1. RAZA ALI KHAN, J.---This revision petition has been filed against the order dated 21.02.2018, passed by the learned Tehsil Court of Criminal jurisdiction Barnala, whereby evidence of prosecution witnesses Nos. 5 and 6 has been closed.
2. Precise facts of the case are that on the report of Aqeel Aslam, complainant F.I.R. No.43/10 has been registered at Police Station Barnala on 21.03.2010, in offences under sections 3/4 AM. After investigation, police submitted challan before the trial Court on 03.05.2010. The case was at the verge of prosecut ion evidence, on 21.02.2018 the trial Court closed the evidence of prosecution witnesses Nos. 5 and 6 hence, the captioned revision petition.
3. The learned Assistant Advocate General appearing for the petitioner argued that prosecution witnesses Nos.5 and 6 are Govt. servants and the trial Court without adopting the procedure provided by Cr.P.C. for summoning Govt. servants closed the evidence of P.Ws.5 and 6. The learned Advocate further argued that evidence of P.Ws.5 and 6 is necessary to be recorded to prove the case of the prosecution. The learned Advocate contended that the court below erred while passing the impugned order , hence, the same is liable to be set aside.
4. I have heard the learned counsel for the petitioner and gone through the record of the case.
5. A complete procedure is provided in Cr.P.C. for summoning the Government servants for recording evidence. For proper appreciation section 72 of the Code of Criminal Procedure is reproduce as under:- "72. [Service on servants of State or, a statutory body or a company ]. (1) Where the person summoned is in the active service of State or of statutory body or a company , the Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in manner provided by section 69,. and shall return it to the Court under his signature with the- endorsement required by that section.
(2) Such signature shall be evidence of due service."
6. A perusal of above reproduced provision of law makes it clear that proper course for summoning a Govt. servant is to serve the process through respective officers to whom they were subordinate. There is no provision of law which empowers the Court to left the Govt. servants for recording evidence of the prosecution. In case titled State v.
7. Bagh Hussain and another [1980 PCr.LJ 86], while interpreting section 72 Cr.P.C. it has been held that the proper procedure to summon a govt. servants for his attendance before the court to give evidence is through his respective of ficer to whom he was subordinate. The relevant observation is as under: "The proper procedure to serve the process issued by the Court for their attendance before the Court to give evidence was through their respective officers to whom they were subordinate. It seems that nothing of the sort was done by the trial Court while by issuing the process to these witnesses. The Patwari was to be served through the Tehsildar concerned and the S.I. was to be served through the Superintendent of Police of the District concerned. It is also the duty of the Court to summon the witnesses who are the Government employees through the immediate Heads of the Departments concerned as pointed out earlier . This method for service of the process issued by the Court was not followed by trial Court and the prosecution was ordere d to produce these witnesses on their own responsibility . This responsibility , without issue of process of summoning the witnesses, could not be forced upon the prosecution."
8. Sections 90 to 93 Cr.P.C. also provides procedure for summoning Govt. Servants and the courts are empowered to use coercive measures to summon the witnesses. In 'case titled Akhtar Ali and others v. Addl. Sessions Judge and others 1990 PCr.LJ 925 while interpreting sections 90 to 93 Cr.P.C., Lahore High Court Lahore observed as under:- "The main question which has not been attended to by the learned Magistrate as well as by the learned revisional Court is that the two witnesses who are sought to be produced by the complainant party are Government Servants and the best that a complainant can do was done in this case by the petitioner/ complainant. Admittedly , the learned trial Court was requested in time to summon these witnesses and if the learned Magistrate has not been able to procure their attendance, the complainant party cannot be held responsible. It appears that the learned Magistrate failed to utilize effectively the power , to procure the attendance of these two witnesses namely the S.H.O/I.O. and the Patwari vesting in him. Both these witnesses are admittedly material witnesses and before closing the evidence, the learned trial Magistrate was duty bound to use the power of law to have the witnesses summoned."
9. The same view has been taken by the Peshawar High Court in case titled State through Advocate General N. W.
10. F. P v. Nawab Khan 1989 PCr .LJ 1659 and observed as under: "In blaming the prosecution for failure to bring forth the remaining witnesses for examination also the Magistrate seems to have erred. Basically , it may be the duty of the prosecution to adduce evidence to support its case, but where it lists the witnesses it wished to be examined, it becomes the court's duty to secure their attendance. In the process it becomes obligatory for the court to resort to coercive measures as prescribed under sections 90 to 93 of Criminal Procedure Code. Without first exhausting the coercive measures to obtain attendance of the witnesses the Court cannot close the prosecution case."
11. The same proposition came under consideration before the apex Court of Azad Jammu and Kashmir in case titled Muhammad Asif Siddique v. Abdul Hamid and 7 others . The apex Court in para 10 of the repor t observed as under:- "Nothing has been recorded by the trial Court that as to why the service could not be effected upon the prosecution witnesses and why the other coercive measures have not been adopted to procure the attendance of the witnesses. Thus, non-prosecution of the prosecution witnesses cannot be said due to laxity of the complainant, rather the trial Court has proceeded in the matter in perfunctory manner , which shows the non-serious conduct of the Presiding Of ficer to dispose of the case on merits."
12. It is common practice in Azad Jammu and Kashmir that without following procedure provided in Cr.P.C. firstly the attendance of prosecution witnesses is left on the prosecution and on failure to produce witnesses by the prosecution the evidence is closed. Such practice is deviation from the procedure provided by law because the Courts have the powers to utilize coercive and make sure the attendance of prose cution witnesses. In the case in hand, the Court below firstly directed to prosecution to produce P.Ws. 5 and 6 who are employees of Police Department and thereafter closed their evidence. The court below has not adopted the procedure provided to summon Govt. servant, hence, the impugned order is illegal and is violative of law .
13. In view of above, the revision petition is accepted and while setting aside the impugned order dated 21.02.2018, the trial Court is directed to summon prosecution witnesses Nos.5 and 6 by exercising powers conferred on it by sections 72 and 90 to 93 Cr.P.C. It is also desirable that a circular is issued by the Hon'ble Chief Justice by directing the Judicial Officers to summon the prosecution witnesses while implem enting requirements of Sections 72 and 90 to 93 Cr .P.C. so that requirement of law could be fulfilled.