Muhammad Waseem vs Ehtesab Bureau Mad Jammu & Kashmir through C.P._D.C.P. Ehtesab Bureau, Mirpur AK

CH. MUHAMMAD IBRAHIM ZIA, CJ. --- The captioned appeal by leave of the Court has been filed against the judgment/order of the High Court dated 12.05.2018, whereby, the revision filed by the appellant, herein, has been dismissed

2. The precise facts forming the background of the captioned appeal are that a reference against the appellant, herein, under Sections 467, 468 and 471, A.P.C. read with Section 11 of the Ehtesab Bureau Act, 2001, is pending adjudication before the Ehtesab Court Mirpur. The case was at the stage of recording of evidence when on 14.10.2017, during the course of recording the statement of P.W. Khalid Mehmood the Deputy Chief Prosecutor (D.C.P) Ehtesab Bureau, on behalf of the prosecution, requested that some time may be allowed to produce some important documents to be put to the witness Khalid Mehmood. The learned Judge Ehtesab Court allowed the request and deferred the statement of the witness vide order dated 14.10.2017. The appellant, herein, felt aggrieved from the said order of the Ehtesab Court and challenged the legality and correctness of the same before the High Court by way of a revision petition. After necessary proceedings, the learned High Court through the impugned judgment dated 12.05.2018, dismissed the revision petition.

3. Sh. Masood Iqbal, Advocate, the learned counsel for the appellant after narration of necessary facts submitted that the Courts below have fell in error of law. According to the scheme of statutory provisions specially, Ehtesab Bureau Act, it is the duty of the investigating officer. Ehtesab Bureau to furnish full list of witnesses and documentary evidence alongwith the reference and the same have to be delivered to the accused, whereas, in this case, during recording of prosecution evidence, without any application, the prosecution-Ehtesab Bureau produced some documents which were neither part of the reference nor annexed with the reference or relied upon and the Court illegally ordered to tender the same in evidence. The learned High Court has fell in error of law while deciding the revision petition through the impugned judgment. No doubt, the Court is empowered to exercise power but the power can only be exercised in a transparent manner and after application of judicial mind. The power cannot be exercised in an arbitrary manner to put the other party at surprise. If such practice is allowed, there will be no end to litigation and at any time according to the sweet will of the prosecution any type of evidence can be produced which is against the principle of justice.

4. Conversely, Sardar Amjad Aslam, Chief Prosecutor Ehtesab Bureau supported the impugned judgment and submitted that it is the duty of the Court according to the statutory provisions to admit the evidence produced on behalf of the prosecution. The powers vested under Sections 244 and 265-F, Cr.P.C. are expressed and Criminal Procedure Code is applicable in the proceedings before the Reference Court thus, no illegality has been committed.

5. We have considered the arguments of the learned counsel for the parties and carefully examined the record made available. According to the admitted fact, the disputed documents were neither relied, nor annexed with the reference. However, during the recording of statement of one of the prosecution witnesses, Khalid Mehmood, the D.C.P. requested the Court that some documents which are not part of the record have to be put to the witness. The Court accepted this request and allowed the production of the documents. The examination of the record reveals that neither such documents were in possession of the D.C.P. nor produced before the Court rather it was shown that the same will be available in the record of the concerned office. Suchlike casual attitude and request of the prosecution cannot be accepted. If at all, the prosecution wanted to produce some documents, it was enjoined upon it that the documents which were intended to be produced, must be placed before the Court so that the Court should be able to determine the relevancy of such documents or atleast should satisfy the Court that such documents are relevant to fact in issue. Without determination of relevancy of such documents, the same cannot be allowed to be tendered in evidence.

6. So far as the contention of the respondent that the Court is vested with the power under provisions of Sections 244 and 265-F & 540, Cr.P.C. are concerned, we have no cavil with the powers of the Court as conferred under the relevant provisions but while exercising such powers, the Court has to judiciously determine the issue of relevancy of such evidence proposed to be produced. In absence of application of judicial mind or determination of relevancy or necessity of production of such evidence, the exercise of powers in an arbitrary manner is not allowed, rather, it is violation of statutory provision and principle of administration of justice. Thus, the order passed by the Court below being violative of law is not maintainable.

Therefore, while accepting this appeal, the impugned judgment as well as the order passed by the Ehtesab Court is hereby set aside.