Syed AFZAL HUSSAIN vs THE STATE and another
This criminal appeal challenges the judgment of the Special Judge Anti-Corruption, Lahore, convicting the appellant under sections 420 and 468 of the Pakistan Penal Code 1860 and section 5(2) of the Prevention of Corruption Act 1947. The core legal question revolves around whether the prosecution successfully proved the charges beyond reasonable doubt when primary evidence was withheld and secondary evidence was inadmissible. The Lahore High Court allowed the appeal, set aside the conviction, and acquitted the appellant. The court held that failure to produce the original result sheet and withholding primary evidence draws an adverse inference against the prosecution. Furthermore, documents not put to the accused during his examination under section 342 of the Code of Criminal Procedure 1898 cannot be used against him. The key principle laid down is that secondary evidence is inadmissible when primary evidence is withheld, and un-put incriminating evidence cannot form the basis of a conviction.
- What is the legal effect of withholding primary evidence in a criminal trial?
- Can a document not put to the accused under section 342 of the Code of Criminal Procedure 1898 be read against him?
- Does the failure to produce primary evidence result in the failure of the prosecution to prove its case beyond reasonable doubt?
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 340(2), Code of Criminal Procedure 1898
' This criminal appeal is directed against the judgment dated 3-12-2003 passed by the Special Judge Anti-Corruption, Lahore, whereby he convicted the appellant under section 420, P.P.C. And sentenced him to three years R.I. Along with fine of Rs.10,000. In default thereof, he will further undergo S.I for four months. He was also convicted under section 468, P.P.C. And sentenced to three years R.I. Along with fine of Rs.10,000. In default thereof to further undergo S.I. For four months. He was further convicted under section 5(2) of Prevention of Corruption Act, 1947 and sentenced him to three years R.I. Along with fine of Rs.5,000. In default thereof to further undergo simple imprisonment for two months in case F.I.R. No. 486 dated 20-8-2002 registered under sections 420, 468 and 471, P.P.C. At Police Station, Saddar Okara. Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. The Investigating Officer after completion of investigation submitted the challan before the learned trial Court. Formal charge was framed. The prosecution produced four witnesses to prove its case. Statement of the accused under section 342, Cr.P.C. Was recorded. He did not opt to produce any evidence in his defence nor desired to examine himself on oath under section 340(2), Cr.P.C.
3. Learned counsel for the appellant contends that the evidence has not been appreciated by the learned trial Court in its true perspective and the judgment is not in accordance with the safe principle of administration of criminal justice.
4. On the other hand, learned counsel for the State has supported the judgment of the learned trial Court.
5. I have considered the submissions of the learned counsel for the parties and perused the record.
6. The appellant is alleged to have fabricated original result sheet of upper class course. The original result sheet has not been produced in Court. Primary evidence has been withheld.
Inference has to be drawn against the prosecution. Copy of result sheet was produced as Exh.P.D.
Which was not admissible in law. Even this piece of evidence was not put to the appellant in his statement under section 342, Cr.P.C. The same, thus, cannot be read against him and is ruled out from consideration. After exclusion of Exh.P.D., no evidence is available to connect the appellant with the crime. It can safely be held that prosecution has failed to prove its case beyond reasonable doubt.
7. For what has been discussed above, thit criminal appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of the charge. He is on bail, therefore, his bail bonds are discharged.