1985 P Cr (PLP)

‑‑‑Ss. 123 & 162‑‑Prevention of Corruption Act (II of 1947), S.5‑ Production of evidence‑‑File in corruption case not produced by Director of Anti‑Corruption who withheld permission to produce same and claimed privilege under Ss. 123 & 162, Evidence Act, 1872‑‑Special Judge Anti- Corruption although holding, that file did not relate to affairs of State yet not feeling necessity of compelling Director Anti‑Corruption to submit case for purpose of examining defence witnesses‑‑Order of Special Judge Anti‑Corruption whereby he did not feel perusaded to compel Director, set aside and Director Anti‑Corruption directed to produce police file before trial Judge for purpose of examination of defence witnesses as file related to ordinary criminal case and not to affairs of State. Sh. Nisar Qutab for Petitioner. Muhammad Sharif Uppal for the State. Date of hearing: 4th July, 1984. This criminal revision arises from the order of the learned Special Judge, Anti‑Corruption, Lahore, whereby he on 8‑5‑1984 while holding that the Director Anti‑Corruption Establishment could not have claimed privilege under sections 123 and 162 of the Evidence Act with regard to police file of F.I.R. No. 2/82 under sections 379/380/409, P.P.C. and section 5 of the Prevention of Corruption Act, 1947 and could not withheld permission to give evidence derived from the file, because the file did not relate to the affairs of , the State within the meaning of section 123 of the Evidence Act, refused its production before the Court. The learned Special Judge in para. 5 of his judgment stated that:‑ "but the crucial question that has come to my mind now is whether the non‑production of the record by the prosecution would adversely affect the accused in this case who has prayed for the production of the same. At the time the accused submitted the list of D.Ws., this aspect was not examined. After study of the file now, I have come to the conclusion that the insistence of the accused to produce file of case F.I.R. No. 2 would not apparently help him in any manner. Besides, the duty of the Court is to determine the respective stands of the parties i.e. prosecution as well as the accused in the light of the charge. The charge, as stated earlier, is that the accused accepted Rs.1,000 as illegal gratification. Assuming that the prosecution is unable to bring the case property before this Court what repercussion adverse or otherwise it would have on the fate of the case should not be the headache of the accused. I, therefore, even though consider the privilege claimed as uncalled for, do not feel the necessity now to compel the Director Anti‑Corruption Establishment to submit the case file of case F.I.R. No. 2 before this Court for the purpose of examination of D.W. 8 Mr. Muhammad Khan."

2. After hearing the learned counsel for the parties I find that the trial Court had already summoned Muhammad Khan as a defence witness; that the Director Anti‑Corruption Establishment did not care to challenge the order of the learned Special Judge Anti‑Corruption to the extent whereby the privilege claimed by him was rejected; that according to the learned counsel for the petitioner D.W. 8 Muhammad Khan cannot be properly examined as a defence witness unless the Police file is available in the Court and that the observations of the learned trial Court that non‑production of the record by the prosecution would not adversely affect the accused or that in case the property is not produced before the Court, what repercussion adverse or otherwise it would have on the fate of the accused should not be his headache are pre mature inasmuch as the question of the relevancy admissibility of evidence oral/ documentary can only be determined at the time of recording the evidence.

3. For what has been stated above, that part of the order, dated 8‑5‑1984 wherein the learned Special Judge did not feel the necessity to compel the Director Anti‑Corruption Establishment to submit the case file of case F.I.R. No. 2 before his Court for the purpose of examining D.W.8 Mr. Muhammad Khan is hereby set aside.

4. Since the file does not relate to the affairs of the State and pertains to an ordinary criminal case as held by the trial Court, there fore, the Director Anti‑Corruption Establishment shall produce the police file before the trial Court for the proper examination of the defence witness. It would be open to the trial Court to determine the relevancy of questions sought to be put to the witnesses by the prosecution or defence at the time of recording his evidence. M. Y. H. Petition accepted.