Muhammad Munir Farukbe, J.--This State appeal under section 417, Cr. P. C. lias been addressed against the order dated 17th January 1966 of Malik Bashir Ahmad, then Magistrate Section 30, Toba Tek Singh, acquitting the four respondents of the charge under section 307/34, P. P. C. without recording complete evidence in this case.
2. The respondents are alleged to have waylaid Sardar Muhammad (P. W. 3) and made a murderous assault on him in furtherance of their common intention while armed with deadly weapons like gandasi, takwa and dangs at chahwela on 18th January 1965, causing no less than 19 injuries on his person including the two on the head which were declared dangerous to life by the doctor. Noor Muhammad, a brother of the injured person lodged the report of this occurrence at 11- 30 a.m. on the same day at Police Station Gojra naming Ali Ahmad and Ibrahim as eye-witnesses.
17. transpired that the relevant file had not been received in the Court so the case was adjourned to next day, but due to the short adjournment the file was not available again and the case was re- adjourned to 12th November 1965, when the new Magistrate directed the issuance of the process for the remaining witnesses for 17th November 1965. On this date the summons issued in the name of the prosecution witnesses were not returned to the Court, so the case was adjourned to 3rd December 1965. During this period the case was transferred to the present Magistrate who fixed the case for further evidence on 23rd December 1965, when he was away on tour and the case had to be adjourned to next day. On 24th December 1965 the present Magistrate again fixed the case for evidence on 8th January 1966 when the summons of only one prosecution witness was received unserved in the Court, while the summons in respect of the other prosecution witnesses were not returned, so the case was finally adjourned to 14th January 1966 with a direction that no further opportunity would be given for the production of prosecution witnesses. On this adjourned date none of the remaining prosecution witnesses appeared and the learned Magistrate dosed the prosecution evidence posting the case to the next day for orders in the matter when he framed the above charges against the respondents and after recording their statements under section 342, Cr. p. C. he also took down the evidence of two defence witnesses produced by them on the same day and the case was adjourned to 17th January 1966 resulting in an order of acquittal which has been assailed before us on the ground that no proper opportunity had been afforded to the prosecution to adduce their evidence in this case.
4. The above resume of the daily order sheet would disclose that the prosecution had produced three material witnesses on 5th July 1965, the very first date fixed in the case for recording the evidence. The case was then adjourned for one and a half months as the Magistrate was to proceed on a month long leave. It was, however, transferred to another Court in the meanwhile.
This was followed by 8 more adjournments necessitated by the absence of the Presiding Officer or his transfer and the consequence of shuttling of the file itself from one Court to another on that score. The remaining five dates were vested as the summons issued for service on the prosecution witnesses were never received back to show if any of them had been served or evaded service. It might be due to lack of interest on the part of the process-serving agency or any mechination by the other party. Learned Magistrate had never thought of taking any action against the process- serving agency or deputing any special foot-constable for service of the summons with a direction that he would appear in Court to explain the reasons for his inability to effect service on them. He should have apprised the S. P. of this unhappy state of affairs prevailing in his department that none of the summons issued- from his Court on all the dates had been served or returned unserved with the report of the concerned official about it so that he could look into the matter and inform him of the action taken against the defaulter if any. He should have rather sent a set of summons to him with a direction for service through any specially deputed official on last opportunity given by him for the production of the remaining prosecution witnesses, so that he could get a correct report about their attitude before drawing any presumption against them. In the absence of any such report about the remaining prosecution witnesses it could never be presumed that either of them had deliberately evaded service or appearance after being served with the summons issued from his Court. Learned Magistrate was, therefore, wrong in closing the case without satisfying himself that the prosecution witnesses had at all been contacted for effecting service of the summons on them and informed of the date of hearing fixed in the case.
S. In the present case the trial Magistrate had not only failed to take this legal precaution but also omitted to have recourse to the coercive measures prescribed in sections 90, 91, 92 and 93 of the Criminal Procedure Code for obtaining the attendance of the witnesses. This short circuiting of the entire procedure had deprived him of the benefit of the testimony of the two independent witnesses named in quite a promptly lodged report as persons acquainted with the facts of the case and that of the Police Officials who had investigated the same. Their evidence was essential in arriving at a correct decision especially when the meagre evidence already brought on record had disclosed a case for a charge under section 307/34, P. P. C. against the respondents. In this background it could not be successfully urged that he had complied with the mandatory provisions of section 252 (2) of the Criminal Procedure Code. If he had?applied his mind to this evidence before taking this drastic step, he might have elected to frame the charges without closing the prosecution evidence and then proceeding under the provisions of section 256, Cr. P. C. to summon the remaining prosecution witnesses over whom the private complainant had no control. This Court has been laying much stress on the words "shall" and "all" occurring in section 256, Cr. P. C. as non-compliance with these mandatory provisions would vitiate the trial. The State v. Barkat Ali and others (1), K. B. Choudhry Ghulam Ahmad v. G. L. Wintelay (2) and Abdul Latif v. The State and others (3) are some of the authorities on this point. This abrupt closure of the prosecu tion evidence had, therefore, resulted in grave miscarriage of justice in this case.
6. It is no doubt correct that the persons accused of an offence have a legal right to demand "speedy justice" in their case but not at the cost of injustice to other party as the Courts are to keep the scales of justice even for both the parties. The wanton disregard of the imperative provisions of the Code for a "speedy disposal" of the case would render the trial a nullity in the eye of law. The file was received in the Court of this leamed Magistrate on 12th November 1965, and he closed the prosecution evidence on 14th January 1966, i.e. within a short period of two [18] months only, although it was not a very old case at all as the challan was put in C6urt on the 6th of May 1965. He could certainly have given further opportunity to the prosecution to produce the remaining evidence which, as stated above, was essential for a just decision of the case and involved no risk of violating the discretion vested in him under section 344 of the Criminal Procedure Code. The Prosecution was thus denied reasonable opportunity to complete their evidence. This indecent haste had rendered it a mockery of a trial rather than justice and fair play.
7. We have deliberately avoided to go into the merits of the case in view of the order we propose to make in this appeal and the leamed counsel for the respondents has rightly avoided to take us through the record for that matter. The only contention raised by him was that it was not appropriate to set aside the order of acquittal earned by the respondent six years ago but this appeal having been filed within the period of limitation this point has no force. Merely on account of inordinate delay in the disposal of tbis appeal, we cannot drop this matter specially when we have come to the conclusion that the Magistrate concerned had passed a patently erroneous order resulting in grave miscarriage of justice in this case as was observed by their Lordships of the Supreme Court in Abdullah v. Muhammad All and others (1). The Magistrate concerned would have been well advised to ascertain if the summons issued from his Court had been served upon the remaining witnesses before he passed the impugned order.
8. For the foregoing reasons we have no option but to set aside the acquittal of the respondents and remand this case for a fresh trial by some competent Magistrate in accordance with law. .
(l) PLD 1971 SC 541