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Criminal Appeal No. 153 of 1966, decided on 5th October 1967.

, S. 161 and Prevention of Corruption Act (II of 1947), Ss. 3, S & 5‑A‑Complainant informing A. S. I. of Police about demand of bribe by accused‑A. S. I. Police taking steps towards investigation of offence by arranging trap and consequent arrest of accused before formal registration of case and grant of permission by A. D. M‑Such investigation not causing any prejudice to accused‑Trial, held, not vitiated on account of fact that part of investigation of case was not under proper authorisation‑[Feroz‑ud‑Din v. The Crown P L D 1954 Bal. 1 and Abdul Marian v. The State P L D 1958 Kar. 643 overruled].

Ghulam Abbas v. The State 1968 P Cr. L J 17 distinguished.

Crown v. Noor Alam P L D 1955 Lah. 667 and Mst. Sadan v. The State P L D 1965 B J 12 fol.

Feroz‑ud‑Din v. The Crown P L D 1954 Bal. 1 and Abdul Manan v. The State P L D 1958 Kar. 643 overruled.

Ch. Ghulam Rasool Waraich for Appellant.

Major Wahiduddin for A.‑G. for the State.

Date of hearing: 20th July 1967.

This is an appeal against the order dated 21‑2‑1966 of Sheikh Abdul Hamid, Special Judge, Anti‑Corruption Establish ment, West Pakistan, Lahore, who convicted Mehr Khan, appellant under section 161, P. P. C. read with section 5(2), Prevention of Corruption Act, 1947 and sentenced him to one month's R. I., and a fine of Rs. 30 and one month's further R. I., in default of payment of fine.

2. Briefly stated, the prosecution case is that on 2‑8‑1962 Muhammad Husain P.W. 6 who is a taxi‑driver parked his taxi‑car No. LE‑2510 at the taxi stand near Lahore Hotel. The appellant who was working as a traffic constable came up to the stand and after examining the numbers of different taxies parked there, stopped in front of the taxi‑car of Muhammad Husain P.W. 6 and enquired who the driver of that taxi was. When Muhammad Husain P. W., responded to the inquiry by claiming to be the driver of the taxi, the appellant told him to produce his driving licence and other relevant papers. Muhammad Husain P. W. produced the licence and other papers before the appellant and the latter after turning them over retained the driving licence with himself but returned the other papers to Muhammad Husain P. W., saying that he could get back his licence if he paid him Rs. 10. When Muhammad Husain P. W. enquired of the appellant as to why that amount had to be paid by him to the appellant, the latter told him that a report had been made in the traffic office regarding his taxi‑car and that the amount demanded should be paid to him immediately or else he (Muhammad Husain) would be challaned. When Muhammad Husain P. W., pleaded his inability to pay up the amount immediately, the appellant told him that he could pay up the amount in the office.

3. Feeling aggrieved on account of the illegal demand of money made by the appellant, Muhammad Husain, P. W., went to the Anti‑Corruption Office and contacted Irshad Husain A. S. I., Anti‑Corruption Establishment P. W. 2 and informed him about the unwarranted demand made on him by Mehr Khan appellant. Irshad Hussain, A. S. I. took Muhammad Husain P. W., to the District Courts and made an application to the Additional District Magistrate for a Magistrate being detailed to supervise a raid. The A. D. M., vide order Exh. P. A. directed Qazi Mahmood Afzal, Magistrate P. W. 1 to carry out the necessary raid. Qazi Mahmood Afzal P. W. recorded the statement Exh. P. B. of Muhammad Husain P. W., and Muhammad Husain signed it after it was read over to him. Muhammad Husain produced the currency note Exh. P. 1 of the denomination of Rs. 10 before Qazi Mahmood Afzal, Magistrate P. W. 1, and after recording its serial number, the Magistrate returned it to Muhammad Husain P. W., directing him to give it to the appellant, on his demand. The Magistrate also took the precaution of searching the person of Muhammad Husain P. W. He found no money or paper other than the currency note Exh. P. 1 on his person. There after Qazi Mahmood Afzal, Magistrate (P. W. 1), Irshad Hussain A. S. 1. (P. W. 2), a foot constable and another fellow proceeded together in a taxi‑car towards Lahore Hotel. Reaching near the Hotel at about 12‑45 p.m., Muhammad Husain P .W., got down from the taxi‑car and searched for the appellant. He learnt from the shop‑keepers in the vicinity that the appellant, who had been on duty from the morning had already left the spot. Muhammad Husain P. W. however, knew that the appellant had to be on duty in the afternoon also and he told this to the Magistrate. The Magistrate agreed to come again in the evening and, thereafter, the raiding party dispersed‑ At about 5‑40 p.m., Muhammad Husain accompanied by Irshad Hussain, A.S.I., and a foot‑cons table joined the Magistrate at his house and from there again proceeded in a taxi to Lahore Hotel. Before proceeding from his house, the Magistrate had searched the person of Muhammad Hussain P. W., and had found nothing on him except the currency note Exh. P. 1. After getting down from the taxi the Magistrate went to one side of the Hotel and Muhammad Husain started looking for the appellant. After a few minutes the Magistrate found Muhammad Husain talking with the appellant who was in the uniform of a traffic constable. At that time the Magistrate was at a distance of about 10 paces from Muhammad Husain P. W., and the appellant. He walked towards them and when he had come within 4 or 5 paces of Muhammad Husain P. W. and the appellant, he heard Muhammad Hussain telling the appellant that he had already been to the same place earlier but the appellant was not there. The appellant in turn told Muhammad Husain that he must challan him and enquired of him as to where he bad parked his taxi‑car. Muhammad Husain pointed out that place. Then the appellant and Muhammad Husain walked together towards the taxi followed, by the Magistrate. After having walked a distance of about 25 yards Muhammad Husain asked the appellant for his driving licence and the latter demanded money. The appellant had a Theta with him and from the Theta he took out the driving licence Exh. P. 2 and gave it to Muhammad Husain and Muhammad Husain gave the ten‑rupee currency note Exh. P. 1 to the appellant and the latter put it to his Theta. At this stage the Magistrate went up to the appellant and told him who he was and asked him to give him the currency note which he had taken from Muhammad Husain. The appellant denied that he had taken any money from the complainant. Thereupon the Magistrate got the Theta from the appellant and took out the currency note Exh. P. 1 from it. In the Theta there were several other documents including the Challan Book Exh. P. 3 and the leaf Exh. P. C. On this sheet of paper the taxi number of the complainant, viz., 2510 was mentioned at Exh. P. C/ I . The Magistrate asked the appellant if he wanted to make any statement but the appellant replied that he did not. Thereafter the Magistrate wrote the raid report Exh. P. D., ‑and permitted the A. S. 1. to arrest the appellant and made over the raid report and the other relevant papers to Irshad Hussain, A. S. 1. (P. W. 2). The A. S. I. forwarded the raid report to the police station Gowalmandi under his endorsement Ex. P. E., and Inayat Masih M. H. C. P. W. 3., registered the formal F. I. R. Exh. P. G., on its basis, A. S. I Irshad Husain investigated the case after getting permission of the Additional District Magistrate vide his order dated 4‑8‑1962. The appellant was challaned under section 161, P. P. C. and put on his trial before the Special Judge but it was discovered that the necessary sanction for his prosecution had not yet been obtained. The Special Judge, therefore, by his order dated 13‑3‑1965 ordered the proceedings to be stopped and released without the accused recording any order either of conviction or acquittal as contemplated by section 249, Cr. P. C. The appellant was again put on his trial after the necessary sanction dated 25‑4‑1965 had been obtained.

4. The appellant pleaded not guilty to the accusation at the commencement of the trial and denied in his examination under section 342, Cr. P. C., that he had ever demanded Rs. 10 from Muhammad Husain P. W., or had received any such amount from him by way of illegal gratification. He gave the following as the reason of his implication in the case; ‑

"In June, 1962, I got a raid made against Muhammad Anwar, Head Constable (Traffic). The S. S. P. apprehended that Head Constable had brought him to his office. On reaching the office, the Head Constable told me that I had got a raid made on him and he would also get me entrapped in a false case. On this I made an application to the S. S. P. that I may be transferred and sent to some Thana because the Head Constable might bring me to trouble. I appeared before the Additional Super intendent of Police and he transferred me to Police Station Gowalmandi but in spite of it I was not released and the Head Constable got an opportunity to involve me in a false case with the complicity of another Head Constable (Traffic)."

He gave the following version of his encounter with the raiding party:‑

"My wife was in a family way and she was admitted in the hospital. I received information that my wife was to be operated upon. I got certain articles, which I thought my wife would require and tied them with the carrier of my cycle. While I was going to the Hospital on my cycle, the complainant caught hold of the handle of my cycle and stopped me. When I got down from the cycle he said that he would entertain me with tea if I accompanied him to his taxi‑car. While I and the complainant were going together, the Magistrate came and held my wrist and said that I had taken bribe and I told him that I had not. The Magistrate searched my person and found only annas five on me. The Magistrate asked me where the currency note of Rs. 10 was and I told him that I did not know anything about it. Then the complainant told the Magistrate that the currency note was in the Thela. The Magistrate took the Thela into his possession and went to a hotel. On the back side of the hotel there was photographer's shop. There the Magistrate asked me to make a statement regarding the currency note of Rs. 10. I said to the Magistrate that I could not make any statement because I knew nothing about the money."

5. He produced two witnesses in defence namely D. W. 1 Syed Mukhtar Husain Shah, Deputy Superintendent Police and D. W. 2 Malik Mughal Khan, a retired Subedar. The former deposed to the effect that he had as City Inspector, Lahore under the orders of S. S. P., Lahore conducted a departmental inquiry against the appellant in 1964 and that during that departmental inquiry he had recorded the statements Exh. P. B. and P. C. of Irshad Husain and Muhammad Husain, Taxi‑driver and that on his report the appellant was dismissed but on appeal to the D. I G., the case was remanded on the ground that out of 6 witnesses named by the appellant in his defence, this D. W., had examined only one. He further stated that when D. I. G's order was communicated to him (this D. W.) he resumed the inquiry but thereafter the appellant filed a Writ Petition in the High Court and the proceedings were stayed. D. W. 2 Malik Mughal Khan, deposed to the effect that three years before the date of his evidence in Court at about 6‑00 p.m., be went to Lahore Hotel for taking tea and when he came out of the Hotel after taking tea he saw the appellant. He had a bag hanging from the handle of his cycle and a person came up near the appellant and put a tea‑rupee currency note in his bag and that soon after another person who later revealed himself as a Magistrate came to the spot and arrested the appellant and recovered the currency note from the bag. This D. W., further stated that he informed the Magistrate that he had seen the currency note being put in the bag by that person and that the accused was not at fault but that the Magistrate did not record his statement saying that it was not necessary and that he made a statement to the same effect before the City Inspector.

6. Needless to say the statement of Malik Mughal Khan (D. W. 2) is neither here nor there. Surely if this D. W., who was at quite some distance from the appellant, could see a currency note being put in the Thela of the appellant by Muhammad Husain P. W., the appellant should also have seen this operation being performed by Muhammad Husain P. W., but the appellant in his statement has taken up the position that he did not know that any currency note had been put into his Thela by Muhammad Husain P. W. It would appear from the statement of the appellant that he was not even admitting that any Rs. 10 note was recovered from his Thela. He has merely emphasized in his statement that the Magistrate had asked him to make a statement regarding the currency note of Rs. 10 and that he had told the Magistrate that he could not make any statement because he knew nothing about the money.

7. The prosecution version given above is substantially consistently supported by the Magistrate, Qazi Mahmood Afzal P. W. 1. Irshad Husain, A. S. I. (P. W. 2) and Muhammad Husain (P. W. 3), Rashid Ahmad, Foot Constable produced Intimation Register for the year 1962 to show that no complaint regarding Taxi No. LE‑2510 had been made to the Traffic Office in the month of August 1962. This evidence was presumably produced to show that there was no valid basis for the appellant having retained the driving licence of Muhammad Husain P. W., after it had been produced before him by Muhammad Hussain on the morning of 2‑8‑1962 and that the demand that he had made of Is. 10 from him was for his own use as illegal gratification.

8. Learned counsel for the appellant did not seriously challenge the order of the learned Special Judge on merits. He, however, contended that the trial of the appellant stood vitiated as the investigation of the case had been made by a police officer who was not properly authorised to conduct the investigation. It was urged by the learned counsel that under section 5(A) of the Prevention of Corruption Act no officer below the ank of Deputy Superintendent of Police could investigate the offence mentioned in section 3 or section 5 thereof without an order of a Magistrate of the First Class. Learned counsel emphatically urged that in view of the Full Bench Judgment of this Court in Ghulam Abbas v. The State (1968 P Cr. L J 17) the demand of bribe also being an offence, when Muhammad Hussain P. W., gave information to Irshad Husain, A. S. I. that the appellant had demanded Rs. 10 from aim by way of illegal gratification, the subsequent steps taken by Irshad Husain, A. S. I. constituted investigation of the case and that since this investigation was without authorization by a. First Class Magistrate, Irshad Hussain being an officer below the rank of a Deputy Superintendent of Police, the challan that was put before the Special Judge was unwarranted in law and the trial of the appellant, therefore, stood invalidated. It is true that in the above‑mentioned judgment the view has been expressed by the majority of the Judges constituting the Full Bench, that in a case under section 5 of the Prevention of Corruption Act the demand of bribe also being an offence if the complainant informs a police officer about such a demand of bribe and the police officer takes any step towards the entertainment of the offence the investigation of the case commences, but that judgment has said nothing about whether such an investigation if not authorised by a Magistrate of the First Class, vitiated the subsequent trial. Learned counsel urged that the entire investigation in the present case had ended before the formal registration of the case and that the grant of permission by A. D. M., to investigate the case was a mere redundancy. He cited Feroz‑ud‑Din v. The Crown (P L D 1954 Bal. 1) and Abdul Manan v. The State (P L D 1958 Kar. 643) in support of his contention. It is, however, noteworthy that both these judgments are of single benches, the former by Mr. R. K. M. Saker, J. C. Baluchistan and the latter by Mr. Justice Constantine. On the other hand a D. B. of Lahore High Court in the Judgment In re: Crown v. Nur Alam (P L D 1955 Lah. 667) held that even if the investi gation had not been in conformity with the legal provision of the proviso to section 3 of the Prevention of Corruption Act (as it stood before the Criminal Law Amendment Act, XXXV11 of 1953) it did not necessarily follow that the subsequent trial was vitiated and this in spite of the fact that the prosecution could not invoke section 156 (2), Criminal Procedure Code in respect of an unauthorised investigation. The following obser vations of Chief justice S. A. Rahman who wrote the above- mentioned D. B. judgment appear to me to be quite to the point in the present case: ‑

"I am inclined to the view, that the express injunction against an officer below the rank of a D. S. P. investigating an offence, unless authorized by a First Class Magistrate, should militate against the application of subsection (2) of section 156 of the Code. To that extent the rulings, which take the view that this subsection cannot be invoked by the prosecution in respect of an unauthorized investigation, may be entitled to weight. But in my humble judgment, the matter does not rest there. Even if the investigation has not been in conformity with the legal provisions of the proviso to section 3 of the Prevention of Corruption Act, it does not necessarily follow that the subsequent trial should be vitiated. The trial Court will have to decide the case on the basis of evidence led before it, and the mere fact that the agency which collected such evidence was in law not. authorized to do so should not introduce an inherent jurisdic tional defect in the trying Court. If, of course, the intention can be read into the proviso that the jurisdiction of the Court would itself be barred when an unauthorised police officer conducts the investigation, then the position might be different. But I find no words in the proviso or anywhere in the Prevention of Corruption Act, 1947 which would read to such a conclusion. The Police Officer may find himself in difficulties during the investigation if he is defied or resisted and the law may not give him protection or he may make himself liable to criminal or civil action, in certain circumstances but it is hard to see why his disabilities should prevent a Court of law from assessing the enactment, express or implied, to the contrary."

The learned Chief Justice further observed: ‑

"Presuming that the officer making the report was not duly authorised by the order of a Magistrate, his report could still be held to fall within the purview of section 190(1)(6) of the Code or, in the alternative, can be accepted as a complaint within subsection (1)(a) of that section."

The learned Chief Justice also delivered himself of the following observation: ‑

"---It is difficult to see why the jurisdiction of the trial Court should be ousted merely because the report was sub mitted by a police officer who was not authorised to i0vestigate, under the proviso to section 3 of the Prevention of Corruption Act.

In my opinion, infringement of this proviso should be regarded merely as an irregularity falling within the ambit of section 537 of the Criminal Procedure Code and unless it has caused actual prejudice to the accused, it should not be held to vitiate the trial. The distinction between an irregularity and illegality is one of degrees rather than of kind, as was made clear by the Privy Council in Pulukuri Kotayya v. Emperor. Every irregularity involves the breach of a legal provision Glen though: may be expressed in non‑mandatory terms. If an illegal arrest, as has been authoritatively held by the Privy Council, is not enough to invalidate the trial, by parity of reasoning, an investigation done in contravention of a provision of law, should not necessarily affect the competency of the trial Court."

It need be hardly pointed out that the proviso of section 3 of the Prevention of Corruption Act, 1947 is substantially the same as section 5(A) of the amended Prevention of Corruption Act, 1947. The view taken in P L D 1955 Lah. 667 was rearmed in Mst. Sadan v. The State (P L D 1965 B J 12). It was observed in this judgment:

"The investigation by the police is an antecedent proceeding. It does not serve as the foundation‑stone nor as a sine qua non of a valid trial in Court. A Police Officer, who investigates an offence which he is not empowered to investigate or makes an arrest where he is not so empowered, may find himself in difficulty during investigation if he is defied or resisted, and the law may not give him any protection, or he may make himself liable to criminal or civil action in certain circumstances, but it is difficult to see why this disability should attach itself to the proceedings in Court or prevent a court of law from taking cognizance of the offence on a report submitted by him under clause (a) or (b) of section 190 of the Code of Criminal Procedure or prevent a Court from assessing the value of evidence placed before it in the absence of a clear enactment, express or implied, preventing the Court from doing so. There is nothing in law to prevent a Police Officer from making a complaint in a case of which the facts 'lave come to his knowledge and which he cannot investigate. In any case, the jurisdiction of a Court cannot be ousted merely because a report was submitted by a Police Officer who was not authoris ed to investigate."

Nothing was urged by the learned counsel to show that the investigation in the present case up to the stage of the recovery of the tainted money by Irshad Husain, A. S. I. had caused any prejudice to the appellant.

9. In view of the above I do not think that the trial of the appellant stood vitiated on account of the fact that a part of the investigation of the case was not under proper authorization. I have already mentioned that the value of the evidence of the prosecution witnesses was not seriously questioned before me. I have gone through the evidence carefully and I do not see any good ground for drawing an inference therefrom different from the one drawn by the learned Special Judge. Of course, we have only the bare word of Muhammad Husain P. W. as regards the demand of Rs. 10 from Muhammad Husain P. W. by the appellant but we have not only the evidence of Muhammad Husain P. W., but also of Qazi Mahmood Afzal P. W., and of Irshad Husain, A. S. I. P. W., as regards the payment of Rs. 10 by Muhammad Husain P. W. to the appellant before the driving licence of Muhammad Husain P. W., was delivered by the appel lant to Muhammad Husain. Qazi Mahmood Afzal P. W. has deposed that tie overheard the appellant demanding money from Muhammad Husain P. W, when the latter asked the appellant to return his driving licence to him. One has to believe Muhammad Hussain P. W., when he states that the demand of Rs. 10 was by way of bribe because it has not been explained to us by the appellant why, if not for getting Rs. 10 by way of bribe from Muhammad Husain P. W., the appellant had retained the driving licence of Muhammad Husain P W., with him. Muhammad Husain P. W., stated that the pretext under which the appellant had taken his driving licence was that a complaint with respect to his taxi had been made to the traffic office. And it has already been noticed that according to Muhammad Rashid, Foot Cons table (P. W. 5) who was summoned with the Intimation Register of the Traffic Office, no complaint regarding Taxi No. LE‑25 10 in the month of August 1962 had been made to the Traffic Office. Nor indeed has the appellant stated in Court that any such complaint bad really been made against the appellant. On the other hand the appellant actually denied that he had taken the driving licence from Muhammad Husain, That the driving licence was delivered by the appellant to Muhammad Husain P. W. opposite to the Lahore Hotel on the evening of 2‑8‑1962, has been testified to by all the three eye‑witnesses produced by the prosecution.

10. The result is that I am fully satisfied that a case under section 161, P. P. C. and under section 5(2) of the Prevention of Corruption Act beyond all reasonable doubt has been established against the appellant. I, therefore, uphold his convicti3n but in view of the fact that he is on bail, reduce his sentence of imprison ment to the term of imprisonment already undergone by him. His sentence of fine, however, is upheld. The appeal is dismissed under modification regarding the sentence mentioned above.

Appeal dismissed.

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