' FAZAL ELAHI KHAN, J.--- This is an appeal under section 417, Cr.P.C. By the State through Advocate- General against the order dated 21-71986, passed by Magistrate 1st Class, D.I. Khan, whereby the accused-respondents were acquitted of the charge under section 307/34, P.P.C. In exercise of the powers under section 249-A, Cr.P.C.
2. It was on 20-5-1981, at 6-00 a.m. That Ghulam Qasim son of Attar Khan resident of Mubarak Shah, in injured condition lodged a report before Inayatullah A.S.I. Wherein it was stated that at the time of occurrence he alongwith Ghulam Qasim son of Atta Muhammad (P.W.2) were proceeding from their village to D.I. Khan City on their respective cycles. On reaching the place known as Jallar of Muhammad Shafi, Mohajir, he noticed Saida Mir son of Ghulam Hussain and Abdul Latif son of I- iaji Allah Bakhsh, accused-respondents approaching on a cycle. Accused Abdul Latif took out a pistol of .12 bore from his Bada and fired at him. He was hit on his back and fell down from the cycle.
The accused then reloaded the pistol and fired a second shot but it missed him. Both the accused then decamped from the spot on their cycle. Ghulam Qasim Bhatti P.W. Took the injured to the hospital where he lodged a report which was reduced into a Murasila Exh.P.A./1 by Inayatullah A.S.I.
(P.W.), it was read over to the complainant who after admitting it correct thumb-impressed the same. Motive for the offence was stated to be previous blood feud between the parties.
' The Murasila was sent to the police station for registration of the case which was incorporated in F.I.R. Exh.PA. By Ghulam Yasin A.S.I. (P.W.). Thereafter the Investigating Officer prepared the injury sheet of the complainant and referred him to the doctor for medical treatment. He then proceeded to the spot and prepared the site plan Exh.P.C. At the instance of P.W. Ghulam Qasim Bhatti. He recovered from the spot an empty shell of .12 bore Exh.P.I. Which was taken into possession vide memo. Exh.P.E. And packed the same into a parcel. He took into possession blood-stained shirt Exh.P.2. Belonging to the complainant, having cut marks. Abdul Latif accused after his arrest led the Investigating Officer to the spot and pointed out the place where he had thrown the pistol. On his pointation the pistol Exh.P.I. Was recovered and taken into possession in the presence of the marginal witnesses. After completion of the investigation the file was handed over to Sher Zaman S.H.O., who submitted challan against the accused in the Court of Illaqa Magistrate.
3. The prosecution in support of its case examined Ghulam Qasim, the complainant, Ghulam Qasim Bhatti P.W., Muhammad Ishaq, Ghulam Yasin A.S.I., Dr. Hayatullah, Inayatullah A.S.I., Sher Zaman S.H.O. And Muhammad ' Ramzan Muharrir. Muhammad Ishaq P.W. Who had witnessed the potation memo. And the recovery of crime pistol was declared hostile. Rest of the witnesses were yet to be examined when the Prosecuting Sub-Inspector made an application on 6-2-1986 under section 540, Cr.P.C. To recall some of the prosecution witnesses and for summoning of certain other witnesses necessary from the prosecution point of view. The trial Magistrate deemed it necessary to hear arguments of the learned counsel for the parties on the application. He, therefore, adjourned the case to 21-7- 1986 for arguments on the application and issued summons against Ghulam Muhammad P.W.
However, after hearing arguments on the application, the learned trial Magistrate passed the impugned order of acquittal under section 249-A, Cr.P.C.
4. The grievance of the learned Assistant Advocate-General in the appeal is that apart from direct ocular evidence furnished by the complainant and supported by the statement of Ghulam Qasim Bhatti, there was other sufficient corroborative evidence connecting the accused with the commission of the offence. That the prosecution case was fully supported by the medical evidence, recoveries from the spot, the recovery of the pistol from the spot at the potation of the accused and the report of the Arms Expert. That the so-called hostile witness has fully supported the recovery of eye pistol at the instance of the accused in his examination-in-chief. His further grievance is that the trial Magistrate did not hear the parties on merits of the case. For these reasons, it was argued, the order was passed in utter disregard of the law.
' On the other side the learned counsel appearing for the accused referred to the statement of the complainant and that of Ghulam Qasim Bhatti, in order to show, that his statement is contradicted by the medical evidence. Reference was also made to the statement of Muhammad Ishaq, witness to the recovery memo. Whereby the crime pistol was allegedly recovered at the instance of Abdul Latif accused and other circumstantial evidence to justify the order of acquittal. The learned counsel also read out various order-sheets and pointed out that trial of the accused was delayed by the lapses of the prosecution and urged that remand of the case after years of the trial would be harsh. Reliance was placed on State v. Muhammad Saleh PLD 1980 Kar. 131 and an unpublished judgment of this Court Division Bench in State v. Allah Wasaya Criminal Appeal No,27 of 1984, decided on 6-12-1988.
5. After hearing the learned counsel for the parties and going through the evidence, with their help, and the relevant law cited we have formed our view that the case needs to be remanded and for that reason we would not like to go into the merits of the case. Section 249-A, Cr.P.C. Relevant for the present is reproduced as under:-- 'Power of Magistrate to acquit accused at any stage... Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to he recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence."
From the bare reading of the above provision of law it is abundantly clear that before invoking section 249-A, Cr.P.C. The trial Court has to hear both the parties on merits of the case and has also, after appraisal of the evidence in the case, if recorded, and other material available on the file, to reach to the conclusion that conviction cannot be secured of the accused facing trial on that material.
' As far as the first point is concerned it is evident from the relevant order-sheet dated 6-2-1986 that an application was moved by the P.S.I. Under section 540, Cr.P.C. To recall some of the witnesses already examined so that certain documents placed on file may be exhibited and also to summon an additional witness (a doctor) whose evidence was stated to be necessary for arriving at a just decision. On this application the case was adjourned to 27-2-1986 as under:- {{URDU TEXT}} Needless to say that several adjournments were made for one reason or the other but lastly the case was fixed for hearing arguments on the application on 21-7-1986 and it was further ordered that Ghulam Muhammad, the remaining P.W. Was also to be summoned through a letter to be sent to the S.P. On the date of hearing though it is not clear whether the P.W. Was present or not the arguments were heard and instead of accepting or rejecting the application the impugned order of acquittal was passed. In this view of the matter, there is force in the argument of the learned counsel for the appellant that the prosecution was not heard on merits of the case as required under the law. We also feel on our tentative assessment of the evidence that prima facie it was not a case which would have warranted the acquittal of the accused without examining him and without hearing the parties on merits of the case.
6. The arguments of the learned counsel for the accused-respondents in the light of the judgment on which he has placed reliance that the trial having been delayed for sufficient long time remand of the case would amount to abuse of the process of Court of law has no substance on facts and circumstances of the case. No doubt 'the trial of the accused has taken a long period which we condemned but this delay was not solely due to prosecution agency. No doubt the learned trial Magistrate has made several orders for summoning of the witnesses and has also directed to inform the S.P. Of non-service of the summonses issued against the witnesses but no such summons or copies of the letters are available on the record. There is nothing to show that these orders were complied with by the lower staff. The learned Magistrate also did not take any trouble to persue the matter and to appraise himself of the facts whether summonses and letters were actually issued and served on the witnesses and if not what further steps were to be taken to get their attendance. It appears that the learned Magistrate passed these orders in routine and did not take any notice of the non-compliance of his orders. Before acquitting the accused person on the ground that prosecution failed to produce their witnesses it must be established that summons were duly issued and the witnesses were served and they willfully absented. In that case all the legal coercive means for getting the appearance of the witnesses should be adopted. Any other course would encourage the accused to manipulate delaying conclusion of his trial for seeking acquittal on such ground. The judgments relied upon by the learned counsel for the respondents are distinguishable. In the unreported judgment within the period of 2/3 years the prosecution did not secure the attendance of a single witness though 72 adjournments had been made in the case. In the instant case almost the entire evidence was recorded and several adjournments during the trial were made due to absence of one of the accused and the defence counsel.
For the reasons stated above, without going into the merits of the case, we would accept this appeal, set aside the order of the learned trial Magistrate and remand the case to the Court with the direction to proceed in the matter in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.