' This appeal against acquittal has been filed by the State against the Order dated: 13.01.2012, passed by the Special Judge Central, Lahore, whereby respondent/Syed Aamir Shabbir was acquitted from the charges leveled against him in case FIR No. 7/2010 dated:26.3.2010, offences under Section 161, PPC read with 5(2)47 PCA, registered at Police Station FIA ACC, Lahore, by accepting his application filed under Section 265K, Cr.P.C.
2. Brief facts, of the case are that the complainant/Mian Asim Shehzad moved a complaint Ex.PA before the Deputy Director FIA Anti-Corruption Circle Lahore, for conducting a raid, stating therein that he was operating a cargo service in the name of "A to Z Cargo", which transported the local manufactured and imported goods from Lahore to Rawalpindi, but recently he was being harassed by the Customs Intelligence Officials, who were demanding monthly bribe amounting to.
Rs:30,000/- from the complainant but on refusal of paying the bribe money the complainant was now being threatened by the Customs officials that his cargo service wOuld be shut down and the articles transported by his cargo service would be confiscated.
3. The complaint, filed by the complainant, was accepted by the FIA and presented before the Sessions Judge, Gujranwala, an order was passed, deputing Muhammad Ahmad, Assistant Director FIA to supervise the raid on 26.3.2010 at 10:00 pm. The complainant was then produced before Mr. Jamil Ahmad A.D. FIA ACC, where his statement was recorded. A plan was chalked out by the FIA officials, according to which Aamir Shabbir/respondent would be called to the Railway Station Gujranwala by the complainant ,Mian Asim Shehzad, where bribe money would be handed over to the respondent Arnir Shabbir, so that the raiding party could apprehend the respondent/Aamir Shabbir red-handed. As per plan, the complainant went to the Railway Station Gujranwala. After a while, the respondent/Aamir Shabbir arrived; as the complainant handed over the bribe money to the respondent/Aamir Shabbir, the raiding party apprehended the accused/respondent. Recovery memo. Ex-PB of the bribe money was prepared at the spot and an FIR No. 07/10 dated 26.03.2010 was chalked out, under Sections 161. P.P.C. Read with Section 5(2) Prevention of Corruption Act, 1947 was registered against the respondent/Aamir Shabbir only and the other Customs Intelligence Officers were not nominated as accused in the aforementioned FIR.
4. After framing of the charge against the respondent/accused, the complainant of the FIR appeared before the Special Judge, Lahore and rendered his statement on oath exonerating the respondent/accused. As the Crucial witness of the case that is the complainant of the FIR did not support the prosecution case, the trial Court accepted the application moved for acquittal by the respondent/accused and acquitted the respondent/accused, holding that even if the remaining witnesses were called and their statements recorded, the probability for conviction of the respondent accused was bleak. The application. Moved u/S. 193, P.P.C. By the State for taking action against the Complainant for not supporting the Prosecution and exonerating the accused was also dismissed.
5. Learned Standing Counsel, representing the State, has argued that the impugned order being illegal, be set-aside, as the trial Court should have continued with the trial and summoned the remaining witnesses because the respondent was arrested red-handed by the raiding party of the FIA. Further argued that the trial Court erred by not accepting the application filed under Section 193, P.P.C. Against the complainant for not supporting the prosecution case and turning hostile. The Counsel relied upon 2002 SCM R 32 Tariq Mehmoad vs. The State, PLD 1982 SC 291 Khair Din vs. State, 1996 P.Cr.L.J 1223 Sajjad Hussain Shah vs. The State. 1989 P.Cr.L.J 1438 Muhammad Naeem Akhtar vs. The State.
6. Arguments heard and record perused.
7. Perusal of the available record reveals that the statement of the complainant/Asim Shehzad was recorded as PW-1 on 20.12.2011 on oath before the learned trial Court, in which he has stated that he had no complaint against Aamir Shabbir/respondent. On which he was declared hostile and was cross-examined by the A.D Legal for the State. During his cross-examination, the complainant denied the filing of the application against the respondent/Aamir Shabir, EX.PA, and stated on oath that his signature and thumb impression were obtained on blank papers. The complainant even denied that any bribe money was handed over to the respondent in his presence, and explained that though the recovery memo. Ex. PB and Supplementary statement had his signatures, they were too taken on blank papers. The complainant admitted that he had sworn an affidavit EX.DA in favour of the accused as well. The actual grievance of the complainant was against the senior officials of the Customs Department. The respondent though serving in the intelligence and investigation wing of the Customs was too junior having no powers. Hence it is evident that the respondent was made a scape goat, while no action was taken against the senior officials of Customs Department, who were let off.
8. The case laws relied upon by the Standing Counsel for the State are distinguishable and do not apply to the case in hand. Even otherwise it is a settled principle that precedents in a criminal case cannot be applied strictly, as each criminal case has its own peculiar facts and circumstances. In none of the cases cited by the Counsel, it was held that a Special Judge under the 'Prevention of Corruption Act (II of 1947) had no jurisdiction to entertain an application to acquit an accused at any stage. The Counsel for the State has argued that the Special Judge was a Magistrate therefore an application under Section 249-A, Cr.P.C. Should have been moved and an application under Section 265-K, Cr.P.C. Was not maintainable. Hence, the case be remanded.
9. The Pakistan Criminal Law Amendment Act, 1958, has clearly laid down, the jurisdiction, powers and procedure of trial conducted by the Special Judge, Under Section 6(1) of The Pakistan Criminal Law Amendment Act, 1958 the Special Judge would be deemed to be a Court of Session. And under Section 6(3) of The Pakistan Criminal Law Amendment Act, 1958, "The provision of Chapter XX of the Code of Criminal Procedure, 1898 shall apply to trial of cases under this Act in so far as they are not inconsistent with C the provisions of this Act," meaning that the Special Judge will have the powers of a Magistrate as defined in Chapter XX of the Code of the Criminal Procedure Code, 1898.
10. No objective will be served if the case is remanded to the trial Court just to correct the section from 265K Cr. P.0 to Section 249A, Cr.P.C. It cannot be ruled out that 265K, Cr.P.C. Is a typographical error. Even otherwise the powers under Section 249-A, Cr.P.C. And 265K, Cr.P.C. Are the same, only difference being that 249-A, Cr.P.C. Is exercised by the Magistrate while 265-K, Cr.P.C. Is exercised by the Session Judge. The State Counsel has not denied that the Special Judge has ample of' powers under Section 249-A, Cr.P.C. To acquit an accused at any stage.
11. The Complainant, being the material witness of the case has stated that he did not witness any raid and his signatures were taken on blank papers, then under such circumstances continuing with the trial, would be a futile exercise. It cannot be presumed that the complainant gave false evidence in Court, as factually the Complainant had no grievance against the respondent and his actual grievance was against the Senior Officials of Customs. Hence there is no illegality in the impugned Order dated 13.01.2012 passed by the Special Judge (Central) Lahore.
12. As set forth and deliberated upon, the instant appeal is dismissed in limine.