This criminal appeal by the State arises from the judgment of learned Senior Special Judge, Anti Corruption, Lahore, whereby he, on 25-7-1984 acquitted Mian Khan and 3 others, the respondents Nos. 1 to 4 of the charges under section 420/419/4681471/201, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
2. The facts, briefly, are that a case under sections 420, 419, 468, 471 and 201, P.P.C. Read with section 5(2)47 was registered against Mian Khan and 3 others, respondents Nos. 1 to 4 on the allegations that they dishonestly and fraudulently got the land of Akbar Ali and Barkat Ali P.Ws. Transferred in the name of Manzoor Hussain respondent No.4 by producing a fake vendor before the Registrar.
After investigation, the challan was submitted in the Court of Senior Special Judge Anti-Corruption, Lahore, who acquitted the respondents under section 249-A, Cr.P.C. Mainly on the ground that the suit filed by Barkat Ali and Akbar Ali against Manzoor Hussian accused /respondent No.4 for declaration of their title over the disputed land was dismissed by Civil Judge, Lahore and as such; there was no probability of the accused being convicted.
3. Learned counsel for the appellant submitted that the judgment passed by the learned Civil Judge which has been relied upon by the learned Senior Special Judge, Anti-Corruption has not attained finality; that the judgments in civil suits are not binding in criminal proceedings and that the learned Senior Special Judge was not competent to requisition the record of the civil suit.
Conversely, the learned counsel for the respondents have supported the judgment of the trial Court.
4. I have considered the submissions made by the learned counsel for the parties with care. 1 feel persuaded to agree with the learned counsel for the appellant. I find that the case was at the stage of framing of the charge when it was brought to the notice of the Court that suit filed by Barkat and Akbar Ali against Manzoor Hussain, for declaration of their title over the land, subject-matter of the prosecution of the accused, had been dismissed. On this, the learned Senior Special Judge requisitioned the record of the civil suit from the Court of Civil Judge and on examining the same, acquitted the accused /respondents of the charges on the basis of the judgment and decree passed therein. I feel that the learned Senior Special Judge was not authorised, under the law, to summon the record of a suit from the Court of learned Civil Judge. The same could only be sent for by the Court of appeal or revision. The learned Civil Judge should not have sent the record to the learned Senior Special Judge on the requisition of the latter and should have reported the matter to the High Court. The record was foreign to the file of the learned Senior Specie] Judge, so he could not have based his finding on the record summoned by him from the civil Court. Furthermore, the judgment and decree passed by the Civil Judge was opened to appeal and revision, etc. And had not attained the finality. It was also brought to the notice of the learned Senior Special C Judge that the appeal had been filed against that judgment and decree and was subjudiced before the Additional District Judge. Strangely enough the learned Senior Special Judge, Anti-Corruption, relying on judgment and decree of the Civil Judge, has held that there was no probability of the accused being convicted in the case. While discussing the weight to be attached to the judgment and decree of the Civil Judge which was sub judice before the appellate Court, the learned Senior Special Judge has stated:-- "On behalf of the prosecution it was contended that the appeal has been filed against this decision.
It has been admitted by the Additional District Judge and a stay order has been issued. The stay order is to the effect that status quo in respect of possession of the disputed land would be maintained in the meanwhile, it means that the possession would remain with the complainants if they were in possession. The stay order does not mean that the finding of the Civil Judge stands nullified. However, the possibility cannot be ruled out that the appeal may be accepted but in that case the aggrieved party may go to the High Court in revision or appeal or the litigation may prolong upto the Supreme Court. I am of the view that the proceedings of this case can be stopped without pronouncing any judgment either of acquittal or conviction under section 249, Cr.P.C. But it cannot be said as to how many years would be consumed for a final decision in the civil suit and.
So it is a fit case where this Court should use its discretion under section 249-A, Cr.P.C. In the circumstances, I see no probability of the accused being convicted in this case, I, therefore, acquit all of them."
I feel that the observations given by him that: "However, the possibility cannot be ruled out that the appeal may be accepted but in that case the aggrieved party may go to the High Court in revision or appeal or the litigation may prolong upto the Supreme Court." were unwarranted and called for. For all these reasons I am of the view that the judgment of acquittal passed by the learned Senior Special Judge, Anti-Corruption is not only illegal but also more than perverse.
5. For what has been said above, the appeal is allowed and the order of acquittal of the respondents is set aside. The case is sent to the learned Senior Special Judge, Anti-Corruption for retrial in accordance with law.
6. Before panting with the judgment I would like to warn the learned Senior Special Judge Anti- Corruption, Lahore for uncalled for, unwarranted and objectionable observations made by him relating to a matter which was sub judice before the Court of appeal and of its further disposal by the superior Courts. He shall be careful in future.