' The facts giving rise to this Constitution petition, briefly stated, are that on the complaint of the petitioner a case under sections 379, 411, P.P.C. Read with section 14 of Offences against Property (Enforcement of Hudood) Ordinance VI of 1979 was registered against respondents Nos.3 and 4.
The police after investigation submitted the challan before the Resident Magistrate, Renala Khurd District Okara. The trial dragged on as much time was taken by the complainant party to produce its evidence. The entire evidence has now been recorded except the statements of Patwari and the Investigating Officer. The Resident Magistrate on 12-6-1988 closed the evidence of prosecution observing that the warrants of arrest issued for the appearance of these two witnesses have neither been returned to the Court nor the Assistant District Attorney has been able to give any reasonable cause for non-production of these witnesses. He further observed that many opportunities have been given to the complainant to produce its evidence but till date the complainant has not been able to complete its evidence and as such the evidence is closed as the accused cannot be left at the mercy of the complainant party. This order, dated 12-6-1988 was challenged in revision before the learned Additional Sessions Judge by filing a revision petition but the same was dismissed vide order, dated 10-12-1988 observing that the prosecution has failed to produce its evidence in spite of repeated adjournments, and that the learned lower Court was fully justified in closing the evidence. This led to the filing of the present constitution petition.
2. I have heard the learned counsel for the petitioner/complainant as well as the respondents/accused. Learned counsel for the respondents submitted that interference in exercise of Constitutional jurisdiction at interlocutory stage is not warranted as alternate adequate remedy is available to the petitioner in case the final order to be passed by the trial Court goes against him.
He added that in case the accused party is acquitted by the learned Magistrate, the petitioner can challenge the order of closure of evidence along with the order of acquittal by invoking revision jurisdiction. The learned counsel did not press this plea further when asked as to whether the provisional Court, in the presence of the order, dated 10-12-1988 passed in revision jurisdiction, will be able to interfere in the same order at later stage in exercise of the same provisional jurisdiction.
3. The main question which has not been attended to by the learned Magistrate as well as by the learned provisional 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 petit ioner/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 utilise 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. The Superintendent of Police, Okara was though requested to have the process of Court served but action according to law was not initiated either against the Superintendent of Police or the witnesses who are Government servants on account of nonappearance in Court. The learned Magistrate faced with this situation should have acted resolutely and promptly by reporting the said failure to the higher authorities including the High Court for initiating proper legal action. A party cannot be made to suffer on account of default or non-action of either the Court or the Government functionaries. In challan cases, it is for the State, in other words for the Magistrate to procure the attendance of the witnesses especially the Police Officers and the other Government servants. The failure of the Magistrate in procuring their attendance shows either his incompetence or ignorance of the law on the subject. The Sessions Judges as well as District Magistrates will be well-advised to take corrective measures whereever, trial Courts, civil or criminal are not being given proper assistance by the police or the administration. In the instant case, miscarriage of justice is apparent. Had the learned Magistrate exercised the power vesting in him under law to procure the attendance of witnesses, the witnesses would have appeared before him. The failure of the Magistrate to procure the attendance of material witnesses as has caused serious prejudice to the case of the complainant, a case of interference in exercise of Constitutional jurisdiction is clearly made out. The order, dated 10-12-1988 of the C learned Additional Sessions Judge and order, dated 12-6-1988 of the Resident Magistrate are, therefore, quashed. The learned Magistrate is directed to procure the attendance of S.H.O. And the Patwari, the two witnesses and then to dispose of the case in accordance with law.
Fresh process will issue to them with direction to the Superintendent of Police, Okara to ensure the availability of these two witnesses on the date of hearing. The Superintendent of Police, Okara will be personally responsible for producing these witnesses on the date of hearing. In case of non- compliance of the direction, the Magistrate will report the matter to this Court for appropriate action against the Superintendent of Police as well as the aforesaid two witnesses. The writ petition thus succeeds and is hereby accepted with no order as to cost.