Through this petition under section 561-A, Cr.P.C. The order dated 17-9-2001 passed by the learned Judicial Magistrate by which, he has closed the prosecution evidence, has been challenged alongwith the order dated 8-11-2001 passed by the learned Additional Sessions Judge, whereby, the revision petition of the petitioner has also been rejected.
2. The brief facts of the case are that the petitioner is complainant in case F.I.R. No.79 of 1994 dated 14-5-1994 registered under sections 452/427/337-D(ii)/148/149, P.P.C. At Police Station Chhab Kalan.
District Khanewal. After the submission of the report under section 173, Cr.P.C. In the year 1997, charge was framed and case was adjourned for the production of the prosecution witnesses. The statement of three witnesses from the prosecution side were recorded, but subsequently the case was adjourned on number of occasions due to the absence of the learned Presiding Officer or due to the non-availability of the remaining official witnesses and finally the impugned order was passed resulting into close of the prosecution evidence.
3. The learned counsel for the petitioner contends that learned trial Court has neither bothered to look into the previous interim orders, nor took into consideration the orders of this Court for issuance of non---bailable warrants or even forfeiture of the salary of non-attending official witnesses and without complying with such procedure, no effective order could be passed whereas petitioner himself has already been examined and had also produced the injured witnesses, but the presence of other official witnesses was not within his powers, and the learned trial Court has, without exercising its lawful powers duly vested in it, passed the impugned order which is liable to be set aside, alongwith the revisional order.
3. On the other hand, learned counsel for the respondents opposes this application on that ground that the case was registered in the year 1994; report under section 173, Cr.P.C. Was submitted in the year 1999; charge was framed in the year 1997 and finally the impugned order was passed on 17-9- 2001 where-against revision petition was also dismissed on 8-11-2001, hence, the reopening of the matter for recording the evidence at this stage will cause serious prejudice to the respondents/accused, who have already faced long agony of trial. Learned counsel for the respondent has also pointed out that Investigating Officer Ch. Farzand Ali and the Medical Officer Dr. Muhammad Yousaf have already died, thus, the evidence of remaining official witnesses cannot be recorded.
4. I have heard the learned counsel for the parties and also perused the record with their assistance. I have also gone through the impugned orders. The learned trial Court has not bothered to look into the interim orders earlier passed by it and finally passed the impugned order.
Though perusal of the interim orders shows that bailable and non-bailable warrants of arrest were directed to be issued against the witnesses, but those never received back in the Court after execution. The Supreme Court of Pakistan in "The State v. Sarwar Khan and. Others" PLD 1984 SC 428 observed as under:-- "By way of guidance to the Courts it may be indicated that when the summons issue, as they issued a number of times in this case for the witnesses and the witnesses do not appear in response to it, the reasons therefore must be examined and noted in the order sheet and where necessary coercive steps should be taken for securing the attendance of witnesses The Court should not feel so powerless in the matter of securing attendance and should not lay the entire responsibility on the prosecutor himself. Further, while recording an order under section 249-A, Cr.P.C. The Court should afford an opportunity to the prosecutor, in a complaint case to the complainant, before recording an order of acquittal and that can be done either by issuing a show-cause notice or calling upon the prosecutor or the complainant as the case may be, to show cause why such an order be not recorded. Finally needless to say that an opinion with regard to the involvement of an accused has to be formed in terms of the requirements of section 249-A, Cr.P.C.
And not outside it. "
It is-thus clear that the trial Court is bound to, record the reasons in the order sheet about non- attendance of the witnesses and should adopt all possible measures for procuring service of the process issued by it. The learned trial Court appears to have failed to take the notice of the above said direction of the Supreme Court. Under Article 189 of the Constitution all the Courts and administrative authorities are bound to obey the direction of Supreme Court of Pakistan.
5. I have noticed that the learned trial Court had been passing interim orders for adjourning the case on mechanical reasons and did not bother to take necessary steps for effecting the service of the witnesses. It is also noticed that process server never appeared before the Court inspite of direction. Even S.P. Of the District could be called for due to non-compliance of Court orders by his subordinates. Only ineffective orders for the forfeiture of salaries of the official witnesses were passed, who even then did not bother to appear in the Court. The attitude on the part of the learned trial Court is not appreciable. The learned trial Court should have taken into consideration the above said guide lines issued by the Supreme Court of Pakistan before closing the prosecution evidence the contention of the learned counsel for the respondents that some of the remaining official witnesses have already died is hardly a ground for maintaining the impugned orders. In that eventuality their secondary evidence can be recorded. In this view of the matter this petition is accepted, the impugned orders are set aside and the learned trial Court is directed to get the service of the remaining P. Ws. Effected through all possible measures The D.P.O. Concerned should be asked for any negligence on the part of his subordinates in the service of the processes issued by the Court. The learned trial Court should also take into consideration that the process directed to be issued have actually been issued by the Court staff and should not depend only on the report of the Ahmad made aside the interim orders. Due care must be taken before closing the evidence.
It is also noticed that directions of the Courts are not being complied with by the police officers or the executive authorities in letter and spirit, which attitude should be taken seriously by the trial Court and if the witnesses are not served, the officials concerned should be made answerable for the same and the Court is empowered to take necessary actions against them for non- compliance of its orders besides referring the case to their Head of the Department for disciplinary action against them. It is also duty of the trial Court to see that the cases should not-go unpunished only due to the lack of interest by the police in the production of the witnesses. Since the main case pertains to the year 1994, the learned trial Court is directed to decide the main case within one month after the receipt of this order, even hearing the case on day to day basis.