2014 PLP 1788 (MLD)

MUNIR AHMED CHAUDARY, J.

This revision petition has been filed against the judgment and order of Judge Ehtesab Court No.II Mirpur, through which an application under section 265-K of Code of Criminal Procedure filed by the present petitioner was dismissed.

2. Brief facts giving rise to the present revision petition are that a reference under sections 467, 468 and 471 APC and section 11 of Ehtesab Bureau Act was filed against the present petitioner before Judge Ehtesab Court No.II Mirpur on 11-6-2012. During pendency of the reference, the present petitioner submitted an application for his acquittal under section 265-K of Criminal Procedure Code, stating therein that the reference was not maintainable as it was not filed before the Ehtesab Court under the provisions of law. The complaint against the petitioner was received by the Ehtesab Bureau on 14-2-2008 and the reference was filed in the Reference Court on 11-6-2012 after 4 years and 04 months approximately. According to section 21(6) of Ehtesab Bureau Act, 2001, it was enjoined upon the functionaries of Ehtesab Bureau to complete the investigation on the complaint within one year from the date of receipt of the complaint, but the same has not been done and the reference was filed after a long time. The said section narrates that if the investigation has not been completed within the said period, such investigation shall be deemed to have been abated and the case be consigned to the record, It was prayed to acquit the petitioner/accused and to quash the proceedings of the reference.

3. The respondent/Ehtesab Bureau submitted objections, stating therein that the reference was filed in accordance with the provisions of law. The delay in completion of investigation was caused by the petitioner/accused. The charge against the petitioner/accused was framed on 23-1-2013. A total of 13 witnesses have been enlisted in the reference as prosecution witnesses. No statement of any witness has been recorded yet. The said provision of law does not affect the present case. It was prayed to dismiss the application.

4. After hearing the parties, the learned Judge Ehtesab Court No.II Mirpur dismissed the application under section 265-K of Cr.P.C. filed by the present petitioner. Feeling aggrieved, the petitioner has filed the present revision petition before this court.

5. Arguments were advanced by the learned counsel for the parties. Sh. Masood Iqbal Advocate, the learned counsel for the petitioner argued in brief and repeated the facts and figures of the case as mentioned in the application. The learned counsel argued further that the learned Judge Ehtesab Court did not record his findings on the application in accordance with the provisions of law and ends of justice. The learned counsel requested to accept the revision petition.

6. While controverting the learned counsel for the petitioner, Mr. Aurangzeb Chaudhary, the learned Deputy Chief Prosecutor contended that the delay in completion of the investigation was caused by the petitioner/accused. The complaint against the accused was filed prior to the said amendment in section 21 of Ehtesab Bureau Act, so the said provision of law does not affect the complaints filed before. A criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused under section 342 Cr.P.C. and under section 340(2) of Cr.P.C, if so desired and hearing the arguments of both the parties. The learned Deputy Chief Prosecutor requested to dismiss the revision petition and referred the following precedents in support of his arguments. 2005 SCMR 1544 PLD 2013 Balochistan 138 An unreported case titled Muhammad Manzoor Tahir v. Ehtesab Bureau decided by the High Court of AJ&K under Criminal Revision No. 19/2012 on 14-6-2013.

7. After hearing the learned counsel for the parties, I have gone through the record and the precedents referred carefully and minutely. The record reveals that a complaint against the petitioner was received by the Ehtesab Bureau on 14-2-2008 and the reference was submitted before the Ehtesab Court on 11-6-2012. Although, the reference was filed after 4 years and 4 months approximately, but the Ehtesab Bureau took this version that delay in filing the reference was caused by the petitioner/accused in the garb of departmental inquiry and other excuses. It is pertinent to reproduce the relevant provision of Ehtesab Bureau Act, 2001 on which the petitioner relied upon, as under:-- "Section 21(6). Any inquiry or investigation under this Act shall be completed as expeditious as possible. Provided that if any inquiry or investigation initiated by Ehtesab Bureau under clauses (a) and (b) of subsection (2) respectively, has not been completed within one year from the date of receipt of the complaint or taking action, as the case may be, shall be deemed to have been abated and such cases shall, without any further action, be consigned to the record. Provided further that the delay, if any, caused by any act of the accused shall not be counted towards the period of one year." Proviso of the above-mentioned section indicates that the delay caused by any act of the accused shall not be counted towards the period mentioned above. It has yet to be proved that whether the petitioner/accused caused delay in completion of the investigation against him or not? This fact requires proof by both the parties. Charge against the accused has been framed and the prosecution witnesses have been summoned for recording of their statements. It is not possible for the court to ascertain that the reference was filed within time or not without recording of the evidence. It has been held in the precedent PLD 2013 Balochistan 138 that paramount consideration of court to pass an order under section 249-A or 265-K, Cr.P.C. is to ensure that miscarriage of justice is prevented, which may arise from acquittal of guilty and is not less than from conviction of an innocent. Evidence must be appreciated as to whether any of the accused committed any offence or not. It was further held that order of acquittal of accused under section 249-A or 265-K, Cr.P.C. in appeal or revision proceedings has not the same sanctity as orders of acquittal on merits. It was also observed through the said precedent that prosecution should be provided every possible opportunity to prove its case and establish guilt of accused after a full-fledged trial. The same principle has been reiterated in the precedent 2005 SCR 1544. In the light of what has been discussed above, it is pertinent to mention here that the learned Judge Ehtesab Court No.II Mirpur has recorded his findings, which are based on sound and cogent reasons. No indulgence is required into the findings of the learned Judge Ehtesab Court. The instant revision petition stands dismissed with no order as to the costs. HBT/54/HC(AJ&K) Petition dismissed.