' MAZHAR IQBAL SIDHU, J.---The appellant has assailed the order dated 23-1-2010 passed by the learned Judicial Magistrate Section 30, Attock whereby he acquitted the respondents under section 249-A, Cr.P.C.
' Brief facts of the instant appeal are that the appellant got a case registered vide F.I.R. No,75 dated 9-4-2003 under sections 379, 440, 447 452, P.P.C. Against Khan Afsar son of Qamar Din and Khan Afsar son of Razi Khan at Police Station Hazro District Attock and an occurrence which had befallen on 19-3-2003. The case was investigated and perhaps being averse to the outcome of investigation, appellant chose to institute a private criminal complaint and accordingly on 2-9- 2003 she filed a private criminal complaint under sections 455, 440, 382 and 506 P.P.C. Adopting her version mentioned in the F.I.R. After preliminary codal proceedings respondents were summoned on 20-1-2004 and on the completion of their attendance requisite copies statements of the P. Ws. Under section 241-A, Cr.P.C. Vide Chapter 10 of the Code of Criminal Procedure Code, 1898 were delivered and on 9-3-2004 the respondents were indicted and thereafter, the prosecution was asked to lead its evidence but failed. Then the learned Trial Court on 23-1-2010 closed the prosecution evidence and acquitted the respondents under section 249-A, Cr.P.C.
3. Against the order of acquittal the appellant filed a petition for special leave to appeal under section 417(2), Cr.P.C, leave was granted and the same was converted to appeal vide order of this Court dated 5-5-2010.
4. Learned counsel for the appellant has deftly argued that coercive measures required under the Cr.P.C. Were not adopted by the learned trial Court for summoning the P.Ws. For their examinations and so much so the learned trial Court did not record the statement of the complainant; the same could have been recorded who remained incessantly present during the trial even in absence of the other P.Ws. Learned counsel has further submitted that the learned trial Court has exercised its powers in acquitting the respondents by a slipshod manner and the impugned order being perverse; capricious; arbitrary, unplatable as well as hasty has caused notoriety as well as miscarriage of justice, the instant appeal is liable to be accepted and after its acceptance the case may be remanded to the learned trial Court directing to examine the prosecution witnesses and then record its judgment on merits.
5. Learned D.P.-G. Has been noticed nolo contendere.
6. Learned counsel for the respondents phlegmatically but with reverence has controverted the arguments by maintaining that alleged incident had befallen on 19-3-2003 and by some delay; case was lodged on 9-4-2003 by the appellant; partway investigation the version of the appellant was found false then she instituted a private criminal complaint on 2-9-2003, respondents were summoned by the learned trial Court on 20-1-2004; on the completion of their appearance before the learned trial Court, copies of the statements of the P.Ws. Were supplied to them on 19-2-2004 and were indicted on 9-3-2004; consequently on account of non-availability of the prosecution evidence, the respondents were acquitted by the learned trial Court under section 249-A, Cr.P.C. On 23-1-2010.
' Learned counsel has submitted that the charge against the respondents was framed under sections 379, 440, 447, 34, P.P.C. But in fact no such incident as alleged had ever taken place; that respondents remained in the dock as well as corridors of the courts for a period of five years and ten months but the appellant did not produce even a single witness against them so much so she did not get herself examined as prosecution witness in the case, in the circumstances, the learned trial Court has rightly exercised its jurisdiction under section 249-A, Cr.P.C. In acquitting the respondents by closing down the prosecution evidence. It has been maintained that impugned order does not suffer from any illegality. So far as the non-application of coercive measures for the attendance of the P.Ws. By the learned trial Court is concerned, it has been argued that the appellant remained vigilant and cognizant about the dates of hearing before the learned trial Court; her learned counsel has been incessantly appearing before the court on the dates fixed and there was no hurdle/impediment for her in producing the P.Ws. Learned counsel submits that the respondents have been facing trial in the private complaint case in which primarily the duty lies upon the complainant to produce its P.Ws. But at the same time the court may not be oblivious to the fact that process has to be issued by it but it never means that the complainant can be absolved for the proof of his case through evidence. Learned counsel has further submitted that much ordeal has been endured by the respondents, therefore, instant appeal may be dismissed.
7. Arguments have been heard. Record has been gone through with eagle eyes.
8. Continuumly the details of the happening of the incident and events have been brought on the record by the learned counsel for the respondents, therefore, it has been considered expendable to dilate upon it any more, therefore, moving on further, formal charge was framed in the case on 9- 3-2004; till the day of passage of impugned order of acquittal i.e, on 23-1-2010 the appellant remained fizzled out in producing a single witness before the learned trial Court. She did not examine herself during the said period. Record in this respect reveals that the appellant did not remain sincere in the examination of her P.Ws. Before the learned trial Court. So it appears that purpose of the appellant as being a tormentor was only to drag the respondents incessantly for an indefinite period in courts and nothing else. It is not the requirement of law that the accused shall nuzzle against the floor of courts; respondents remained from dawn to dusk in the corridors of courts for the last about quarter to six years. Technicalities may not be taken as handicaps/hurdles/hindrances in the dispensation of justice but substantially all the circumstances under which the parties entangled in litigation are behaving to promote the cause of justice are also required to be taken notice of by the learned trial Court. At one stage when the case was under investigation perhaps the Investigating Agency-was not prepared to recommend the prosecution of the respondents on account of their innocence. The complainant leaving the police agency behind straightway made a rap at the door of the court for justice by filing a private criminal complaint but after the framing of charge she did not bother to the proceeding of the learned trial Court and on account of languidness of the prosecution towards the conclusion of trial through evidence, learned trial Court ultimately became constraint to invoke its jurisdiction under section 249-A, Cr.P.C. By closure of prosecution evidence. It has been mentioned in the Impugned order as follows:-- "despite passage of six years the complainant neither gave her statement nor examined any P.W.
On a number of dates of hearing it was impressed upon the complainant that she must give evidence. On the last date of hearing i.e, 16-1-2010 the case was adjourned till today for evidence of all the private P.Ws. And it was Announced that otherwise arguments on application under section 249-A, Cr.P.C. Shall be heard. It was also announced that further adjournment shall not be granted.
Today the case has been kept in waiting till 3.45 p.m. The complainant or any witness has not turned up and a clerk of learned counsel for the complainant has dropped an application for adjournment on the ground of ailment of the complainant. There is no proof of ailment, along with this application. Accordingly there is no justification for review of order dated' 16-1-2010. I have heard the learned counsel for the accused and learned ADPP only on the application under section 249-A, Cr.P.C. As the complainant or her counsel is absent. The prosecution evidence is hereby closed. There is no probability of conviction of both the accused as the complainant did not bring any evidence on record. Both of them are acquitted under section 249-A, Cr.P.C.".
So the impugned order has been noticed to have not suffered from any illegality, impropriety and incorrectness. It is legal aphorism that every accused is presumed to be innocent unless and until proved otherwise. It is not the requirement of law that an accused may die seeking justice in the corridors of the courts and the law does not appreciate nuzzling of the parties against the floor of courts for justice. Of course, the courts are custodian of the life and liberty of the subjects of the State and it is well said that law helps the vigilant not the indolent. The respondents remained in the travail of trial for nigh on five years and ten months in a charge which obviously based upon oral assertion. Much water has flown under the bridges since the befalling of incident up to the handing down the impugned order of acquittal and sufficient torment has been suffered from by the respondents. At the maximum, at this stage, the case can be remanded to the learned trial Court to record the prosecution evidence and thereafter to render a judgment but in the particular circumstances of the case it would be a travesty of justice to pass null order, there must be an oriented end of litigation so that the parties may sleep with smooth and peace. The impugned order is neither unplatable, unsavory, invidious and has not caused notoriety. The same is neither illegal nor has caused miscarriage of justice and has been noticed as just, proper and reasonable.
9. The tout-ensemble what has been discussed op-cit is that the instant appeal being devoid of reasons is hereby dismissed and the impugned order dated 23-1-2010 passed by the learned Judicial Magistrate Section 30 Attock under section 249-A, Cr.P.C. Is upheld.