1999 PLP 1069 (MLD)

"Heard. The record examined. Documents P-1, P-2, should be sent to the Handwriting Expert for comparison and report alongwith the other admitted documents. To come up on 20-7-1998 for further hearing." This order passed by the learned Special Judge, Anti-Corruption, Faisalabad Division, Faisalabad has been assailed before this Court through the present revision petition filed by the accused-petitioner.

3. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate-General, Punjab and have also gone through the record of the case annexed with this petition.

4. The learned counsel for the petitioner have contended that in the criminal justice system in vogue in our country the proceedings of a trial are adversarial in character and not inquisitorial in nature and that the learned trial Court was not possessed of 'any jurisdiction to assume the mantle of an investigating officer so as to enable it to embark upon discovery of fresh evidence against the petitioner in order to fill in the lacunae in the case un attended by the prosecution. The learned counsel for the petitioner have also taken strong exception to the impugned course adopted by the learned trial Court especially at a stage of the petitioner's trial when the entire evidence of the prosecution had already been recorded and closed, the statement of the accused petitioner had already been recorded under section 342, Cr.P.C. and the final arguments in the case had already been addressed. According to the learned counsel for the petitioner all that was left for the learned trial Court to do at that late stage of the trial was to announce its final judgment of acquittal or conviction of the petitioner. They have maintained that the petitioner was quite confident of his acquittal in tote case and that by passing the impugned order the learned trial Court has denied, or at least delayed, the right of acquittal accruing to the petitioner on account of the weakness of the prosecution's case against him. They have, thus, convassed for acceptance of this revision petition and setting aside of the impugned order passed by the learned trial Court.

5. Opposing this revision petition the learned Additional Advocate General has maintained that a trial Court is never bereft of jurisdiction at any stage of a trial pending before it to call for such other evidence as it thinks fit which, in its opinion, is likely to assist it in arriving at a just and correct decision of the case. He has pointed out that Muhammad Iqbal (P.W.4) had stated before the learned trial Court that the all-important receipts P-1 and P-2 had in fact been signed by the accused-petitioner and, therefore, before deciding the case finally the learned trial Court was quite justified in getting that fact verified from a handwriting expert. The learned Additional Advocate-General has further submitted that a scuttling of that satisfaction and discretion of the learned trial Court may lead to injustice in the circumstances of this case.

6. After hearing the learned counsel for the parties and going through the available record of the case I have not hesitation in concluding that the present petition must fail. The following are my reasons for holding the same.

7. The main plank of the petitioner's arguments before me has been that in our adversarial system of justice there was not scope for an inquisitorial approach adopted by the learned trial Court through the impugned order passed by it. However, the learned counsel for the petitioner have failed to point out any statutory sanction for observing that our system of justice is adversrial and not inquisitorial. If one looks at the history of our judicial system one may notice that this concept has gradually developed therein as a rule of prudence and practice mainly as regards civil litigation wherein the parties to a lis are required to lay their respective claims before the trial Court and then substantiate the same through evidence to be led by them. There are indications available in the Code of Civil Procedure which support the perception that civil litigation in our system is, by and large, adversarial in nature. But even there the inherent and general powers of the Court, and even some specific powers, sometimes cut across that concept. A general acceptance of that concept in the civil litigation is, even otherwise, understandable. In a civil lis more often than not, it is the parties to the lis alone who are interested in its outcome and effect. This cannot be said to be true for a criminal case wherein an offence committed by an individual is considered to be an offence not only against his victim but also against the whole society and the State. Thus, in a criminal case an intentional or an unintentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel is not to be allowed to stand in the way of a trial Court to rectify that lapse by calling in evidence on its own if such evidence can have bearing on the determination of guilt or innocence of the accused person. Such a power has to be conceded to a criminal Court in the larger interest of the community at large. Looked at in this context the stage of a trial appears to be irrelevant to the exercise of such a power of the Court and the only factor relevant to the exercise of such a power cannot be other than the relevance of the evidence called.

8. While arguing that the learned trial Court in the present case had no jurisdiction to pass the impugned order and that too at that late stage of the trial the learned counsel for the petitioner have failed to take into consideration certain statutory provisions relevant to this aspect. While holding a trial of the petitioner in the present case the learned trial Court was governed by the provisions of the Pakistan Criminal Law Amendment Act, 1958 subsection (3) of section 6 whereof provides that: "The provisions of Chapter XX of the Code of Criminal Procedure, 1898 shall apply to trial of cases under this Act in so far as they are not inconsistent with the provisions of this Act. " In chapter XX of the Code of Criminal Procedure, 1898 one finds section 245 subsection (1) whereof expressly empowers a Magistrate to take: "

such further evidence (if any) as he may, of his own motion, cause to be produced. " even after the entire evidence led by the prosecution and the defence has already been led before him and closed. The position in the case of the petitioner was no different.

9. Another pertinent provision omitted from consideration by the learned counsel for the petitioner in this regard is Rule 2 of Chapter 1-E, Volume III of the Rules and Orders of the Lahore High Court, Lahore which, without mincing words, categorically provides that

a Judge in a criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The wide Lowers given to the Court by Article 161 of the Qanun-e-Shahadat. 1984 should be judiciously utilised for this purpose when necessary." Article 161 of the Qanun-e-Shahadat, 1984 clearly provides that: "The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or things and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:-" Looked at in the light of these express statutory provisions the argument of the learned counsel for the petitioner that the learned trial court in the present case could not assume an inquisitorial role appears to be misconceived. The provisions like sections 540, 428 and 561-A, Cr.P.C. and other such provisions go a long way in further fotifying this conclusion. Enunciation of the law by the Honorable Supreme Court of Pakistan in the case of Muhammad Azam v. Muhammad Iqbal (PLD 1984 SC 95) also throws sufficient light on the subject and I have respectfully sought guidance from the same in this regard.

10. The learned counsel for the petitioner have not questioned before me the jurisdiction of the learned trial Court to get the admitted signatures of the petitioner compared with those on documents P-1 and P-2 available on the record of this case. I think they are quite justified in not challenging that jurisdiction of the learned trial Court as the provisions of Article 84 of the Qanun-e-Shahadat, 1984 read with section 510, Cr.P.C. leave no ambiguity in that regard.

11. At the fag end of their submissions the learned counsel for the petitioner also argued that even if the learned trial court had the jurisdiction to pass the impugned order of its own motion and at that late stage of the trial still the learned trial Court had failed to record any reason for passing the impugned order and that, according to them, even otherwise no reason existed at all to justify the passage of the impugned order. I have given anxious consideration to this aspect of the present case, but, in the final analysis, I have not been able to persuade myself to interfere with the impugned order on this ground. It is true that the learned trial Court has failed to record any reason in the impugned order for passing the same yet, upon looking for the same the record of the case, not have to search hard or deep for finding the reasons which could have propelled any reasonable Court to pass the impugned order. In fact, I found those reasons floating at the very surface of the record. It was undeniably a case involving an allegation of corruption by a public servant; two witnesses, that too the most crucial ones who could directly prove corruption on the part of the petitioner, had resiled from their statements made before the Investigating Officer and, thus, had been declared to be hostile; the remaining three witnesses produced by the prosecution had also hesitated in incriminating the accused petitioner; the Investigating Officer had never bothered to get the signatures of the petitioner on the all-important receipts P-1 and P-2 allegedly issued by the petitioner compared by a handwriting expert; and the prosecuting counsel had also failed to apply before the learned trial Court for getting the alleged signatures of the petitioner compared by an expert with his admitted signatures. Any reasonable Court would have been justified in smelling a rat or suspecting manipulation of judicial process in such circumstances. In passing the impugned order, the learned presiding officer of the trial Court appears to have made a last-ditch effort to be doubly sure of the guilt or innocence of the petitioner before passing the final judgment. I for one would not like to stand in his way it he wishes to satisfy his judicial conscience in that regard. Here. I am mindful of the legal position that the revisional jurisdiction of this Court is a discretionary jurisdiction and a discretion is always to be exercised in aid of justice and not to achieve a result which thwarts an effort made to secure the same. I must observe here that if the petitioner had really not issued or signed the receipts in question then he should not have anything to worry about even if the impugned order is upheld and maintained and the final judgment in his trial is a little delayed. But if that is not true then. I would say that a delay of justice is surely better than a miscarriage of justice.

12. For what has been observed above this revision is, hereby, dismissed. N.H.Q./A-301/L Revision petition dismissed.