1. RAZA ALI KHAN, J. This revision petition has been filed against the order passed by learned Tehsil Criminal Court.No.II Mirpur , dated 19.01.2019, whereby , the evidence of prosecution witnesses Nos.4 and 5 has been closed.
2. Precise stand of the petitioner is that the prosecution has not been provided sufficient opportunity to produce the witnesses and the procedure provided by law has also not been adopted while passing the impugned order .
3. The learned counsel for the petitioner reiterated the grounds taken in the revision petition and submitted that the Court below passed the impugned order in violation of the law .
4. Mr. Nasir Farooq, the learned Advocate for the respondent No.1 supported the impugned judgment and submitted that the prosecution failed to produce the witnesses despite sufficient opportunities; therefore, the Court below rightly closed the evidence of P .Ws.4 and 5 through the impugned order .
5. The learned AAG appearing for respondent No.2 supported the version of the petitioner/complainant.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. So far P.W.4 is concerned, he has died, hence, the revision petition to his extent has become infructuous, hence, is consigned to record to that extent.
8. Admittedly , P.W.5 is the police official and is in service of the State. The Court below did not summon him through the head of the department, while adopting the procedure enunciated in section 72, Cr.P.C. Section 72, Cr.P.C. deals with the procedure where the person summoned is in the service of the State and provides that the Court shall issue summons ordinarily to the head of the office in which such person is employed. For ready reference, section 72, Cr .P.C. is reproduced 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 of 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." The above reproduced provision of law provides that the person sought to be summoned if is in the active service of the State or of any statutory body then he shall be summoned through head of the office in which he is employed. The superior Courts have held in various judgments that proper course to serve process is that the summons be issued through respective departments and it is illegal to ask the party to produced them on its own responsibility . In this regard I may refer case titled the State v. Bagh Hussain and others reported as (1980 PCr.LJ 86). The relevant observations recorded at page 86 is reproduced as under: "The complainant and the counsel for the respondents were heard and the perusal of the interlocutory orders of the trial Court was also accordingly made. Evidently , Muhammad Azeem, Patwari and Sabir Hussain, S.I. who investigated the case are employees of the Government. The proper procedure to the 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 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 Government employees through the immediate Heads of the Departments concerned as pointed out earlier .
9. This method for service of the process issued by the Court was not followed by the trial Court and the Prosecution was ordered 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. However , the Court could have asked the prosecuting Agency to get the service of the summonses issued by the Court effected through the Officers concerned, otherwise their evidence would be closed by the trial Court."
10. The Court below before passing the impugned order has not applied the procedure provided by law, therefore, while accepting the revision petition, the impugned order is set-aside and the trial, Court is directed to summon P.W.5 through head of the office in which he is employed and if after summon through head of office, he did not appear , then proceed further in accordance with procedure and law .