2001 PLP 1125 (MLD)

Tariq Zulfiqar Ahmad Chaudhry for Petitioner. Syed Murtaza Ali Zaidi and Mian Fazal Rauf Joyia for Respondents. Date of hearing: 21st November, 2000. This revision is directed against order, dated 19‑1‑2000 passed by Special Judge, Anti‑Corruption, Multan at Sahiwal vide which petitioner's application under section 249‑A, Cr.P.C. in the private complaint filed by respondent under sections 161 and 165, 169, P.P.C. read with section 5(2)47 of the Prevention of Corruption Act was dismissed.

2. The allegation against the petitioner in the complaint is that he took Rs.7,000 as bribe from the complainant for getting the accused acquitted from the Court where the petitioner was serving as a Reader. It is further alleged in the complaint that petitioner is a son of a person who owned only 12 Kanals of land but now petitioner owns a property which is much beyond his known sources of income. Having recorded complainant's statement the learned trial Court referred the matter for inquiry under section 202, Cr.P.C. to a Magistrate who having inquired into the matter recorded that the transaction of accepting bribe could not be proved. However, the allegation that he made property through ill‑gotten means stood prima facie proved. After the submission of the said report the petitioner was summoned to face trial under section 5‑C of Prevention of Corruption Act.

3. Petitioner moved an application under section 249‑A, Cr.P.C. wherein he explained that he and his family members had known sources of income and that he made property on account of those sources. It was submitted that petitioner had documentary evidence to show that the property purchased by him was through lawful means. The learned trial Court dismissed the application in the grounds that the pleas raised could only be appreciated after recording of evidence to be produced by the parties during trial.

4. Learned counsel for the petitioner takes exception to the impugned order on the grounds that under section 249‑A, Cr.P.C. the Court could acquit the petitioner, at any stage if the charge was groundless. He added that the petitioner was summoned under section 5‑C on 18‑3‑1999 whereas the charge was framed under section 161, P.P.C. read with section 5(2)47, PCA. In support of his submission made he relied on 1998 PCr.LJ 1860.

5. Learned counsel for the complainant on the other hand supported the impugned order and submitted that the Court while framing the charge is no bound by the report in the preliminary inquiry and that the charge has to be framed on the basis of material before the Court concerned.

6. Heard.

7. There is force in the submissions made by complainant's counsel that the charge has to be framed on the basis of the material placed before the learned trial Court and while doing so the Court is not bound by the inquiry report submitted under section 202, Cr.P.C. or in a police challan case in the report submitted under section 173, Cr.P.C. Even otherwise charge can be amended at any stage. So far as the plea raised by the learned counsel for the petitioner that the learned trial Court should have considered the documents that he placed before it while considering application under section 249‑A, Cr.P.C. is concerned I am afraid this argument is not tenable as the defence evidence can only be considered after the prosecution evidence is concluded.

8. For what has been discussed above I do not find any irregularity or illegality in the impugned order to call for interference, this petition having no merit is dismissed. H.B.T./A‑206/L Petition dismissed.