Muhammad Shaft has filed this revision petition to assail the judgment of the Special Judge (Central), Lahore, dated 13th of March, 1982 whereby in a case re: State v. Muhammad Younis and Dr. Naseer A. Sheikh, an absconder, under section 162, P.P.C., Muhammad Younis on his application filed under section 249-A, Cr.P.C. Read with section 265-K, Cr.P.C. Was acquitted.
2. On 30th of September, 1977 on the report of the petitioner, a case was registered with F.I.A. Lahore under sections 161, 162, 163 and 164, P.P.C. Read with section 5 of the Prevention of Corruption Act against Muhammad Younis respondent No. 1 and an absconder namely Dr. Naseer A. Sheikh who was at the relevant time serving as Director-General, Health, Government of Pakistan. The case of the petitioner was that he was working as Manager of Eastern Trade and Distribution Company, Mcleod Road Branch, Lahore and also as Manager, Nabi Qasim Industries, Karachi. Faqir Muhammad P.W. 4 was the Managing Director of the Nabi Qasim Industries. Faqir Muhammad P.W.
4 came to Lahore on 29th of June, 1977 and informed the petitioner that in spite of his best efforts, he had not been able to obtain drug manufacturing licence for Nabi Oasim Industries, Karachi from Dr. Naseer A. Sheikh, the absconding accused but Muhammad Younis, respondent No. 1 had assured him that he would get him the licence provided he paid Rs. One lac as bribe for Dr. Naseer A. Sheikh. He further asked the petitioner to arrange Rs.90,000 as he had with him only Rs.10,000. The petitioner contacted Abdul Majid P.W. 5, Managing Director of the Eastern Trade and Distribution Company, Karachi to arrange the requisite amount. Abdul Majid P.W. 5 accordingly sent the petitioner a cross cheque Exh. P.W. 7/2 for Rs.40,000 and a bank draft Exh. P.W. 7/1 for Rs. 50,000 drawn on the Muslim Commercial Bank, Vault Branch, Lahore. The petitioner and Faqir Muhammad P.W. 4 encashed the cheque and the draft on 4th of July, 1977. They approached Muhammad Younis, respondent No. 1 and handed over to him at his shop the amount of Rs. One lac in a brief- case. The respondent assured them that he had already talked to Dr. Naseer A. Sheikh and he would issue the requisite licence for Nabi Qasim Industries, Karachi.
3. After investigation a challan was submitted against Muhammad Younis, respondent showing Dr. Naseer A. Sheikh as an absconder. The respondent was charged under section 162, P.P.C. To which he pleaded not guilty.
4. The prosecution in support of its case examined seven witnesses and closed its evidence on 31st of January, 1982. Meanwhile, an application had been filed on 6th of October, 1981 on behalf of Muhammad Younis, respondent under section 249-A read with section 265-K, Cr.P.C. After the prosecution had closed its evidence, the learned trial Court took up the application and after perusing the evidence on record and hearing the arguments of learned counsel for the parties passed the impugned order on 30th of March, 1982 accepting the application of the respondent and acquitting him with a direction that the record should not be I destroyed till Dr. Naseer A.
Sheikh, the absconder was arrested and put to trial.
5. The reason which prevailed with the learned trial Court in acquitting respondent No. 1 was the discrepancy between the statements of the petitioner as P.W. 3 and Faqir Muhammad P.W. 4 and the testimony of Muhammad Afzal B P.W. 7, a cashier of the Muslim Commercial Bank, Vault Branch, Lahore. The petitioner deposed that he withdrew the amount of Rs.90,000 from the Muslim ` Commercial Bank, Vault Branch, Lahore on the basis of the cross cheque for Rs.40,000 and the bank draft for Rs.50,000 and paid the same to Ch. Faqir Muhammad P.W. 4 who put the same in a brief-case and afterwards both of them went to the respondent and Faqir Muhammad in his presence paid the amount of Rs. One lac to the respondent. Muhammad Afzal P.W. 7, however, stated that on 4th of July, 1977, an amount of Rs.90,000 was drawn from his bank by one M. H. Khan, Proprietor of M/s. Asian Chemical Company, Lahore on self cheque No. 938184 (Exh. P.W. 7/3) issued by the petitioner who had endorsed the same on its back as "please pay to M/s. Asian Chemical Company, Lahore". The prosecution could not explain this discrepancy which undoubtedly militated against the veracity of the prosecution case. Learned counsel for the petitioner too has been unable to give any explanation whatsoever for this very serious defect in the prosecution case.
6. The only contention which has been pressed into service by learned counsel for the petitioner is that the trial Court was not justified in invoking the provisions of sections 249-A and 265-K, Cr.P.C.
After the prosecution had closed its evidence and it ought to have decided the case after recording the statement of accused under section 342, Cr. P.C. This contention is untenable as the provisions of section 249-A or section 265-K, Cr.P.C. Do not prescribe any particular stage for the application thereof.
7. Learned counsel for the petitioner also feels aggrieved by an observation of the trial Court that the "prosecution has not come to the Court with clean hands and has abused the process of law".
According to him, there is no evidence on record to reflect that the prosecution was launched with unclean hands, Learned counsel for the State has not controverted this contention of learned counsel for the petitioner. Learned counsel for respondent No. 1, however, has referred to the suggestion which was put in cross-examination to Muhammad Shafi P.W. 3, Faqir Muhammad P.W.
4 and Abdul Majeed P.W. 5 that Muhammad Younis, respondent No. 1 was involved in the concocted case due to business rivalry. They denied the suggestion. This sole suggestion which was repudiated was not sufficient in the absence of any supportive evidence to raise an inference that the prosecution had come to the Court with unclean hands.
8. In the result, I find no valid reason for setting aside the acquittal of the respondent and dismiss this revision petition.
S.A./M-1386/L