2017 P Cr (PLP)

MUHAMMAD SHERAZ KIANI, J.

The above captioned revision petition has been filed against an order of Tehsil Court of Criminal Jurisdiction Kotli dated 14.07.2015, whereby the evidence of prosecution witness Nos.5, 7 to 9 was closed.

2. The facts, briefly stated are that the accused-respondents are facing trial before Tehsil Court Criminal Jurisdiction Kotli in a case registered against them at Police Station Kotli in offences under sections 447, 34, A.P.C. and 14 of The Offences Against Property (Enforcement of Hadd) Act, 1985. The case was at the stage of recording evidence of prosecution witnesses, when the evidence of Kamran Sadiq son of Mohammad Sadiq (P.W.5), Ali Ahmad, Patwari (P.W.7), Sohail Yousaf SI/SHO (P.W.8) and Khalil Ahmad (P.W.) was closed vide impugned order dated 14.07.2015; hence, this revision petition.

3. Ch. Mehboob Elahi, the learned counsel for the petitioner submitted that the case was fixed for recording evidence of prosecution witnesses but the Court below did not summon P.Ws.7 to 8 through proper channel because they are Government employees The learned Counsel pointed out that evidence of aforesaid witnesses is essential for just decision of the case because they are important witnesses in the case; therefore, the impugned order dated 14.07.2015 may be set aside and the trial Court be directed to summon the P.Ws.7 to 9 through the head of department while P.W.5 is private witness in ordinary manner. He contended that due to impugned order, the prosecution shall face irreparable loss.

4. On the contrary, Mohammad Najeeb Raja the learned Counsel for the respondents vigorously argued that the prosecution was afforded much more opportunities for recording its evidence but failed to do so and the trial Court rightly closed the evidence of prosecution witnesses; therefore, the revision petition may be dismissed.

5. I have heard the learned Advocates for the parties and gone through the record with care.

6. A careful consideration of record reveals that initially, the summonses were issued for the attendance of witnesses Nos.5 and 7 to 9 and thereafter, bailable and non-bailable warrants were issued but the warrants were not executed and the aforesaid witnesses did not appear before the Court and thus, the responsibility was shifted upon the shoulders of the prosecution to produce them at its own. When, after availing several opportunities the prosecution could not produce them before the Court, the learned trial Court vide impugned order closed the evidence of the witnesses.

7. It has been observed in so many cases that has become a practice that initially, the process is issued for the attendance of the witnesses and later on, without compliance of the order of the Court, the prosecution or the complainant is directed to produce the witnesses at their own responsibility without considering that it is very difficult for a complainant or even for the prosecution side without any warrant of the Court to bring the official witness in the witness box and thus, evidence is closed and finally the accused are acquitted. Such practice puts a question mark on our judicial system that how, the orders of the Court are not implemented and complied with? The impugned order is one of the example of such cases, which shows the weakness of the learned Presiding Officer. The Court has got ample powers to implement its orders through coercive measures as well as by way of other legal means. The learned Court below has not bothered to implement its order in its letter and spirit. When, the warrant of arrest is issued, then, it must be executed in all eventualities except that attendance of a witness has become impossible due to his death or by leaving the country or any other sufficient reason. No such circumstances exist in this case. Witness Nos.7 to 9 are Government servants, i.e Patwari and Police Officials. It is impossible for a complainant, who is the real prosecutor of the case, to produce an official witness before the Court without any warrant of the Court. Once, the trial Court has issued the process for attendance of the witness, then, it should have been completed in accordance with law.

8. If a witness, despite service of summons or notice, deliberately, without any sufficient reason does not appear before the Court of law, he commits offence under section 174 of A.P.C. and criminal proceedings can be initiated against him.

9. Secondly, if the executing authority does not implement the order of the Court, it becomes contempt of Court and that executing authority can be proceeded under the Contempt of Court Act, as well.

10. Thirdly, an official witness, who avoids the process of the Court deliberately and does not appear before the Court and resultantly, the proceedings of the case is procrastinated, it is misconduct as well and the competent authority can be directed by the Court to take disciplinary action against the concerned official.

11. If the Courts resort to above mentioned legal options, then, I am convinced that no witness will dare to deliberately, absent himself from the Court and the attendance of the witnesses can be ensured. Unfortunately, the learned trial Court, before closing the evidence, have taken none of the above mentioned steps under the law and has shown its helplessness, which is not warranted by law and such practice causes distrust among the general public in the judicial system of the Country.

12. I am cognizant of the fact that there is no bar for the prosecution to produce the witness at its own without process of the Court but once, the Court has issued the process to procure the attendance of a witness, then, that should be completed by the Court, culminating into the recording of the evidence and not in closure of the evidence. However, if the prosecution wants to produce the witness at its own responsibility itself, only then, the Court is not responsible.

13. In the instant case, Sohail Yousaf, SI/SHO witness No.8 has registered the FIR, Khalil Ahmed, IHC witness No.9 has conducted the investigation and witness No.7 Ali Ahmed is the Patwari Halqa and All the three witnesses are official witnesses and their evidence is essential for the just decision of the case and witness No.5 is also an important witness. The learned Court below has closed the evidence to the extent of the said witnesses by violating the law and against the norms of the Justice and thus, has committed grave illegality.

14. The Crux of the above detailed discussion is that the above titled revision petition is accepted. The impugned order passed by the learned Court below dated 14.07.2015 is set aside and the learned trial Court is directed to ensure the attendance of the witnesses, strictly in accordance with law and decide the case within a period of three months. A copy of this order shall be sent to the trial Court, forthwith for compliance of the same. HBT/5/Sh.C. (AJ&K) Revision accepted.