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Petition for Special Leave to Appeal No. 273 of 1968, decided on 31st October 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 29th July 1968, in Criminal Appeal No. 752 of 1964).
S. 5(2)‑Illegal gratification‑Raid to trap accused‑ Magistrate conducting raid, whether required to observe provisions of S. 164, Cr. P. C. in recording statement of accused‑Special leave to appeal granted by Supreme Court to consider correctness of view expressed in P L D 1968 Lah. 101‑Criminal Procedure Code (V of 1398), S. 164‑‑ Penal Code (XLV of 1860), S. 161.
Akhtar Mir, Advocate Supreme Court instructed by Masud Akhtar, Attorney for Petitioner.
Nemo for the State.
Date of hearing : 31st October 1968.
.‑The petitioner who was at the relevant time a Reader to the Settlement Commissioner, Lahore, has been convicted under section 161 of the Pakistan Penal Code, read with section 5 (2) of the Prevention of Corruption Act, 1947, for having accepted Rs. 1,000 by way of illegal gratification from one Nazir Ahmad, for allowing him to inspect tire office file with a view to removing there-from documents against the interest of a party called Muhammad Sharif, in a case before the Settlement Commissioner.
The evidence against the petitioner was of the usual type, namely, of a trap conducted by a Magistrate deputed for the purpose, assisted by officials of the Special Police Establishment, resulting in the recovery of the bribe money from the trousers pocket of the petitioner.
The petitioner denied the recovery of the tainted money from him. His case was that it was made over by the said Nazir Ahmad to the Inspector of Police tied up in a handkerchief. In support of this case he also examined some defence witnesses.
The Courts below disbelieved the defence evidence and held that the prosecution succeeded in proving the recovery of the tainted money from him. The High Court has upheld this conviction. Hence the petitioner now seeks special leave to appeal and his contention is that the whole trial has been vitiated as the Magistrate conducting the raid had not recorded his statement in accordance with the provisions of section 164 of the Criminal Procedure Code. The statement, therefore, was inadmissible in evidence. In support of this contention the learned counsel has relied upon a Full Bench decision of the High Court of West Pakistan in the case of Ghulam Abbas v. The State (P L D 1968 Lah. 101) where two of the learned Judges of the Full Bench held that investigation in a case of this nature commenced from that time that the first step was taken by the police officer, i.e. as soon as information is given by the complainant as to the demand of a bribe. Hence the arranging of the trap and steps subsequent thereto are in the course of investigation. Therefore, any statement recorders by a Magistrate thereafter has to be in accordance with the provisions of section 164, Cr. P. C.
The correctness of the view, taken by the Full Bench of the High Court in the above mentioned case, in our view, requires examination by this Court. We, accordingly, grant leave to appeal in this case to consider the correctness of the above decision.
During the pendency of the appeal in this Court the realization of the fine imposed upon the petitioner will remain suspended but the appeal must be made ready as expeditiously as possible for hearing by the 16th December 1968.
Leave granted.
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