' The present criminal appeal calls into question the legality and propriety of the order dated 12-4- 1989 whereby the learned trial Court/Ilaqa Magistrate, had acquitted the respondents Nos.1 to 3 by their application under Section 249-A, Cr.P.C. Being allowed in case registered vide F.I.R. No,121/85, dated 7-9-1985, at Police Station Race Course, Lahore, under section 427/448/147, P.P.C. The instant appeal filed on behalf of the State was admitted to regular hearing and notice was issued herein on 18-10-1989, on the ground that the delay in the conclusion of the trial had been caused by the respondents themselves and that, in any case, no prejudice had been caused to the respondents/accused thereby and that, therefore, the impugned order was not sustainable in law.
2. The brief facts of the case, as stated in the F.I.R., are that according the complainant Qaiser Abbas, S.D.O., the accused/respondents had entered into the premises of the Government Store of his Department and thrown the goods therein either in the compound thereof or some outside the compound and it is further alleged therein that the respondents had built a boundary wall around the said premises.
3. The learned counsel for the appellant submitted that although the case pertains to the year 1985, yet the delay in conclusion of the trial had been caused because of the non-appearance of one or the other respondents themselves and that in fact, it was only on 1-12-1988 that all the accused/respondents were present before the trial Court whereupon the learned trial Court had issued summons for the P.Ws. And on their nonappearance, at first, issued their bailable warrants for their appearance before the Court and thereafter on 29-3-1989, pursuant to their non- appearance had issued non-bailable warrants. Therefore, argued that the learned trial Court in the first place should have allowed more time to the prosecution to produce its evidence and secondly should have ordered for the execution of the non-bailable warrants issued against the P.Ws. In this respect, further pointed out that the learned trial Court had not said a word as to why the non- bailable warrants in question have not been executed. Therefore, finally argued that under the facts and circumstances stated above, the present appeal be allowed and the case be remanded to the learned trial Court for trial afresh in accordance with law against the respondents.
4. On the other hand, learned counsel for the respondents very fairly conceded that normally the Court should have allowed more time and more opportunities to the prosecution to produce evidence but nevertheless, argued that in the instant case, the said reasonable opportunity alone shall not be sufficient for allowing the present criminal appeal and thereby remanding the case for trial afresh. To support his said contention submitted, that the prosecution case suffers from such material discrepancies that the remanding of the case shall be an exercise in futility. In this respect, submitted firstly, that no P.Ws. Were named in the F.I.R. Nor any list of store goods allegedly thrown out by the respondents was stated therein to form part of the record, secondly, no details of the goods having been thrown out from the store as alleged or the wall alleged to have been constructed by the accused/respondents, has been mentioned in the site plan placed on the record, thirdly, that there is not an iota of evidence on the case file to support the contention that the premises in question was the property of the Government or of the department of the complainant. Further argued that under the peculiar circumstances of the case all the witnesses of the prosecution namely, Qaiser Abbas, S.D.O./ complainant, Ch. Muhammad Amin, XEN and Muhammad Bashir Khan, Chowkidar, alongwith two police officials Muhammad Rafiq and Arshad Baig, A.S.I. Were Government servants and that, therefore, it was the duty of the complainant/departments, officials to prosecute the case with due diligence and that they cannot be allowed any benefit that may have been advanced to a layman. In this respect, further pointed out that the learned A.DA. Was present on every date of hearing on which the P.Ws. Were summoned or bailable warrants and finally their non-bailable warrants had been issued to ensure their production before the Court and that the failure of the P.Ws. To appear as witnesses before the trial Court clearly establishes that the complainant/department/State had not taken due interest or shown due diligence in prosecuting the instant case, and that thereafter after a lapse of three more years since the acquittal of the respondents, it can be safely stated that there was no likelihood of the conviction of the respondents taking place on the basis of the discrepancies in the prosecution of the evidence, stated above and because of the lacklustre attitude of the P.Ws. And the prosecution, to prosecute the case.
5. It was conceded on behalf of the State that no P.Ws. Was named in the F.I.R. And the P.Ws. Were in toto Government functionaries. It was further conceded that no list of goods allegedly thrown out from the store by the accused/respondents was made part of the F.I.R. Or was available as a separate list thereof on the file of the case. It was further submitted on behalf of the State that no details in respect of the goods allegedly thrown out or the wall allegedly constructed by the accused/respondents was stated in the site plan that forms part of the file of the case. It was further submitted on behalf of the State that there is nothing on the record to prove that the property in question was owned by the complainant/department or a Government generally.
6. Therefore, in view of what has been conceded on behalf of the State as stated above, while observing that the trial Court normally should have afforded more opportunities to the prosecution to produce its witnesses and should have taken appropriate measures for executing non-bailable warrants issued against the P.Ws. The Court is of the view that under the facts and circumstances, thus highlighted, it shall be exercise in futility to allow the present appeal and to remand the case for trial afresh.
7. Therefore, the present criminal appeal is hereby dismissed.