2022 P Cr (PLP)

AFTAB AHMED GORAR, J.

Through this Criminal Miscellaneous Application under section 561-A, Cr.P.C., the applicant Muhammad Ayub Choudhary has approached this Court with prayer to set aside the impugned order dated 08.11.2021, passed by learned Special Judge, Anti-Corruption (Central-II) Karachi in FIR No.02/2019 under sections 161/162/34/109, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947 registered with Police Station FIA CCC Karachi, whereby the Investigating Officer was directed to submit the charge sheet against him.

2. Learned counsel for the applicant argued that applicant is innocent and had not committed any offence as held in the impugned order which has been passed by using illegal suo motu powers. He further contended that learned trial Judge has failed to appreciate and apply his judicial mind while handing down the impugned order. To support his contentions, learned counsel has relied upon the cases of Mati-ur-Rehman v. The State (2004 YLR 2101), Naseebullah Khan and another v. The State (PLD 1986 Karachi 417), Federation of Pakistan v. Zafar Awan Advocate High Court (PLD 1992 Supreme Court 72) and Waqar Ilias and another v. The State (PLD 1993 Quetta 49).

3. Conversely, learned Assistant Attorney General supported the impugned order and contended that impugned order is judicial one, which does not require any interference by this Court.

4. Heard learned counsel for the parties and perused the material available on record.

5. Learned counsel for the applicant has mainly pressed the instant Criminal Miscellaneous Application on the ground that the learned Special Judge has no authority under the law to direct the Investigating Officer to submit the challan against the applicant and the said order is not sustainable.

6. In order to answer the aforesaid question, it will be appropriate to refer to section 351 of the Criminal Procedure Code, 1898, which is as under:- "Any person attending a Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. (2) When the detention takes place after a trial has been begun the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard".

7. Reading of section of above provision of the Criminal Procedure Code clearly shows that it empowers the court to summon any person other than the accused if he is found to be connected with the commission of the offence. It happens sometimes, though not very often, that a court hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is proper that court should have the power to call and join him in proceedings. Section 351 provides for such a situation. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence. The trial court in its order, impugned herein, while relying upon the Confidential Final Report wherein the Investigating Officer has recommended acquiring of necessary permission for submission of final challan including the name of present applicant observed that sufficient material is available to show the role of the proposed accused/applicant in the commission of alleged offence and ordered joining the applicant as one of the accused. Learned counsel for the applicant through his exhaustive and elaborate arguments wanted this Court to give its categorical and specific verdict regarding the applicant that he is not involved in the commission of offence but this Court is very much clear in its mind that no such precise verdict in criminal cases can be given as every criminal case has its own facts and circumstances. The case laws relied upon by the learned counsel for the applicant are not applicable as the same are distinguishable to the facts and circumstances of the case in hand.

8. As a sequel to the above, I am of the considered view that the learned Special Judge after thoroughly examining the record has rightly issued directions to the Investigating Officer to submit the challan against the applicant, which order does not warrant any interference by this court. Resultantly, this Criminal Miscellaneous Application is dismissed. MH/M-7/Sindh Application dismissed.