' Sardar Ali son of Rahim Bakhsh, caste Mughal, resident of Gatwala Chak No,199-RB, Police Station Faisalabad, Tehsil & District Faisalabad, faced trial before the Illaqa Judicial Magistrate at Faisalabad in connection with a case bearing F.I.R. No,408 of 1992 registered with Police Station Saddar Faisalabad, on 23-9-1992, under section 448, P.P.C. But despite many opportunities the prosecution could only produce three private witnesses while four police witnesses including the Investigating Officer could not be produced, as a consequence of it the evidence of the prosecution was closed vide order dated 24-12-1999 then statement of the accused under section 342, Cr.P.C. Was recorded who denied the allegation levelled by the prosecution and produced copies of Jamabandi for the year 1995-96 (documentary evidence) in his defence. After hearing the learned counsel for the parties and going through the record the learned Judicial Magistrate arrived to this conclusion that the prosecution has failed to prove its case, so as a consequence of it, he acquitted Sardar Ali the above-mentioned accused vide judgment dated 31-12-1999. Hence this appeal.
2. I have heard the learned counsel for the parties and have also gone through the relevant record placed before me.
3. Learned counsel for the appellant (complainant) argued that the appellant could produce the private witnesses .Before the trial Court but production of the police witnesses before the Court was beyond his Control as they were to be summoned through process serving agency or through the In charge of the local police station that in case the police employees as witnesses in this case were not appearing despite summoning and issuance of bailable warrants the learned trial Court should have adopted the coercive measures to procure the attendance of the police witnesses but no such method was followed even In charge of Police Station or D.S.P. Circle were not summoned to informed the conduct of the police witnesses, therefore, the closing of the evidence of the prosecution was illegal in the light of the judgments of the superior Courts and being so the acquittal of the accused was illegal and order dated 31-12-1999 is liable to be set aside. He referred to the case reported in "State v. Muhammad Saleem alias Seema and another, PLD 1994 Lahore 459 in support of his arguments.
' On the other hand learned counsel for the respondent/accused argued that the instant case was registered in the year 1992 under section 448, P.P.C. And the respondent faced the agony of trial for about 7-years and during this period the prosecution could produce the said three witnesses without any fault on the part of the accused; that the basic dispute in between the parties was civil in nature relating to which the appellant has been defeated in the civil litigation, therefore, there can be no output of the criminal trial even , after recording the remaining prosecution witnesses that the acquittal of the respondent/accused is based upon the perusal of evidence available on the record and the defence version advanced by the accused in his statement under section 342, Cr.P.C. And that the impugned order and collusion of the witnesses of the prosecution could be challenged in a revision petition, but the prosecution failed in this connection, therefore, the order dated 31-12-1999 is in accordance with law and being so, calls for no interference. He referred to the cases reported in Muhammad Bashir v. Ramzan and others, 1991 P.Cr.L.J. 1695 (Lahore); The State v.
Khawaja Manzoor Hassan and 10 others, ,1993 M.c.D.544 (Lahore), and Ghulam Sikandar and another v. Hamaraz Khan and others PLD 1985 Supreme Court 11, in support of his arguments.
4. During arguments while examining the record, the learned counsel for the respondent/accused pointed out some interim orders which showed that in order to procure the attendance of the prosecution witnesses the learned trial Court could issue at the most bailable warrants and he admitted that the learned trial Court did not issue non-bailable warrants to procure the attendance of the witnesses nor Incharge of the Police was summoned to apprise the situation.
The point for examination is as to what is the procedure in a criminal trial when the prosecution witnesses are not being produced by the prosecution and to what is the impact of such circumstances on the criminal trial. Such like matter was taken up in the case reported in State v.
Muhammad Saleem alias Seema and another, P.L.D 1994 Lahore 459, wherein in short, in the light of the circumstances it was observed that there was a shameful performance on the part of the prosecution and the police agency and disgraceful display of apathy, inefficiency and lack of interest on the part of two departments in handling the prosecution' in criminal matters and it was held that administration of justice is the obligation of the Courts of law and if acquittals were ordinaryily allowed to be recorded on the ground of non-production of prosecution witnesses then the Courts of law would be abdicating their powers, duties and obligations in favour of the process servers which obviously is not the intention of law nor is the same a norm of justice and ensuring appearing of 'witnesses before it is the responsibility of the trial Court even sections 87, 88 and 90 of the Cr.P.C.. As also the relevant provision of Chapter 10 of P.P.C. Clothe the trial Court with sufficient powers to coerce the attendance of the witnesses and to deal with the officials and agencies which neglect the discharge of duties in the said connection.
5. Now in the instant case it happened that out of seven witnesses only three witnesses could be recorded due to the efforts up to issuance of bailable warrants but despite this four police witnesses available here and there did not appear in the Court. They might have avoided to supply blood to the prosecution case or that they might be formal witnesses but for the purpose of fair trial the recording of their statements was quite essential and this could be done by the learned trial Court which had powers to adopt coercive measures but the learned trial Court did not prefer to issue non-bailable warrants nor D.S.P. Circle or Incharge of the police station concerned was summoned and perhaps it was such a case-in which direction was issued by this Court. The learned trial Court preferred to dispose of the case within stipulated period whereas if for the sake of procuring the attendance of the police witnesses the learned Judicial Magistrate could send a request through proper channel for extension of time, therefore, the order passed by him is obviously illegal and cannot be sustained in the eyes of law.
6. Now in view of above situation the material point for examination is that as to what is the solution of illegality committed by the learned Judicial Magistrate, the remedy of it is provided in cases reported in Muhammad Bashir v. Ramzan and others, 1991 P.Cr.L.J. 1695 (Lahore), The State v.
Khawaja Manzoor Hassan and 10 others; 1993 M.L.D 544 (Lahore) wherein the impugned orders were found illegal and not sustainable in law, but because of the old age of the accused, the said cases were not remanded for re-trial. The same is the position in the instant case because it was registered in the year 1992 and was disposed of after .Seven years i.e on 31-12-1999 without any fault, on the part of the accused and at the time of recording of statement of the accused under section 342, Cr.P.0 on 24-12-1.999 his age was 85 years and certainly he is aged about 88 years old at present, therefore, so fat. The order dated 31-12-1999 is concerned it being illegal is set aside with direction to all the Courts conducting criminal trials that Judgment reported in the case, "The State v. Muhammad Saleem alias Seema and another (PLD 1994 Lahore 459) (supra) must be followed in letter and spirit. Anyhow because of the old age in this case, it is not being remanded for re-trial even otherwise the learned counsel for the respondent/accused Informed that the appellant has lost the civil litigation and that even after recording of the statements of the appellant's witnesses there would be no output of re-trial except a round of agony of trial by an old man. So this appeal is disposed of accordingly.