This appeal under Section 417 (2A), Cr.P.C. is directed against order dated 24-01-2015 passed by the learned Magistrate Section-30, Mailsi, whereby Respondents No, 2 to 8 were acquitted in case FIR No, 117/2011 dated 14-03-2011 registered at Police Station City Mailsi, District Vehari, for offences under Sections 452/324/448/K1/337.- L(ii)/148/ 149, PPC.
2. Brief facts of the case are that the Appellant lodged FIR No, 117/2011, supra, stating that he was a resident of Baba Nathay Shah Road, Mailsi. On 13-03-2011 at about 4:00 p.m., Respondents No, 2 to 22 and their co-accused while armed with different weapons trespassed into his house and launched a murderous assault at him and six members of his family who were present with him. As a result, they all were injured. The accused party also took away cash amounting to Rs, 70,000/- and three Nokia mobile sets from the house, The occurrence was witnessed by Malik Rasheed Ahmad, Islam Din and other people from the vicinity who were attracted to the site. The police investigated the matter and submitted report under Section 173, Cr.P.C. On 27-9-2011 the learned Magistrate indicted only Respondents No, 2 to 22. They pleaded not guilty and claimed trial.
Consequent thereupon, the prosecution was directed to produce evidence to prove the charge qua them. On 13-02-2014, the Appellant got his examination-in-chief recorded and filed an application for summoning the remaining accused. However, vide order dated 09-072014, the learned trial Court dismissed the said application against which the Appellant preferred a revision petition in the Sessions Court, Mailsi, that is still pending. On 13-01-2015. Respondents No, 2 to 22 moved an application under Section 249-A, Cr.P.C. contending that the prosecution could not produce evidence to prove the charge despite several opportunities. In the meanwhile, the Appellant filed a private complaint in the same Court in which his partial cursory evidence was recorded. On 24-01-2015, the learned Magistrate accepted the aforesaid application under Section 249-A, Cr.P.C. and acquitted Respondents No, 2 to 22. Hence, this appeal.
3. The learned counsel for the Appellant contended that the impugned order was arbitrary and perverse. There was no occasion for the learned Magistrate to invoke Section 249-A, Cr.P.C. The learned trial Court had not examined the process server so it was not established that the police officials and other public functionaries cited as prosecution witnesses were duly served. As regards the private witnesses, some of them attended the Court on various dates of hearing but their evidence was not recorded due to delaying tactics adopted by the accused-respondents. Even on the day when the impugned order was passed the Appellant was present in the Court alongwith PW Muhammad Aslam. The learned counsel maintained that sufficient incriminating evidence was available against Respondents No, 2 to 22 so the case be remanded to the learned trial Court for decision on merits in accordance with law.
4. On the other hand, the learned counsel for Respondents No, 2 to 22 controverted the above contentions. He argued that Respondents No, 2 to 22 were indicted on 27-09-2011 whereafter the learned Magistrate summoned the prosecution evidence. During a period of 31/4 years it produced only one witness, i,e, the Appellant/ Complainant, out of a total of twenty. The Court even issued coercive process to procure their attendance but without fruition. In the circumstances, the learned trial Court was justified in acquitting Respondents No, 2 to 22. He prayed that his appeal be dismissed.
5. The learned Deputy Prosecutor General has supported this Appeal.
6. Arguments heard. Record perused.
7. According to the prosecution, the alleged occurrence took place on 13-03-2011. The police investigated the matter and submitted report under Section 173, Cr.P.C. It was on 27-09-2011 that the learned Magistrate indicted Respondents No, 2 to 22. They denied the charge whereupon the prosecution was required to produce evidence but it failed to do so even after a lapse of 31/4 years.
Consequent upon this continuous default the learned Magistrate invoked Section 249-A, Cr.P.C. to acquit Respondents No, 2 to 22. The question that arises for the determination of this Court is whether on the facts and in the circumstances of the case the impugned action was justified.
8. In all cases it is the duty of the Presiding Officer, firstly, to satisfy whether the summons have been issued to the witnesses. If they are returned unserved he should see the endorsement of the process-server. If the circumstances so warrant, he should also adopt coercive measures to procure their attendance. Secondly, where service is not effected despite repeated issue of process, the Presiding Officer should examine the process-server to ensure that there is no omission or neglect on the part of the police. In the instant case, the learned Magistrate did not examine the process server as mentioned above. As such, it was not established that the process was duly issued and served on the witnesses.
9. Perusal of the record reveals that the examination-in-chief of the Appellant was recorded on 13- 02-2014. However, Respondents No, 2 to 22 did not cross-examine him till the impugned order was passed on 24-01-2015. This was despite the fact that he was present in the Court and available for cross-examination on various dates of hearing. This is not all. Apart from him some of the other witnesses also appeared before the Court on certain dates. Even on the day when the impugned order was passed the petitioner was present alongwith PW Muhammad Aslam which is 'established from the complaint filed by the petitioner which is available on record. In the circumstances, I am inclined to hold that the learned Magistrate was not justified by any canon of justice or equity to pass the impugned order.
10. Law favours the disposal of cases on merits. In "Asif Iqbal v. District and Sessions Judge, Khushab and others" (2011 SCM R 720), the Hon'ble Supreme Court of Pakistan held that it is in the interest of justice that both the parties be provided opportunity to prove their versions by providing evidence.
11. In view of what has been discussed above, this appeal is allowed and the impugned order dated 24-01-2015 is set aside. The case is remanded to the learned trial Court for rehearing in accordance with law.