249, Cr.P.C. And that complainant was not at fault.
3. Conversely the contentions of Mr. Munir Ahmad Bhatti, counsel for the respondents are that the case was registered in the year 2002 and that proceedings could not be made standstill for no fault on the part of the accused persons; that the petitioner is not complainant of the case, therefore, he has no right to file the instant petition and submitted that since the prosecution failed to produce witnesses, therefore, the trial Court was justified in passing the impugned order, which was upheld by the revisional court.
Counsel for the parties have been heard on this point. The instant writ petition is converted into petition under section 561-A, A Cr.P.C, in the interest of justice and is decided as such.
4. Arguments heard. Record perused especially the interim orders appended with this petition. The record reflects that on a number of dates of hearing the accused were not in attendance before the Court and for this reason statements of the P. Ws. Could not be recorded. It further shows that the Judicial Magistrate had been issuing orders for summoning the P.Ws. By issuing non-bailable warrants through DPO, Gujrat, but the same appear to have been passed mechanically without B ascertaining as if service was effected upon the P.Ws. Or not. The trial Court did not verify if the notice/summons or the warrants of arrest of the P.Ws. Were in fact issued and dispatched by its Ahlmad. It also did not make any exercise for entrusting summons to any officer of the police station. There is nothing on the record to show that the trial Court adopted any coercive measures such as attaching the properties of the P.Ws. Under sections 87/88, Cr.P.C. The proper course for the Judicial Magistrate should have been to examine the Process Server and then to take further coercive measures for the attendance of the P.Ws. It is observed that trial Courts are not so helpless that they cannot procure attendance of the P.Ws. Relevant provision of Chapter X of P.P.C.
And so also sections 87 and 88, Cr.P.C. Fully empower a court to adopt coercive measures for the attendance of witnesses and to deal with the process serving agencies which neglect the discharge of the duties for attendance of the witnesses. So for as objection about filing of the present petition by Muhammad Shafi, present petitioner is concerned he is stated to be an injured P.W. In the case and thus he is an affected person. There is nothing in the statute to restrain him for assailing such orders before the higher forum and thus this objection is turned down, as the same is misconceived.
5. For the reasons stated above, this petition is accepted and orders dated 11-10-2010 and 28-10- 2010 passed by Judicial Magistrate and order dated 21-3-2011 passed by Addl. Sessions Judge are set aside being not sustainable. The present petitioner who is one of the injured persons is directed to produce all the private P.Ws. Before the trial Court within a fortnight of the receipt of this order and the trial Court is directed to adopt all possible measures to procure the attendance of P.Ws.
And to conclude the trial positively within one month under intimation to the Deputy Registrar (Judicial) of this Court.
' Before parting with the order, it is deemed appropriate to give., guidelines to the trial Courts, through Member Inspection Team of this Court that if the PWs. Do not appear and process serving agency fails to produce them then before closing prosecution evidence-
(a) The Presiding Officer shall verify if the summons/notices or the warrants of the prosecution witnesses are in fact issued and dispatched by Ahlmad of the Court.
(b) If the government officials, cited as P.Ws. Do not appear before the court, after accepting service through summons/notices, the Presiding Officer may adopt coercive measures such as attachment of salary and also proceed to attach property of the private P.Ws. Under sections 87/88, Cr.P.C. After recording the statement of Process Server.
(c) In case service upon the PWs. Is not effected by the subordinate staff, then the summons/notices or warrants of arrest of P.Ws. May be entrusted to the officers of the rank of A.S.-I.
Or S.-I. Of the Police Station concerned.
(d) If the Process Server is negligent in effecting service upon P.Ws., Presiding Officer may proceed against him under the provisions of Police Order, 2002 and also refer the matter to the District Police Officer concerned for initiating departmental proceedings under Efficiency and Discipline Rules and
(e) The Presiding Officer may also refer the matter to the District and Sessions Judge, for taking upon the matter in the monthly meeting of the Criminal Justice Coordination Committee.