ORDER MUHAMMAD NASEEM, J.- Muhammad sharif appellant-complainant got recorded FIR No. 475, dated 27.10.1992 at Police Station Mumtaz Abad, Multan under sections 452/506 PPC with the allegation that Jamshed Ali respondent/acquitted accused trespassed his property and criminally intimidated him. After necessary investigation the challan was submitted before the Area Magistrate. On 21.7.1993 Jamshed Ali respondent was charged under sections 506/452 PPC who pleaded not guilty thereto.
Thereafter different dates were fixed from 30.10.1991 to 12.9.1994 for recording the evidence. On different dates the Presiding Officer remained on leave or otherwise did not perform the judicial work due' to his executive duties. For some dates the summonses of the witnesses were not received back served or unserved. Afterwards the learned Sessions Judge, Multan transferred the matter to the Court of Syed Zahid Hussan Qadri, Magistrate lst Class, Multan who took up the matter for the first time on 30.10.1994 and summoned the prosecution witnesses for 14.11.1994. The summonses we not received back. On 14.11.1994 the trial Magistrate passed the order to procure the attendance of the PWs through bailable warrants in the sum of Rs. 5,000/- each for 21.11.1994. An application under section 249-A, Cr.P.C, was earlier submitted on 27.6.1994 and on 21.11.1994, after hearing the parties, due to the non-appearance of the prosecution witnesses Jamshed Ali respondent was acquitted. On 19.2.1995 Muhammad Sharif complainant filed a revision petition against the aforesaid order dated 21.11.1994 which was disposed of on 12.11.1995 by the Additional Sessions Judge, Multan without merits on the ground that against the order of acquittal an appeal is maintainable and that with the revision petition no certificate of the District Magistrate was attached which could make out that the State did not want to file an appeal. Thereafter Muhammad Sharif appellant-complainant filed this appeal before this Court under section 417(2- A), Code of Criminal Procedure on 28.11.1995. It has been averred in the appeal that section 249-A, Code of Criminal Procedure was not applicable in the circumstances of the matter.
2. Alongwith this appeal an application under sections 5/14 of the Limitation Act for condoning the delay has been filed wherein it has been mentioned that the matter was prosecuted/followed before the Additional Sessions Judge in good faith and that section 417(2-A), Code of Criminal Procedure was incorporated through amendment vide Act XX of 1994 made applicable from I4.Ll.l994 (printed as PLD 1995 Central Statutes 231). This application/appeal have been resisted by the respondent/acquitted accused. Learned counsel for the appellant argued that the matter was prosecuted before the Additional Sessions Judge in good faith after filing the revision petition especially when the impugned order of acquittal was passed on 21.11.1994 while the long standing procedural law in the matter was amended with effect from 14.11.1994. He added that in the circumstances it is a tit case for condoning the delay. On the contrary learned counsel for the respondent argued the ignorance. Of law is no excuse and for the reason the appeal having been tiled under section 417(2-A), Code of Criminal Procedure after considerable delay has necessarily to be dismissed. I, however, agree with the learned counsel for the appellant. The Code of Criminal Procedure was enforced on 22.3.1898 and the amendment was effected through the incorporation of sub-section (2-A) in section 417 Code of Criminal Procedure through Act No. XX of 1994 with effect from 14.11.1994 (printed as PLD 1995 Central Statutes 231). This Court can safely express its view. That such amendments of short words remain eclipsed from the sight of the Bench and Bar for the reason that the same are neither printed either in the press media nor in the law journals in time even though that of much importance. My view finds support from the working of the Additional Sessions Judge even, who disposed of the criminal revision petition filed by the appellant on 12.11.1995. It shows that both the members of the Bench and Bar remained ignorant while the appellant as the revision petitioner followed the matter before the Addl. Sessions Judge in good faith. After the dismissal of the revision petition on 12.11.1995 he filed the appeal on 29.11.1995 and in view of the aforesaid special circumstances of the dispute in hand 1 agree that due to the attraction of sections 5/14 of the Limitation Act it is a fit case to condone the delay in the matter of preference of this appeal and 1 pass an . Thus the. Appeal is held to have been preferred within time.
3. On merits learned counsel for the appellant argued that a perusal of the interlocutory orders has made out that no serious effort was made by any Magistrate including Syed Zahid Hussan Qadri, Magistrate lst Class; Multan to procure the attendance of the prosecution witnesses through ordinary way or through adopting the coercive methods. He added that even though Muhammad Sharif complainant appeared before the trial Court on different dates his presence was not marked and his statement was not recorded. He added that the non-service of the prosecution witnesses due to the laxity of the Presiding Officer of the Court would not attract the provisions of sections 249-A, Code of Criminal Procedure for the purposes of the acquittal of accused. On the contrary learned counsel for the respondent/acquitted accused canvassed that the prosecution failed to adduce the evidence for a considerable period and for that reason the presumption would be that the prosecution had no material with it so as to connect the respondent/acquitted accused with the alleged occurrence whereby there was no likelihood for his conviction and he has rightly been acquitted under section 249-A, Code of Criminal Procedure.
4. Before embarking upon the discussion it would be convenient to reproduce as under section 249-A. Code of Criminal Procedure:- "249-A. 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 be recorded, he considers that the charge is groundless or that there is no probability of the. Accused being convicted of any offence".
5. A perusal of the record maintained by the Trial Court has made me to express at the very out-set that the trial has been conducted in a perfunctory manner. Almost all the interlocutory orders are in the hand of the Reader of the Court and have simply been signed by the Presiding Officer. There is no material on record to make out that any serious effort was made by the Presiding Officer himself to look into the matter of the service of the prosecution witnesses. The summonses are prepared by the Ahmad and through the Naib Court are sent to the Deputy Superintendent of Police (Legal) for service who further has to despatch the same to the concerned Police Station. No Presiding Officer has gone through the Despatch Register and sought any explanation of his Ahmad, Naib Court or the Station House Officer of Police Station Mumtax Abad as to why the summonses were not being returned served or unserved. My experience is that such havoc is played by the Ahmad of the Court to help the accused. It shows the loose control of the Presiding Officer on his staff. From 30.10.1993 inwards the PWs were not served as the summonses were not received back served or unserved. No coercive method was employed to procure the attendance of the prosecution witnesses and it was on 27.6.1994 that an application was filed under section 249-A, Code of Criminal Procedure by the accused during the trial for his acquittal due to the non- appearance of the prosecution witnesses. On about six dates the Presiding Officer was not in the chair. The matter was transferred on administrative side by the learned Sessions Judge. Multan to the Court of Syed Zahid Hussan Qadri, Magistrate lst Class. Multan who took up the matter for the first time on 30.JO. 1994 arid summoned the witnesses for 14.11.1994. He did not take the pains as to why the witnesses vare riot served and as to why the summonses were not received Served or unserved On 14.11.1994 he passed the order for the issuance of th^ bailable warrants of the prosecution witnesses. He did not take the pains and worked in the same perfunctory manner on 21.11.1994. He did not ascertain as to why the bailable warrants of the PWs were not received back served or unserved. It shows that every time no serious attention was being paid for the disposal of the case on merits. Muhammad Sharif complainant has appeared before this Court on every date of hearing and he has taken I up the plea that he appeared before the trial Court on every date of hearing, but his presence was not marked. Thus the non-appearance of the prosecution witnesses, cannot be said to be due to the laxity of the complainant. Rather, the Presiding Officer(s) proceeded in the matter in perfunctory manner. This is with respect to the working of the Presiding Officers and is one aspect of the matter.
6. The other aspect of the matter is that in the aforesaid state of affairs when the prosecution witnesses do not appear in the witness-box as their attendance is not procured by the Presiding Officer in ordinary manner or through adopting the coercive methods; section 249-A of the Code of Criminal Procedure is not applicable.
That fault/loose control/non-serious working of the Presiding Officer should not damage the case of the prosecution for the purpose-of the acquittal of the accused under section 249-A. Code, of Criminal Procedure. 1 am tempted to express that no doubt an accused is the favourite' child of law, but keeping in view the shape of scale of justice the complainant is also not devoid of the justice of the Court. As I read the provisions of section 249-A of the Code of Criminal Procedure a Magistrate can only\ acquit an accused where he considers either that the charge is groundless or that there is no probability of the accused being convicted of any offence. The trial Magistrate did not conclude, rather it was not possible for him to have concluded that the charge was groundless or that there is no probability of the accused being convicted of any offence- in the circumstances of this case because the impugned order had been summarily passed upon a denial of opportunity to the prosecution to produce the prosecution witnesses whose attendance had to be procured by the Presiding/^officer by adopting all the legal methods. Such denial amounted to the denial of justice itself. My view is that the impugned order fell far from the ambit of section 249-A of the Code of Criminal Procedure in the circumstances of the material available. Thus the order under appeal represents an absolutely illegal exercise of jurisdiction at the cos of justice itself.
Section 249-A of the Code of Criminal Procedure has been invoked by the trial Court without any legal justification for the purpose of acqu. Uai of Jamshed Ali respondent and I hold that the impugned judgment of his acquittal cannot be sustained.
7. For what has been said above, I accept this appeal, set aside the impugned judgment dated 12.114994 and remand the case to the trial Court to decide the same afresh in accordance with law after recording the prosecution evidence, statement of the accused and the defence evidence (if the accused is desirous in the matter). The parties and their learned counsel shall appear before the learned Sessions Judge, Multan on 6.5.1996 who shall send the judicial file to the Court of competent jurisdiction in view of the fresh arrangement due to the separation of Judiciary, from the Executive. Jamshed Ali respondent/accused is admitted te bail in tsumebite of Rs. 5,000/- (rupees five thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Multan who shall submit the bail bond etc~ on 6.5.1996 before him failing which he shall be liable to face the legal consequences.
The bail bond etc. Shall be attached with the original file.