' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant appeal under section 417, Cr.P.C., Saeed Anwar Hayat son of Muhammad Anwar Ali, caste Raja, resident of Saeed Manzil, 7-Turner Road, Lahore, has called in question the vires of impugned order dated 10-4-2008, passed by.
Learned Special Judge, Anti-Corruption Establishment, Lahore; whereby the learned trial court while allowing application under section 249-A, Cr.P.C., acquitted Muhammad Israr Bhatti, Mohsin Khan and Malik Abdul Wahid accused/respondents of the charge in case F.I.R. No,23 of 2005, dated 26-3-2005, offence under sections 109, 161, 409, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947 registered at Police Station. ACE, Lahore.
2. Facts of the case succinctly required for determination of the lis in hand are that appellant had filed an application before the Director-General, Anti-Corruption Establishment, Lahore against Waheed Butt, Naveed, Muhammad Jameel and Malik Abdul Wahid with the, allegations that Abdul Wahid while giving huge bribe to Waheed Butt, Chief Town Planner, Naveed Town Planner and Jameel Inspector, firstly got misplaced the map of the complainant and thereafter dismantled the building of the complainant. On the application of the complainant, case F.I.R. No,23 of 2005, dated 26-3-2005, offence under sections 109 161, 409, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947 was lodged at Police Station ACE, Lahore. Subsequently, the Technical Officer, ACE, Lahore submitted a detailed report; wherein he exonerated the above accused persons, however, recommended for judicial proceedings against Mohsin Khan Patwari and Israr Bhatti, accused/respondents. After completion of investigation, report prepared under section 173, Cr.P.C.
Was submitted in the competent court of law. During the course of trial, the accused/respondents Nos.1 to 3 filed an application under section 249-A, Cr.P.C. And the learned -trial Court seized with the matter by allowing the application, acquitted the accused/respondents of the charge, which has been assailed by the appellant by means of instant appeal.
3. Learned counsel appearing on behalf of the appellant contends that the learned trial Court has passed the impugned order in utter disregard of settled principles of law on the subject. It is further contended that bare perusal of the order itself speaks that the same was passed in haste; whereby grave misreading and non-reading of prosecution evidence has been committed. Learned counsel vehemently contends that during the course of detailed/thorough inquiry, the accused/respondents were found guilty. Learned counsel next states that sufficient incriminating material is available on the record against the accused/respondent, who were found guilty of the charge during the course of investigation and the learned trial court was not justified in acquitting the accused/respondents after recording evidence. Learned counsel next argues that the learned trial court while acquitting the accused/respondents erred in law, which is liable to be rectified.
4. Contrarily, learned D.P.-G. Has vehemently opposed the contentions raised on behalf of the appellant, It is contended that the learned trial Court rightly observed that in his application the complainant/appellant levelled allegations against quite different set of accused, who were declared innocent, whereas, no such allegation was levelled against the accused/respondents Nos.1 to 3. It is also argued that there is no material on the record to prove prosecution case against the accused/respondents under sections 116, 409, 109, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, therefore, the learned trial court was well justified in allowing the application under section 249-A, Cr.P.C. And thereby acquitting the accused/respondents.
Moceover, learned D.P.-G. Submits that after having been acquitted of the charge, the accused/respondents have double presumption of innocence at their credit and the order passed by the learned trial court being based on very cogent reasons, the same does not attract interference by this Court.
5. Arguments advanced pro and contra have been heard. I have also gone through the record available on file especially the reasons advanced by the learned trial Court.
6. There is no cavil to this proposition that in the complaint/application filed by the complainant before the Director-General, Anti-Corruption Establishment, Lahore, which made the basis of the instant case, he had levelled certain allegations against Waheed Butt, Muhammad Jameel Inspector and Malik Abdul Wahid that Abdul Wahid while giving huge bribe to Waheed Butt, Chief Town Planner, Naveed Town Planner and Jameel Inspector, firstly got misplaced the site plan of the premises of the complainant and thereafter dismantled the building of the complainant and names of the present accused/ respondents are nowhere mentioned in the same. However, during the course of investigation conducted by Sardar Yar Muhammad Dogar,Assistant Director, the said accused persons were declared innocent and names of Mohsin Khan and Israr Bhatti/responden were recommended for judicial proceedings in the report of Technical fficer. Admittedly in the report submitted before the learned trial court under section 173, Cr.P.C., against Israr Bhatti, Mohsin Khan and Abdul Wahid, the prosecution in the schedule of prosecution witnesses had mentioned the names of Saeed Anwar Hayat, complainant, Muhammad Yasin Naib Qasid, Sardar Yar Muhammad Dogar AD(I), Investigating Officer, Adnan Mehmood Rathore, AD(I), Sohail Nawaz constable and Tariq Maqsood Inspector/Investigating Officer. If statements of the above prosecution witnesses recorded under section 161, Cr.P.C. Are seen with naked eye, it is nowhere mentioned that Israr Bhatti and Mohsin Khan. Accused/respondents with the connivance of Abdul Wahid, had misappropriated the site plan and the file of the property of the complainant or dismantled his building. When in their statements recorded before the Investigating Officer, the prosecution witnesses had not levelled any allegation against the accused/respondents, how the A charges under sections 161, 409, 109, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, could be proved at trial.
7. So far as the contention of learned counsel for the appellant that the learned trial Court ought to have recorded the evidence before passing the impugned order is concerned, it is settled principle of law that there is no impediment in the way of the trial Court to acquit the accused at any stage of the case after or prior to the framing of charge. Towards this end, the trial Court is free to look into the police papers, other material and the legal aspect of the case as is the case in hand.
Guidance in this regard is sought from the ratio decidendi of august Supreme Court of Pakistan in the case of Zahoor-ud-Din v. Khushi Muhammad and 6 others (1998 SCM R 1840).
8. It is also settled principle that after acquittal of the charge, the accused have double presumption of innocence at their credit and until and unless obtrusive mistake has been committed by the learned trial court apparent on the record, the same should not be interfered.
There is no glaring mistake or misreading or non-reading of evidence committed by the learned trial Court floating on the record compelling this Court to interfere in the impugned order. Moreover, learned counsel for the appellant/complainant has failed to point out any illegality/infirmity in the impugned order calling for interference by this Court. I feel no hesitation in holding that the instant appeal is devoid of force, which is accordingly dismissed.