Muhammad Abideen vs The State

ORDER

MALIK HAQ NAWAZ, J.---The instant Criminal Miscellaneous has been filed under section 561, Cr.P.C. for acquittal of the petitioner from the charges under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947, vide FIR No. 26/2014 of Police Station FIA Gilgit.

2. The allegations contained in the FIR are that the petitioner along with co-accused caused heavy loss to the Government exchequers worth billion of rupees. The petitioner submitted an application under section 265-K, Cr.P.C., before the learned Special Judge Anti-Corruption Court Gilgit, which was dismissed vide order dated 01- 04-2019. The learned counsel for the petitioner submitted that occurrence has taken place in the year 2010 and FIR was lodged against the petitioner in the year 2014 with an inordinate delay of 04 years. Per learned counsel the prosecution witnesses examined so far, failed to connect the petitioner with the alleged offence. Further that there is no possibility/probability of the petitioner being convicted of any offence later on. Lastly it is argued that the direction of the Hon'ble Supreme Appellate court that the case should be concluded within a period of 03 months, have not been complied with, which has made the case of the petitioner as one of the further inquiry . The investigation has been carried out by a Sub-Inspector , which is illegal and all subsequent proceeding would be nullity in the eyes of law . The learned counsel relied on 2000 MLD 1456 .

3. Heard in detail and record: of the case examined minutely .

4. The learned trial Court in the impugned judgment has stated that it cannot be said that the delay occurred due to any fault on the part of prosecution. Delay in conclusion of trial and especially in the case of mass level corruption cannot be taken lightly and the prosecution cannot be penalized for any act/commission even if found on their part.

Delay is rarely considered a valid ground for acquittal in such like cases. Section 5-A of P.C.A., 1947 mandates that no officer below the rank of (Inspector) shall investigate. any offence punishable under any of the sections of P.P.C. mentioned in section 3 or any offence punishable under section 5 without an order of Magistrate first class or make any arrest therefore without a warrant.

6. In the case in hand the record reveals that I.O. of the case Raja Muhammad Arshad SI/SHO, FHA submitted an application before the Special Judge Anti-Corruption Gilgit on 16-07-2014 and the permission for investigation was granted on the same day, which negates the stance of the petitioner . Even otherwise any irregularity or illegality committed during investigation shall not vitiate the trial. Reliance is placed on 1998 PCr.LJ 114, the citation is reproduced as under:- "(a) Penal Code (XLV of I860)--- S. 302/34---Appreciation of evidence---Defence investigation not to demolish prosecution case--- Procedural defect or irregularities and even illegalities in the course of investigation shall not demolish the case of prosecution. fp. 1251 A"

7. Without commenting on merit of the case to avoid prejudice to either of the parties we are of the view that the case is in progress and petition under section 561-A, Cr.P.C. is not maintainable which is dismissed accordingly .

The learned trial Court is directed to conclude the trial of the case as early as possible without granting unnecessary adjournment to any of the parties.

7(sic.) Petition dismissed