' The appellants were convicted under sections 307/149 and 148, P.P.C. By the learned Judicial Magistrate Section 30, Attock, who vide his judgment dated 23-2-1981, sentenced them as under:--
(1) One year R.I. Each under section 148, P.P.C.
(2) Four years' R.I. Each under section 307/149, P.P.C. And a fine of Rs,500 each or in default three months' imprisonment. Half of the fine if recovered was ordered to be paid to the injured P.Ws.
2. Briefly the facts giving rise to the present appeal are that on 29-3-1980, Mansab Khan P.W. Was constructing a room in his Plot No, 174/1/11 in village Darya Sharif. At about 2 p.m. The masons, namely, Shainchi and his son went for Zuhar prayer. Mst. Mubarik Jan (since acquitted) shouted at Mansab Khan from the house that he would be taught a lesson for constructing the house. She called her sons Ijaz, Aftab, and Mushtaq, husband Muhammad Alam and Riasat to kill him regardless of the fear of the police. In the meantime Ijaz appellant armed with a spear, Mushtaq with a revolver and hatchet, Aftab armed with a spear, Muhammad Aslam armed with a sword along with one unidentified person came there. Ijaz and Mushtaq fired two shots each but did not hit him, as he took a cover behind a wall. Aslam appellant gave him a spear blow on the head, Mushtaq appellant gave him a hatchet blow on his head, Riasat appellant gave him a sword blow on his left arm, Aftab and Ijaz appellants inflicted injuries to Riaz P.W. Mushtaq appellant gave stick blows to Karam Elahi, P.W. On the alarm raised by the injured P.Ws. Ghulam Haider and Ahmed Khan witnessed the occurrence.
3. The prosecution in support of its case examined ten witnesses.
4. ' The learned trial Court placing reliance on the ocular evidence as well as the medical evidence, convicted the appellants and sentenced them as indicated above.
5. The learned counsel for the appellants has taken up a legal objection that numerous opportunities were granted to the prosecution to produce its evidence, whereas no opportunity was granted to the defence, which has resulted into miscarriage of justice. Elaborating his point, learned counsel submitted that an application was submitted before the trial Court for summoning the defence witnesses who were army personnel. The trial Court issued summons for their presence in the Court, but it appears from the record that Hay. Maj. Hayat Gul was served, but on the request of the commanding officer, the case was adjourned to another date, as the witness could not be spared on account of personal engagement in duty. Thereafter the trial Court issued summons for his attendance but when that summons could not be served, the trial Magistrate abruptly closed the defence evidence on the ground that it was causing unnecessary delay in the progress of the case.
' The learned counsel submitted that the trial Court had ample powers to procure the attendance of the witnesses through coercive measure as envisaged in Chapter VI of the Code of Criminal Procedure.
5. On the other hand, the learned counsel for the State has contended that as there was delay in the progress of the case, hence the trial Court was justified in closing the defence evidence, it has not caused any prejudice to the appellants and if there is any illegality it is curable under section 537, Cr.P.C.
6. I have given my anxious consideration to the arguments addressed at the Bar and find that in the present case the appellants have been materially prejudiced in their defence and this illegality is not curable under section 537, Cr.P.C. The abrupt closing of the defence of the appellants has left them without the defence which has adversely affected their case. In the circumstances, the proper course for me is to remand this case to the trial Court for afresh decision in accordance with law after procuring the attendance of the defence witness. At the same time I am not oblivious of the fact that the parties have entered into compromise in the meantime which is placed on the record of this case.
7. Keeping in view this new development, I think no useful purpose would be served by remanding the case to the trial Court for retrial as the parties would not be interested in the prosecution of the case against the appellants and no evidence would be brought on record which could sustain the conviction after the remand.
8. In view of this situation, I set aside the order of the trial Court on the ground of gross illegality committed by him by not providing proper opportunity to the defence to adduce its evidence but at the same time refrain from remanding the case to trial Court as the matter relates to the year 1980 and the appellant has undergone the ordeal of protracted trial, it would not be in the interest of justice to order retrial.
9. The upshot of the above discussion is that while accepting the appeal I set aside the conviction and sentence of the appellants and acquit them. The appellants are on bail. They are discharged of their bail bonds.