1. Appellant Hazoor Bakhsh has filed this acquittal appeal under section 417(2a), Cr.P.C. Against the impugned order, dated 24th April, 2002, of learned Special Judge, Anti-Corruption (Provincial), Sukkur, which was passed on the application of respondent No,1 Riaz Ali Abbassi, Ex-S.D.M., under section 249-A, Cr.P.C., wherein he had prayed for his acquittal, before the completion of the trial of Direct Complaint No,28 of 2001, filed by appellant/complainant against respondents Nos.1 and 4, under sections 161, 343, 337-A, P.P.C., read with section (2) of Prevention of Corruption Act (II of 1947). The facts giving rise to the filing of this Criminal Acquittal Appeal are to the effect that the appellant/complainant asserted that the then District Magistrate/Deputy Commissioner, District Ghotki, had issued orders for his detention .Under the provisions of Maintenance of Public Order Ordinance, in the year 2000, against which he had filed Constitutional Petition bearing No,D-180 of 2000, before the Principal Seat of this Court, whereafter he was released from such a detention, and then filed a suit for damages against the then Deputy Commissioner/District Magistrate, Ghotki and others in the Court of learned Senior Civil Judge, Ubauro, it is further contended that the defendants f the said suit, including S.H.O., Daharki Police Station then started applying pressure upon him, with threats of dire consequences to make him withdraw the said suit and ultimately in the month of February, 2001, he was illegally arrested by police officials of Daharki Police Station (as asserted), and was kept in illegal confinment and, therefore, a habeas corpus petition was filed before this Court, and that in pursuance of such an order, the Commissioner (appointed by this Court) visited the said Police Station and found the appellant/complainant in the illegal detention of the police officials; serious remarks were passed by this Court (in the said Criminal.
2. Miscellaneous Application bearing No,D-33 of 2001) pertaining to the conduct and behaviour of the respondents thereof; it is further asserted that in order to save themselves from the probable legal action against themselves, the co-accused of the said Direct Complaint prepared/forged-out documents with an active connivance of respondent No,1, who was then posted as Assistant Commissioner/Sub-Divisional Magistrate at Mirpur Mathelo, with a view to frustrate the proceedings of the said habeas corpus petition, then pending in this Court, by attempting to show that the appellant/complainant was being kept in legal custody viz. Against the execution of bailable warrants of arrest, issued by respondent No,1 on the report submitted to him by the S.H.O.
3. Of Daharki Police Station under the provisions of Sindh Crimes Control Act. It is further asserted that this Court recorded an observation, "such documents did not appear to be genuine and had been prepared to defeat the judicial process"; appellant/complainant was directed to be set at liberty and the criminal miscellaneous application was disposed of accordingly, whereafter the appellant/complainant filed the said direct complaint in the learned trial Court, wherein his statement under section 200, Cr.P.C. Was recorded and a preliminary inquiry was directed to be held by the Circle Officer, Anti-Corruption Establishment, who submitted the report before the learned trial Court and, on 29-6-2001, the Direct Complaint was registered for regular trial, but then the trial Court entertained an application dated 3-8-2001, under sectioh 249- A, Cr.P.C., moved by the respondent No,1, which was heard and was allowed vide the impugned order, whereby the respondent No,1 stands acquitted. Hence this criminal acquittal appeal. I have heard Mr. Saifuddin Shah, learned counsel for the appellant/complainant, Mr. Nizamuddin Brohi, learned State Counsel and Mr. Dost Muhammad Bullo, learned counsel for respondent No, 1 . The impugned order passed by learned trial Court is based on case law, reported in 1999 PCr.LJ 137, 1993 SCM R 523 and 1998 SCM R 1840.
4. With utmost respects and regards the facts and circumstances of the above-cited cases are distinguishable from those of the case in hand inasmuch as, inter alia, the learned trial Court vide order dated 29-6-2001 had recorded a finding that a prima facie case was made out by apellant/complainant for registration of his Direct Complaint for regular trial btu even then, without recording evidence, allowed the application of respondent No,1 vide impugned order dated 24-4- 2002, by recording following observations:-- "In view of the facts of the present case, I am satisfied that there is no evidence with the complainant to prove that when accused No,1, S.H.O., Police Station, Deharki has presented a report against the complainant for taking action under section 14 of the Sindh Crimes Control Act, accused/applicant was having any knowledge about the institution of C.P. And that the process of the Court of S.D.M. Was being obtained for purpose of cheating and making a defence in their favour. All the act, which has been done by the accused/applicant being S.D.M. Has been done in good faith and as per routine, on the contrary the applicant has been cheated by accused No,1, Loung Khan Shar, S.H.O. Police Station Deharki. Therefore considering the above case-law, I am of my considered opinion that in present circumstances there was no probability of the accused being convicted, I therefore, while allowing present application under section 249-A, Cr.P.C. Acquit the accused namely Riaz Ali Abbasi from the charge, his bail bond stand cancelled and surety discharged".
5. It is now a settled principle of law that the decision passed in a precedent case is available for reliance only to the specific facts and circumstances of such individual case, and that it is not necessary that the same may also be applicable to the other cases, which may follow under very same provision of law (involved in the subsequent case). Furthermore, the case in hand arose was filed after order dated 7-3-2001 was passed by this Court in Criminal Miscellaneous Application No,D-33 of 2001, relevant part whereof reads as follows:- "In pursuance of the order dated 6-2-2001, Mr. Hidayatullah A. Avesi, Reader of this Court was appointed as Commissioner by this Court, has inspected the Police Station, Daharki and enquired from the Duty Incharge, namely Abdul Sattar and apprised him about the order of the Court and in consequence of the direction he took the Roznamcha from the A.S.-I. Qazi Abdul Sattar and verified the contents of Roznamcha, but from the perusal of the said Raznamcha there was no entry in respect of the detention of the detenu. The said Commissioner enquired from the Duty Incharge about the involvement of the detenu. A Report No,4 dated 6-2-2001 was shown to the Commissioner, which was addressed to the S.D.M., Mirpur Mathelo. From the perusal of the said report, Commissioner had verified that no date and time is given for the preparation and presentation of such report in the Court. Tice Commissioner also enquired from the said police official about any entry in the Roznamcha in respect of Report No,4 dated 6-2-2001, but no copy of memo. Of arrest was shown to him. The detenu has been produced by the A.S.-I. Qazi Abdul Sattar in the Court and placed on record a report alongwith other documents, which reveals that after inspection of the police station, by the Commissioner, the S.H.O. Has submitted Karwai No,4 of 2001 under section 14 of Sindh Crimes Control proceedings against the detenu and that the bailable warrants also prepared memo. Of arrest against the detenu. After the recovery of the detenu by the said Commissioner, the S.D.M., Mirpur Mathelo has received the complaint under Sindh Crimes'
6. Control Act, being proceedings No, 4 of 2001 and issued bailable warrants.
7. "Apparently, all these documents have been fabricated by the S.H.O. As well as by the S.D.M., Mirpur Mathelo after the recovery of the detenu.
8. "Let notice may be issued to the S.H.O., Deharki Police Station and to the S.D.M., Mirpur Mathelo with direction to appear in person before the Court and explain reasons for such fabrication on the next date of hearing.
9. "The detenu was recovered from the lock-up of the Police Station Deharki and at the time he was not shown arrested in any case nor any document was shown to establish his arrest. Therefore, the detention was illegal at the time of recovery and after raid the police had released the detenu after obtaining bailable warrants from the Court of S.D.M./Tribunal.
10. "Since the detenu is not detained at present with respondent and he apprehends that he will be involved in other proceedings by the official respondents due to the filing of a civil suit against the respondent, the respondents may not initiate any action against the present detenu unless any crime is registered be brought to the notice of the Court till the next date of hearing. The matter may be placed before the Division Bench of this Court on 14-2-2001 for further orders."
11. Observations were recorded by this Court that, " S.H.O. Has submitted "Karwai" 4/2001 under section 14 of Sindh Crimes Control proceedings against the detenu and got the bailable warrants issued and also prepared memo. Of arrest against the detenu after recovery of the detenu by the said Commissioner, the S.D.M., Mirpur Mathelo has received complaint under Sindh Crimes Control Act, being proceeding No,4 of 2001 and issued bailable warrants ..... Apparently, all these documents have been fabricated by the S.H.O. As well as by the S.D.M., Mirpur Mathelo, after recovery of detenu ....", whereafter the appellant/complainant specifically alleged in his direct complaint that after he filed a suit for damages in the Court of learned Senior Civil Judge against the Deputy Commissioner/District Magistrate, Ghotki, S.H.O., Police Station Daherki, and others, he started getting threats at their hands to withdraw the said suit, otherwise he would be put to face trouble; on the face of such allegations, read with above-quoted observations recorded by this Court, the learned trial Court was under a heavy duty to have afforded full opportunity to the appellant/complainant to prove his said allegations and then to record a finding, with proper reasons, if such allegations stood proved or not? If yes; then the trial Court would be under further heave duty to draw a reasonable presumption against the respondents (by taking into consideration all necessary evidence) if the then S.D.M. Acted in collusion with the S.H.O. Of the said Police Station, while issuing the bailable warrant of arrest against the appellant/complainant, who has, further based his case on the assertion that when the Commissioner, appointed by this Court, visited the Police Station Daharki on 6-2-2001, he found appellant/complainant in the illegal detention at the said Police Station, while no record or entry was available in the station diary, which could justify the detention of the appellant/complainant, and the Commissioner also submitted in his said report, "only a simple copy of report, addressed to the respondent No,1 was shown to the Commissioner, by the Incharge of Police Station without there being any material available to show as to whether or not such a report was actually submitted before the respondent No,1, and that nothing was available to indicate that respondent No,1 had already issued bailable warrant of arrest of the appellant/complainant, and if he was arrested in execution thereof".
12. Case-law 'relevant for the questions involved in this case would be (1) 1999 PCr.LJ 921, (2) 1999 M LD 577, (3) 2000 PCr.LJ 1169, (4) 2000 M LD 586, (5) 2000 PCr.LJ 886, therefore burden lies on respondent No,1 to prove that he all along discharged his official duties bonafidely and without any collusion with any body else, by strictly proving that he had legally entertained such a report from the S.H.O., Daharki, and by recording all necessary evidence, he came to a legal conclusion that a bailable warrant of arrest necessarily required to be issued against appellant/complainant. It is now well-settled principle of law that the Magistrate has first to record necessary evidence in support of the allegations of the S.H.O. Of Police Station to arrive at a conclusion if a prima facie case existed to make it necessary for issuance of a warrant of arrest against the person, complained against under the provisions of Sindh Crimes Control Act; if no such evidence was available either with the police or not produced before the Magistrate, then issuance of such warrants of arrest would be illegal; respondent No,1 has further to prove that after recording all such relevant evidence, he had passed a legal and speaking order for the purpose of issuance of such warrant of arrest against the appellant/complainant by fully replying to the allegations stated in para. No,12 of the direct complaint, which read as under:-- "That the allegations of the complainant were supported by the affidavits on oath and in rebuttal the accused simply submitted their statements which had no legal value in the eyes of the law, as held by the Honourable High Court in its various decisions, therefore it is presumed that the words of the complainant were remained unchallenged."
13. It is also a well-settled principle of law that the presumption of regularity and correctness of official act is attached to such acts, but such a presumption is rebutable, and the same can be proved to have not been so carried out; the trial Judge has not discussed even a single allegation of the appellant/complainant in the impugned order or even a single document relied upon by the complainant in support of his allegations made in the direct complaint and such a slipshod order has thereby adversely affected the efficiency of learned trial Judge. In a case reported in 1998 PCr.LJ 1030, this Court passed the following observations:-- "This is too early a stage to quash the proceedings and in my considered view this all amounts to stifling' the prosecution at an early stage without giving an opportunity to the complainant to bring his case on record. No infirmity or illegality was shown by the applicants in the evidence so far brought on record during preliminary enquiry. Mere technicalities, which, in my opinion do not vitiate proceedings, will not warrant interference of this Court: under section 561-A, Cr.P.C. I am fortified in my view by the case Raja Haq Nawaz v. Muhammad Afzal PLD 1965 SC 354 where following view was held by Honourable Supreme Court:- "Quashment of proceedings at so early a stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. It is necessary that these cases should by examined further, to ensure that the course of evenhanded justice has not been prejudiced."
14. "For further reference (Ikramullah Khan v Muhammad Yousuf and 2 others 1984 PCr.LJ 354).
15. "As a result of above findings, this petition under section 561-A, Cr.P.C. Stands dismissed in limine alongwith the miscellaneous application. "
16. In a case reported in 2000 PCr.LJ 752, his lordships Mr. Justice Hamid Ali Mirza (as his lordship then was) observed at page No,574: "The charge could not be said to be groundless within the meaning of section 249-A of Cr.P.C., if the complainant/prosecution is not given opportunity to prove the allegations levelled in the F.I.R. And it could not also be said that there is no probability of conviction of the respondent/accused' because the recovery Mashirs are allegedly interested persons without they being examined by the trial Court and without there being any evidence to that effect. Reference may be made to Karachi Electric Supply- Corporation v. Naseer Ahmed 1986 PCr.LJ 1684 Mid Shaukat Ali v. Rana Muhammad Ishfaq and others 1992 ALD 243(1). There has been no material/evidence before the trial Court to justify the passing of impugned order of acquittal by the trial Court, consequently, it has resulted in miscarriage of justice so also being illegal, is set aside and appeal is allowed with the directions to the trial Court that respondent/accused be retried and matter be disposed of in accordance with law." In another case reported in 1999 M LD 2549 Lahore, it was observed at page 2553 as under:-- "12. As regards the order of acquittal, dated the 12th October, 1988, passed by Magistrate 1st Class, Gujranwala, there appears no doubt that the learned Magistrate had, with unnecessary haste, concluded the trial under section 249-A, Cr.P.C. On 21-6-1987, it had been observed by his predecessor that there was sufficient material available against respondents Nos.1 to 4 to proceed against them under the provisions of sections 419, 420, 468 and 471, P.P.C. The respondents were, consequently, summoned for facing trial for the aforesaid offences. Admittedly, thereafter, no evidence was recorded nor any material was brought on the record for reevaluation of the merits of the case. In absence of any fresh material on the record, the learned Magistrate (may be a different Magistrate than the one who had issued the summons against the respondents on the 21st June, 1987). Could not arrive at a different conclusions and thereby acquitted the respondents.
17. As held in Saleem Anjum's case (supra). The High Court relying upon Malik Muhammad Ibrahim v.
18. The State (1985 PCr.LJ 929) (D.B) had held that the trial Court could not pass the order of acquittal without bringing on record the fresh material as review is not permissible under the provisions of Code of Criminal Procedure. The 'similar view was taken in Muhammad Rafique v. Mst. Nasim Akhtar (1985 M LD 1048), where the Magistrate after summoning the accused in the complaint case had acquitted them under section 249-A of the said Code. It is, thus, clear that the learned Magistrate had acted mechanically and has acquitted the accused without bringing any fresh material on record." In another case reported in 1993 PCr.LJ 2380, the order under section 265-K, Cr.P.C. Was set aside with the following verdicts:-- "MIR HAZAR KHAN KHOSO, J.---This appeal is directed against the judgment dated 10-2-1991 whereby the learned Additional Sessions Judge, Chiniot without giving opportunity to the petitioner to produce his evidence had acquitted the respondents of the charge under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinarce. It may be pertinent to observe that earlier while relying on the evidence of the prosecution witnesses during preliminary inquiry the learned Additional Sessions Judge had issued process against the respondents. Then considering the same evidence he acquitted the respondents of the charge. The learned Additional Sessions Judge, Chiniot should have given opportunity to the complainant to produce evidence and then passed appropriate order. The learned counsel for the State does not support the impugned judgment. The judgment dated 10-2-1991 is set aside and the case is remanded to the learned Additional Sessions Judge, Chiniot for affording opportunity to the prosecution to produce its evidence and dispose of the case according to law on merits."
19. Accordingly, this criminal acquittal is hereby allowed, the impugned order passed by the learned Special Judge, is set aside and the case is remanded to the learned trial Court with a direction to afford full opportunities to both sides of the case to produce their respective evidence and to hear them at great length to decide the case, and not otherwise. Appellant is directed to appear before the learned trial Court on 25-11-2002. A short order was passed to the above effect on 12-11-2002 and above are the reasons for the same.