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Criminal Revision No. 256 of 1982, decided on 3 1st January, 198
----Ss. 249-A & 439-Acquittal and quashing of proceedings Held, not synonymous-Petitioner not asking quashing of proceed ings as being abuse of process of Court-Revision against order, under S. 249-A to be appreciated, considered and decided within limited scope of its power-Guiding principles laid down by superior Courts:
(i) That the power of revision of High Court under section 439, Cr. P. C. will only be exercised when there has been a clear miscar riage of justice.
(ii) That power of revision of High Court under section 439, Cr. P. C. will only be exercised when the impugned order is illegal and perverse.
(iii) That the power of the revision of High Court under section 439, Cr. P. C. will only be exercised when the impugned order is such that no reasonable Court would pass it.
(iv) That power of revision of the High Court under section 439, Cr. P. C. will only be exercised when it appears that great injustice has been done vide impugned-order.
(v.) That the High Court will not normally interfere in revision under section 439, Cr. P. C. unless it is an exceptional case.
(vi) That it would not be proper for High Court to act like an Appellate Court or trial Court. All that is necessary is to see whether serious error of law or great injustice has been committed such as would justify interference in revision.
-- Ss. 249-A & 439 - Contentions raised cannot be properly appreciated before evidence is recorded and requires deeper appreciation by trial Court-Allegations if accepted as true, disclosing criminal liability-No injustice done by dismissing petition under S. 249-A-Revision petition dismissed in circum stances of case.
Sh. Zia Ullah for Petitioner.
T. H. Jilani for A. A.-G. for the State.
Date of hearing ; 31tt January, 1983.
This Criminal Revision No. 256/82 arises from the order of the learned Special Judge, Anti-Corruption, Multan, whereby, he on 2nd November, 1982 while rejecting the application under section 249-A, Cr. P. C. moved by the petitioner, refused to acquit him of the charges under section 409, P. P. C. and section 5 of the Prevention of Corruption Act, 1947.
2. The facts leading up to this vision in brief are that Shamshad Hussain petitioner is Executive engineer, Public Health Engineering Department. From September, 1973 to January, 1976 he was posted at Dera Ghazi Khan. In pursuance to a complaint made by Muhammad Ibrahim, a local advocate, to the then Prime Minister, an inquiry was conducted by the Inspection Team against the petitioner and others. The report of the Inspection Team was sent to Director, Anti-Corruption Department for further inquiry. Consequently, a case F. I. R. No. 14/80 under section 409/468/471, P. P.-C. and under section 5 of the Preven tion of Corruption Act, 1947 was registered against the petitioner and others. After the investigation, four separate challans were prepared out of the same F. I. R. and submitted before the learned Special Judge, Anti. Corruption, Multan. This petition pertains to Challan No. 1 with regard to Charge No. 11. The report under section 173, Cr. P. C. in this case was submitted on 18th August, 1982 which reads as follows :-
3. To prove its case, the prosecution cited as many as 6 witnesses in column No. 5 of the Challan. The case was adjourned for framing charge and recording statement of P. W. Mazharul Haq when the petitioner made application under section 249-A, Cr. P. C. for his acquittal at that stage, which was however, dismissed on 2nd November 1982. Feeling aggrieved, the petitioner filed this revision wherein the prayer is ;
it is, therefore, respectfully prayed that the revision petition of the petitioner may kindly be accepted, and by setting aside the order dated the 2nd of November, 1982 of the Special Judge, Anti -Corruption, Multan, the petitioner may kindly be acquitted of the charge.
It is remarkable that the petitioner has not asked for the quashment of the proceedings as being an abuse of the process of Court. It is well settled that acquittal and quashment of proceedings are not synonymous. It is, therefore, crystal clear that this is a revision pure and simple against the order dated 2nd November, 1982 passed in application under section 249-A, Cr. P. C. in a case under section 409, P. P. C. ands section 5 of the Prevention of Corruption Act, 1947 and as such has .to be appreciated, considered and decided within the limited scope of the revisional power of this Court and that too, in accordance with the guiding principles laid down by the superior Courts :-
(i) That the power of revision of High Court under section 439, Cr. P. C. will only be exercised when there has been a clear miscar riage of justice.
(ii) That power of revision of High Court under section 439, Cr. P. C. will only be exercised when the impugned order is illegal and perverse.
(iii) That the power of the revision of High Court under section 439, Cr. P.. C. will only be exercised when the impugned order is such that no reasonable Court would pass it.
(iv) That power of revision of the High Court under section 439 tr. P. C. will only be exercised when it appears that great injustice has been done vide impugned order.
(v) That the High Court will not normally interfere in revision under section 439, Cr. P. C. unless it is an exceptional case.
(vi) That it would not be proper for High Court to act like an Appel late Court or Trial Court. All that is necessary is to see whether serious error of law or great injustice has been committed such as would justify interference in revision.
For the facility of the appreciations, I would like to reproduce the impugned Order :-
"This is an application praying for acquittal under section 249-A, Cr. P. C. in Challan No. 1. The accused in this case are Shamsbad Hussain and Muhammad Aslam, the third accused having died. From the police report in the case, report of the Technical Officer and statements of witnesses under section 161, Cr. P. C. the peti tioner's prayer for acquittal at this stage appears to be premature. Therefore, the petition for acquittal under section 249-A, Cr. P. C. is dismissed. This does not however, mean that the accused have been found guilty. This will depend on the evidence that is yet to come on record."
(Sd.)
Special Judge,
Anti-Corruption, Multan,
4. The learned counsel has vigorously assailed the impugned order by raising following points :=
(i) That in view of the opinion of the member Technical Chief Minister Inspection Team given in his report and in his statement under section 161, Cr. P. C. that the S. E. could award 20% above the rates sanctioned by Chief Engineer, no offence has been committed by S. E., etc. by awarding rates less that 20 per cent.
(ii) That since after inviting the tenders (which he could invite) the petitioner recommended the lowest tender, he cannot -be said to have committed any offence.
(iii) That the allegations levelled against the petitioner accepted at its face value, no offence is made out inasmuch as, mere wrong per formance at some state could not attract criminal charge.
(iv) That the dismissal of application under section 249-A, Cr. P. C. has resulted in great injustice to the petitioner.
5. After having considered the arguments advanced by the learned counsel in the light of the guiding principles pertaining to the revisional jurisdiction of this Court, I am not inclined to interfere with the impugned order for the reasons :-
(a) That it was after several inquiries that case under section 409, P. P. C. and under section 5 of the Prevention of Corruption Act, 1947 was registered against the petitioner and others.
(b) That after the registration of the case, the police recorded the statements of the witnesses including the technical hands which disclosed the commission of crime, by the petitioner and others.
(c) That after the investigation, the police prepared report under section 173, Cr. P. C. with regard to Charge No. 10 and it has been stated therein in so many words:
(d) That to prove the charge, the prosecution proposes to examine as many as 6 witnesses.
(e) That the trial has not started yet.
(f) That the learned Assistant Advocate-General states that there is ample evidence which the State proposes to adduce.
.6. Point No. 1 raised by the learned counsel cannot be properly appreciated before the evidence is recorded. Furthermore, it requires deeper appreciation by the trial Court. Point No. 2 raised by the learned Counsel does not make out good ground for interference and setting aside the impugned order. As for point No. 3, I have not been able to persuade myself to agree with the learned counsel that the allegations accepted as B true, do not disclose any criminal liability. As for the last point, I find that no injustice, whatsoever; has been done to the petitioner through impugned order inasmuch as, the trial has yet to commence. To my mind, the learned Special Judge has very rightly observed that prayer for acquittal was premature. In its peculiar circumstances, it is a serious case involving allegations of misconduct, forgery and misappropriation of huge amount. The evidence proposed to be examined is complicated and also technical which requires appreciation by the trial Court. I am of the considered opinion that the High-Court when exercising its revisional powers should not pre-empt the function and the duty of the trial Court or of the appellate Court.
7. For what has been stated above, I am convinced that the impugned order is neither illegal nor perverse and as such not liable to be inter fered with by this Court in its revisional jurisdiction.
Needless to add, the petitioner may repeat his prayer for acquittal before Special Judge under section 265-K/249-A, Cr. P. C. after some evidence is recorded, if so advised.
Petition dismissed
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