THE STATE vs SARWAR KHAN AND OTHERS

ORDER

1. ' SHAFIUR RAHMAN, J.-Advocate-General, N.-W. F. P. Seeks leave to appeal against the judgment of the Peshawar High Court, dated 24-10-1981 whereby it declined to interfere with an order recorded under section 249-A, Cr. P. C. Acquitting the respondent.

2. ' On a report lodged on 10-10-1978 at Police Station Hangu, a case was registered against the three respondents under section 427/447, P. P. C. Complete challan was put up in Court on 21-4-1979. A number of adjournments were granted in the case till 29-3-1981. On the 30th of March, 1981, the following order was recorded "The accused present on bail with counsel. More than fifty bearings have taken place and several chances given to prosecution to produce evidence but failed. The offence is of trivial nature and the case is lingering for fault of prosecution. Since there is no justification to give further chances to the prosecution, 4therefore, acquit the accused under section 249-A, Cr. P. C."

3. ' It is said that the same day an application was filed by the Advocate on behalf of the complainant that he was present and one witness was also present. The case was not called. He mentioned in the application that this case was not fixed for evidence. The Magistrate recorded the following order :- "The Advocate and his clerk etc. Appeared in the Court but since by that time 1 bad recorded the order of acquittal, I, therefore, have no objection if the irregularity, if any, can be regularised in upper Court."

4. ' An appeal was filed in the High Court against this order by the State and the same was dismissed.

5. It was observed that :- "The impugned order shows that the case was adjourned fifty times and several opportunities were given to the prosecution to produce evidence but they failed. Thus, the impugned order is based on proper reasons and calls for no interference."

6. ' The learned Additional Advocate-General submitted before us that the requirements for action under section 249-A, Cr. P. C. Are materially different than the mere absence of prosecution witnesses In the first place before recording an order of acquittal under section 249-A, Cr. P. C. The prosecutor and the accused have to be heard and either the charge is held to be groundless or an opinion is formed that there is no probability of the accused being convicted of any offence. Such a finding has not been recorded and the required opportunity was not extended to the prosecutor.

7. Besides, on the date immediately preceding the date of decision, the Presiding Officer himself was absent and the date fixed was not one for the appearance of the prosecution witnesses on that date. Therefore the absence of the prosecution witnesses was accountabe to the order passed in the proceedings and could not be made the basis for such an action.

8. ' On going through the record, we find that Nek Muhammad, the complainant who was a witness in the case was present on 21-2-19b0 but his statement was not recorded and the other witnesses were also summoned for the next date. On 24-11-1980, the trial Magistrate granted the last chance to the prosecution to produce witnesses. On 4-1-1981, the counsel for the complainant requested the Court to give a single adjournment to produce all the prosecution witnesses on the date fixed.

9. They, however, never appeared. It is true that the summons which issued were not scrutinised and no mention was made in the order-sheet with regard to the reasons for its non-service or return to the Magistrate. At no stage coercive steps were taken for enforcing the attendance of the witnesses. The order sheet indeed gives the impression that Court proceedings were not- conducted with that solemnity and thoroughness as it deserved.

10. There are, however, two factors appearing on the record which make it a case not fit enough for grant of leave. Neither in the first information report nor in the police statement submitted to the Court, the value of the property involved is mentioned nor the extent of damage done is in dicated.

11. In this background, the magistrate formed the opinion that the case related to a trivial property.

12. This impression does not get dispelled from the examination of the record. Thus, the case could fall under a general Exception to section 95, P. P. C.

13. 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 witness and the witnesses do not appear in response to it, the reasons therefor must be examined and noted -1 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.

14. ' With these observations, the leave to appeal is refused.