2015 P Cr (PLP)

ABDUS SATTAR ASGHAR, J.

Petitioner an accused of case F.I.R. No.6/2012 in the offences under sections 419/420/468/471 of the Pakistan Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947, Police Station ACE D.G. Khan has lodged this Criminal Revision under sections 435,439 read with sections 526/561-A of the Code of Criminal Procedure 1898, for setting aside the orders dated 20-3-2012 and 21-11-2012 passed by the learned Special Judge Anti-Corruption, D.G. Khan.

2. As per F.I.R. lodged by Akhtar Ali complainant/respondent No.4 allegation against the petitioner is that he being Patwari Halqa Mouza Dera Gharbi Dera Ghazi Khan along with other revenue officers/officials and private persons prepared bogus Goshwara Fard Malkiat in respect of fake, forged and self-created Khasra No.459/3 in the revenue record on the basis whereof his co-accused fraudulently got registered forged sale deeds in favour of the co-accused namely Muhammad Tariq Saleem and Sajid Nadeem by mentioning the boundaries of the complainant's property and thus being a public servant abusing his official position by preparing bogus documents and using the same as genuine committed criminal misconduct attracting the offences under sections 419/420/468/471, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.

3. It is argued by learned counsel for the petitioner that he along with other co-accused was found innocent during police investigation and was placed in column No.2 of the report under section 173, Cr.P.C. but the learned trial court summoned the petitioner and other co-accused vide the impugned order dated 20-3-2012 against law and facts in sheer disregard to the material available on the record; that the petitioner on appearing before the learned trial court lodged an application under section 249-A, Cr.P.C. seeking his acquittal on the ground that there is no probability of the accused being convicted of the charges on the basis of material available on the record furnished to him under section 241-A, Cr.P.C.; that the learned trial court has dismissed the petitioner's application under section 249-A, Cr.P.C. vide impugned order dated 21-11-2012 against law and facts on the basis of misreading and non-reading of the material available on record, without application of judicious mind; that both the impugned orders being illegal and untenable are liable to set aside.

4. It is resisted by the learned DPG for the State assisted by learned counsel for the complainant with the contentions that opinion of the Investigating Officer being ipse dixit of police is not binding on the Court; that the learned trial Court after carefully scanning and taking into consideration the material available on the record considering it sufficient to summon the petitioner as accused for facing the trial passed the impugned order dated 20-3-2012 under section 204, Cr.P.C. in accordance with law; that the learned trial court also rightly dismissed the petitioner's application under section 249-A, Cr.P.C. through the impugned order dated 21-11-2012 after perusing the material available on the record in accordance with law; that the impugned orders do not suffer from any jurisdictional error, illegality or material irregularity therefore the petitioner has no case to invoke the revisional jurisdiction of this court; that the instant revision petition having no merit is liable to be set aside.

5. Arguments heard. Record perused.

6. Careful perusal of the record transpires that the prosecution has prima facie sufficient incriminating material on the record in the shape of statements of the P.Ws. under section 161, Cr.P.C. and documents to proceed against the petitioner for preparing bogus documents and using the same as genuine being public servant and by abusing his official position for criminal misconduct attracting the offences under sections 419/420/468/471, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. It is established principle of law that opinion of the police/Investigating Officer being ipse dixit is not binding upon the Court. It is well within the powers and jurisdiction of the learned trial Court to take into consideration the material produced by the prosecution on the record in order to summon and proceed against the accused. Having done so usually a criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, statement of the accused under section 342, Cr.P.C. and 340(2) Cr.P.C. if so solicited and hearing the arguments of both the parties. There is no cavil to the proposition that recording of evidence before order under section 249-A, Cr.P.C., is not the requirement of law. However, fact remains that the said section cannot be pressed into service to stifle or throttle the prosecution for deciding the fate of a criminal case without providing an opportunity to the prosecution or complainant to produce witnesses and documentary evidence. Needless to say that proceedings under section 249-A, Cr.P.C. are summary in nature. There has to be judicious exercise of discretion under the said section and depriving the complainant to prove his case through oral or documentary evidence cannot be termed as fair exercise of jurisdiction. The object of the section 249-A, Cr.P.C. is that if the facts of the case do not disclose the commission of an offence, the accused should not suffer ordeal of trial. Stifling the prosecution is not the rationale of section 249-A Cr.P.C. It is established principle of law that ordinarily the guilt or innocence of an accused person will depend on the totality of facts and circumstances revealed during the trial, therefore exception in terms of section 249-A, Cr.P.C. has to be construed strictly. Reliance is made upon (i) State v. Mir Nabi Bakhsh Khan Khoso and others (1986 PCr.LJ 1130 Quetta) and (ii) The State through Collector Customs and Excise, Quetta v. Azam Malik and others (PLD 2005 SC 686).

7. In the instant case learned trial Court has carefully scanned and considered the statements of the P.Ws. and the documentary material available on the record while summoning the petitioner as accused and later on rejecting his application under section 249-A, Cr.P.C. through the impugned orders dated 20-3-2012 and 21-11-2012. The learned trial court considering the pros and cons of the controversy and appreciating the ocular and documentary material available on the record therefore has lawfully passed the impugned orders. I do not find any jurisdictional error, illegality or material irregularity in the impugned orders passed by the learned trial Court.

8. For the above reasons, the petitioner has no case to invoke the revisional jurisdiction of this Court. This petition having no merit is dismissed. MWA/M-125/L Petition dismissed.