Find a Lawyer

Criminal Acquittal Appeal No. 9 of 1980, decided on 9th March, 1986.

‑‑‑Ss. 417 & 249‑A‑‑Penal Code (XLV of 1860). Ss.409, 467, 468, 419 & 420‑‑Prevention of Corruption Act (11 of 1947), S.5(2)‑‑Appeal against acquittal‑‑No delay occurring on part of State in bringing case to conclusion‑‑Prosecution very diligent in production of its evidence on each date of hearing of case against accused‑‑When accused was acquitted under S. 249‑A, Cr. P.C. by trial Court, no material was before it to arrive at conclusion to effect that there was no possibility of recording conviction against accused‑‑Material witnesses were yet to be examined and evidence, till then recorded, was of a formal nature‑‑Trial Court not sure that material witness would not be produced and if produced would not be sufficient for recording conviction‑‑State also not adopting dilatory tactics‑‑Trial Court not allowing prosecution even one opportunity to produce witnesses whose evidence could be considered material for ultimate result of case‑‑Impugned order Tanta mounting to stifling prosecution on the contrary‑‑Order of acquittal, held, was not only uncalled for but had caused failure of justice in circumstances.

Hussain Bakhsh v. Allah Bakhsh etc. 1981 S C M R 410 rel.

‑‑‑--S. 265‑K‑‑Trial Court is empowered to acquit accused at any stage but that can only be done when, after hearing prosecution and accused, it considers that there is no possibility of accused being convicted of any offence.

Muhammad Yousuf, A.A.‑G. for the State.

Iftikhar Muhammad for Respondent.

Date of hearing: 9th March, 1986.

Sardar Mohammad Zaman Saleem Durrani respondent herein was, during the years 1975 and 1976, Private Secretary to the Provincial Minister for Local Government. In order to develop agricultural and water resources of the Province the Government of Baluchistan had prepared a scheme for granting aid to the small land holders of the Province. It is alleged that the respondent had, by abusing his position as a public servant and by corrupt and illegal means, drawn a sum of Rs.1,05,000 (Rupees one lac five thousand) from the said Government funds in his own name and in the name of some other fictitious persons, the details of which is as follows:‑

(1) Accused in own name Rs. 20, 000

(2) In the name of his brother

Sardar Abdul Rahim. Rs.20,000

(3) Agha Shoaib (brother‑in

law of the then Minister

Yousuf Magsi). Rs.10,000

(4) Agha Irfan (brother‑in

law of the then Yousuf Magsi) Rs.10,000

(5) Mst. Fatime a landlady

of Kala. Rs.15,000

(6) Naib Ghulam Nabi Manager

of father‑in‑law of the then

Minister Mir Yousuf Ali Magsi. Rs.15,000

(7) Rais Mir Jan Zamindar/tenant of

father‑in‑law of the then

Minister Mir Yousuf Ali Magsi Rs.15,000.

The occurrence came to light and the matter was reported to Police Station Anti‑Corruption, Quetta on 15‑5‑1976 where F.I.R.No.7/1976 was recorded on the said date. After investigation the respondent was sent up for trial on 24‑3‑1977 before Senior Special Judge, Anti Corruption, Quetta. The case remained pending in that Court and on 22‑3‑1979 the respondent was charged under section 409/467/468/419/420, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. The respondent pleaded not guilty and claimed trial. In the meantime the case was transferred to the Court of the Senior Special Judge, Anti‑Corruption, Mastung. The transferee Court took cognizance of the matter on 1‑8‑1979 and the respondent first put in appearance in that Court on 10‑10‑1979, whereafter the case was fixed for recording of the prosecution evidence on 6‑11‑1979. On the latter date no witness was present and the case was put off to 22‑11‑1979. Three witnesses were present on 22‑11‑1979 but on the request of the P.D.S.P. the case was adjourned to 24‑11‑1979 as he was not in possession of the record of the case. On 24‑11‑1979 the evidence of two witnesses was recorded and the case was adjourned to the next day. On 25‑11‑1979 one more witness was examined and the case was adjourned to 11‑12‑1979 On the latter date three prosecution witnesses were present and their evidence was recorded. However, the evidence of P.W.4 Malik Mehmood could not be concluded and he was directed to appear of the next day. But it appears from the order, sheet dated 12‑12‑1979 that the said witness was not present in the Court and he was summoned for the next day. On 13‑12‑1979 the remaining evidence of P.W.4 Malik Mehmood was completed and one more witness Abdul Malik was also present but his evidence was not recorded and the order‑sheet, dated 13‑12‑1979 shows that the respondent had filed an application under section 265‑K, Cr.P.C. of which notice was given to the P.D.S.P. and the case was adjourned to 20‑12‑1979. On the latter date arguments on the said application were heard and the case was adjourned to 24‑12‑1979 for orders on which date the said application was accepted and the respondent was acquitted under section 265‑K, Cr.P.C. Aggrieved by the said order of acquittal of the respondent the State has come up with the present appeal against acquittal under section 417, Cr.P.C. read with section 10 of the Pakistan Criminal Law Amendment Act, 1958.

2. We have heard the learned A.A.‑G. for the State and Mr. Iftikhar Mohammad, learned counsel for the respondent at length. We were also taken through the entire record of the trial Court.

3. The main grievance of the learned A.A.‑G. is that the persons in whose name the respondent had allegedly submitted applications for the grant of aid and had allegedly received the amount sanctioned in their favour had yet to be produced as witnesses in the case and that there was neither any delay on the part of the State to produce the evidence nor was there any other fault on its part and the learned trial Judge acquitted the respondent improperly exercising powers under section 265‑K, Cr.P.C. which has tantamounted to stifling the prosecution.

4. We have very carefully gone through the record of the case and have perused the various order‑sheets of the case and the proceedings carried out by the learned trial Judge. We find that the prosecution was very diligent in the production of its evidence. Practically on every date of hearing some prosecution witnesses were present and the trial Court did record their evidence. So much so that practically day to day proceedings were carried out in the case and even then prosecution witnesses were present. There was no delay or the part of the State in bringing the case to conclude. The calendar of witnesses annexed to the F.I.R. includes as prosecution witnesses the names of the persons in whose names applications for grant of aid were submitted and financial aid was sanctioned in the favour and there evidence had yet to be recorded. These witnesses are Rais Ghulam Nabi, mentioned at serial No.3 of the list, Agha Shoaib at serial No.7, Agha Irfan at serial No.8, Abdur Rahim at serial No.17, and Mst. Fatima at serial No.18. It has been contended by the learned A.A.‑G. that these were very material witnesses in the case and their evidence had yet to be recorded when the learned trial Judge acquitted the respondent by invoking the provisions of section 265‑K, Cr.P.C. No doubt the said section empowers the Court to acquit an accused at any stage but that can only be done when after hearing the prosecutor and the accused the Court considers that there is no possibility of the accused being convicted of any offence.

5. It shall thus be seen that the Court can invoke the powers of acquittal under section 265‑K, Cr.P.C. only if after hearing the prosecutor and the accused it considers that there is no possibility of the accused being convicted of any offence. In the present case there was no material before the Court, at the stage when it acquitted the respondent, to arrive at the conclusion that there was no possibility of recording conviction against the respondent. The material witnesses had yet to be examined by the Court and the evidence till then recorded was of a formal nature. The State had mentioned the names of the material witnesses in the calendar of witnesses and there was no material before the Court to ascertain that the said witnesses would not be produced or if produced their evidence would not be sufficient to record conviction against the respondent. The State had also not adopted any dilatory tactics. In view of the aforesaid circumstances we are of the considered opinion that the learned trial Court did not allow the prosecution even one opportunity to produce the witnesses whose evidence could be considered material for the ultimate result of the case. On the contrary the impugned order has tantamounted to stifling the prosecution. The impugned order was not only uncalled for but it has also caused failure of justice. No reasonable opportunity was allowed to the State to conclude its evidence. We are, therefore, firm in our minds that the impugned order cannot be upheld.

6. The learned counsel for the respondent has contended that the order of acquittal recorded by a competent Court should not ordinarily be interfered with and in this connection he was relied upon the case of Hussain Bakhsh v. Allah Bakhsh etc. 1981 S C M R 410. In this case the Hon'ble Supreme Court did not interfere with the order of acquittal recorded by the Lahore High Court for the following reasons:‑

"The reason for taking the strict view is that in most jurisdictions an acquittal, once recorded by a competent Court is final, and the matter cannot be reopened at the instance of any party including the State. However, under our law, an acquittal can be challenged in certain circumstances, but if it is not challenged within the period allowed by law, it becomes final. In these circumstances it is only just and proper that a petition against acquittal must not be entertained if it is filed beyond time, unless it be shown the petitioner was prevented from moving the same by an act of the acquitted accused, or by some circumstance of a compelling nature beyond the control of the petitioner. "

However, it shall be seen that in the aforesaid case the accused were convicted by the trial Judge and he had filed appeal in the Lahore High Court which was 'accepted and they were acquitted, whereas, in the case in hand the trial Court had acquitted the respondent before recording the alleged incriminating evidence. The aforesaid Supreme Court case, to say with respect, is not applicable to the circumstances of the present case.

7. It was further urged by Mr. Iftikhar Mohammad, learned counsel for the respondent, that according to the provisions of subsection (6) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 a Special Public Prosecutor had to be appointed by Government for the conduct of trial of public servants in the Court of the Special Judge Anti Corruption and only the said Public Prosecutor could file appeal against the order of acquittal under the provisions of subsection (2) of section 10 of the said Act whereas the present appeal had been filed by the Advocate‑General who was not appointed as Special Public Prosecutor under the aforesaid Act and the appeal was incompetent. No doubt the contention raised by the learned counsel for the respondent is correct in view of the provisions contained in subsection (6) of section 6 and subsection (2) of section 10 of the Pakistan Criminal Law Amendment Act, 1958. but the learned A.A.‑G. has produced a notification issued on 20th April, 1980 by the Government of Baluchistan in the Law Department under No. OPN: 5(Misc‑1/Law/79, whereby the Advocate General‑ Baluchistan has been authorised under section 10 of the said Act to file appeal against the order of acquittal of the respondent. In view of the aforesaid notification, the appeal has been competently and validly filed by the learned Advocate‑General. This objection of the learned counsel for the respondent is not tenable.

8. As a result of the above discussion we would accept this appeal, set aside the order of acquittal of the respondent, dated 24‑12‑1979 recorded by the Senior Special Judge, Anti‑Corruption, Mastung and would remand the case to him with the direction to record the remaining evidence and to conclude the case within three months from the receipt of a copy of the order. The respondent shall remain on bail on the same terms on which he was granted bail during the trial. The fresh bail bonds shall be furnished within 15 days.

9. We had recorded a short order on 9‑3‑1986 and the aforesaid are the reasons therefor.

M.Y.H. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.