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Criminal Appeal No. 72 of 1968, decided on 1st May 1969.
(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) and Penal Code (XLV of 1860), S. 161‑Illegal gratification‑Case under anti‑corruption laws‑Special Police not bound to comply with requirements of Ch. XIV of Criminal Procedure Code, 1898 Accused making statement in presence of Police Officer or Magistrate conducting raid‑Police Officer and Magistrate com petent witnesses to commission of crime and statement made in their presence admissible in evidence notwithstanding provisions of S. 164, Cr. P. C. which is not attracted in such cases‑Criminal Procedure Code (V of 1898), S. 164 & Ch. XI V ‑ Penal Code (XLV of 1860), S. 161‑[Ghulam Abbas v. The State P L D 1968 Lah. 101 overruled].
A person was convicted under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947. Special leave to appeal was granted by Supreme Court to consider the plea that the whole trial had been vitiated as the Magistrate con ducting the trial had not recorded the statement of the accused in accordance with the provisions of section 164 of the Criminal Procedure Code, 1898. In support reliance was placed on the majority view in P L D 1968 Lah. 101:
Held, in arriving at the conclusions in P L D 1968 Lah. 101 the Judges plainly fell into error. They did not take into consideration the Pakistan Special Police Establishment Ordi nance VIII of 1948 and the West Pakistan Anti‑Corruption Establishment Ordinance XX of 1961 which set up Special Police force to deal with cases falling under sections 161, 162, 164, 165 and 165‑A, P. P. C. and cases of misconduct under the Prevention of Corruption Act 11 of 1947.
In 1953 the Central Government issued instructions to Special Police Establishment for starting an investigation either on its own initiative or on receipt of a complaint or information oral or written.
These instructions were issued in pursuance to the power conferred on the Central Government by subsections (2) and (3) of section 2 of the Pakistan Special Police Establishment Ordinance, 1948. The powers of the members of the Pakistan Special Police Establishment for the purpose of "inquiry" or "investiga tion" of offences, bribery and corruption are, therefore, regulated by these instructions notwithstanding anything to the contrary in the Code of Criminal Procedure. Paragraph 5 of the instructions envisages secret inquiry before the registration of the case. Even after the case is registered no report under section 173 of the Code is to be sent to the Magistrate having jurisdiction in the area where the offence has taken place. Instead a statement of facts and the proposed charge‑sheet and a draft order sanctioning prosecution are sent to the Ministry of Interior or the Provincial Chief Secretary as the case may be whereupon a show‑cause notice is issued to the accused. It is then for the authority concerned to decide whether to prosecute the Government servant in a Court of law or to take a depart mental action only. All these instructions which have the force of law are in derogation of the provisions of sections 154, 156, 157 and 173 of the Code of Criminal Procedure and to the extent of inconsistency, override the group of sections in Chapter XIV on which the Judges based their majority view.
The provisions of the West Pakistan Anti‑Corruption Establishment Ordinance XX of 1961 which was applicable to the case before the Full Bench are even more specific on the point.
Section 6 of this Ordinance empowers the Provincial Government to make rules for carrying out the purposes of the Ordinance. In pursuance to this power the Provincial Govern ment on the 30th September 1965, framed a set of rules.
The rules framed by the West Pakistan Government make a departure from the provisions of Chapter XIV of the Code of Criminal Procedure and envisage a preliminary enquiry to test the genuineness of the complaint made against a Government servant which includes trap evidence. This is explicit in the proviso to rule 6 that no prior approval is neces sary for the arrest of au officer caught red handed committing any offence specified in the Schedule to Ordinance XX of 1961. An officer is caught red handed only when a trap is laid on the complaint that he has demanded or agreed to receive a bribe. The conclusion reached by the Judges that a police officer in a corruption case neglects to record an information of a cognizable offence when he takes the informant to a Magistrate who records his statement and then lays a trap and that by adopting this method the police officer violates the mandatory provisions of Chapter XIV of the Code of Criminal Procedure a, well as section 23 of the Police Act, 1861, is, therefore, wholly erroneous:
The conclusions reached by the Judges are not in conformity with the provisions of Chapter XIV of the Code of Criminal Procedure either. The information given to the members of the Special Police Establishment or Anti Corruption Department about the demand made by Government servant for bribery cannot relate to the commission of the offence of receiving the bribe at a subsequent stage. The two offences are distinct and committed at different times. Surely, the Judges did not mean to lay down that if during the course of an investigation the accused commits another, offence within the sight of the police officer a separate F. I. R. is not to be recorded in respect of that offence or that the police officer and any other person present at that time is not a competent witness of the commission of that offence. Therefore, if the accused person makes a statement in the presence of a police officer or a Magistrate before the case is registered and investigation commences they will be competent witnesses to the commission of the offence and the statement made by the accused in their presence will notwithstanding the provisions of section 164 of the Code of Criminal Procedure be admissible in evidence. The majority view in Ghulam Abbas v. The State P L D 1968 Lah. 101 is thus from every aspect of the matter neither sustainable in law nor based on sound reasons. Since this judgment was pronounced a large number of corruption cases have failed in Courts. It appears that the Judges were: not properly advised but it falls to be said that there is a well: known adage that a Judge must wear all the laws of the country on the sleeve of his robe.
In omitting to inform themselves properly the Judges laid down a patently erroneous rule that investigation in respect of the offence of receiving bribe commences when the complainant informs the members of the Anti‑Corruption Police that a Government servant has made a demand or agreed to receive a bribe. The two offences being distinct from each other the information report about the offence of demand for a bribe cannot be tacked on to the offence committed subsequently of receiving the bribe. A fortiori the statement of the Government servant recorded at the time of recovery of the bribe money from him by a Magistrate will not attract the provisions of section 164 of the Code of Criminal Procedure.
(concurring).‑----
As far as the admissibility of a statement made by an accused person regarding the recovery of the tainted money from him, this would depend on the purpose for which the statement is being used qua the offence to which it relates. If it is found to have been made in the course of the investigation of an offence and is of a confessional nature it must conform with the require ments of section 364 of the Criminal Procedure Code, if it is proposed to use it as such in proof of that offence. If it falls short of a confession, it is to be recorded under section 164 (2) of, the Code in such manner as prescribed for the recording of evidence in Court, which in the opinion of the recording Magistrate is best fitted to the circumstances of the case. But if a confession is recorded in disregard of the formalities of the law as required, it need not be ruled out altogether as it may still be saved by the curative provisions of section 533 of the Criminal‑Procedure Code and proved by aliunde evidence, if the error committed in non‑compliance with the provisions of sections 164 and 364 of the Code has not injured the accused in his defence.
Ghularn Abbas v. The State P L D 1968 Lah. 101 overruled.
Emperor v. Kh. Nazir Ahmad A I R 1945 P C 18 ; H. N. t Nishbud and another v. State of Delhi 1955 Cr. L J 526 ; State of Uttar Perdesh v. Bhagwant Kishore Joshi A I R 1964 S C 221 ; Emperor v. Tribhuvandas Brijbhukendas I L R 26 Bom. 533 ; , Crown v. Nur Alam P L D 1955 Lah. 666 ; Ghulam Nabi v. The, State P L D 1957 Lah. 251 ; Hayat All v. The State P L D 1957 Lah. 562 and Taylor v. Taylor (1875) 1 Ch. D 426 ref.
, S. 161‑Illegal gratification‑Demand for, and its actual receipt‑Distinct offences.
Akhtar Mir, Advocate Supreme Court instructed by Masood Akhtar, Attorney for Appellant.
Aslam Riaz Hussain, Assistant Advocate‑General West
Pakistan (Abdul Hamid Malik, Advocate Supreme Court with him) instructed by Ijaz All, Attorney for the State.
Dates of hearing : 2nd and 3rd April 1969.
---The appellant stands convicted under section 161, P. P. C. read with section 5 (2) of the
Prevention of Corruption Act, 1947, for having accepted, while serving as a Reader to the Settlement Commissioner, Rs. 1,000 as illegal gratification from Nazir Ahmad (P. W. 1) for making him available an office file with a view to removing therefrom certain documents against the interest of one of the parties to a case before the Settlement Commissioner.
The evidence against the appellant was of the usual type.
A trap conducted by a Magistrate deputed for the purpose by the Additional District Magistrate, Lahore, assisted by officials of the Special Police Establishment resulting in the recovery of ten tainted currency notes of the denomination of Rs. 100 each from the trouser‑pocket of the appellant.
The appellant denied the recovery and pleaded that the marked currency notes were made over by Nazir Ahmad (P. W.) to the Inspector, Special Police Establishment, tied up in a handkerchief who, in turn, produced them before the Magistrate. In support of his case he also examined some defence witnesses. The Special Judge who tried the case disbelieved the defence evidence and held that the prosecution succeeded in proving the recovery of the bribe money from him. The High Court upheld the conviction from which special leave to appeal was granted to consider the plea that the whole trial has been vitiated as the Magistrate conducting the trial had not recorded the statement of the appellant in accordance with the provisions of section 164 of the Code of Criminal Procedure. His statement admitting the recovery was, therefore, claimed to be inadmissible in evidence.
In support of the appeal reliance was placed on the majority view in 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). two of the learned Judges of the Full Bench held that investigation in a case of this nature commences from the time that the first step is taken by the Police Officer, i.e. as soon as information is given by the complainant as to the demand of a bribe which in itself constitutes a cognizable offence. The arranging of the trap and the steps subsequent thereto including the statement of the accused recorded at the time of the recovery of the bribe money are, therefore, in the course of investigation within Chapter XIV of the Code. A fortiori the provisions of sections 162 and 164 were attracted which respectively debar the use of the statements recorded by the Police in the course of investigation except to contradict a witness in the manner provided by section 145 of the Evidence Act, 1872, and lay down a special mode for record ing any statement or confession made in the course of an investigation.
The questions referred to the Full Bench in the case of Ghulam Abbas v. The State were (f) when does investigation commence in a case under the Anti‑Corruption laws ; and (ii) whether the statement made by an accused person to the Magistrate after the raid and recovery of bribe money from him without observing the formalities of section 164 of the Code of Criminal Procedure is admissible in evidence During the hearing of the reference some ancillary points were also raised by the Bench as to the legality of the steps taken by the police officers and the Magistrate in arranging the raid and affecting recovery of the bribe money from the accused person.
It will be fair to reproduce in their own words the reasons on which the judgment delivered by two of the learned Judges of the Full Bench proceeds
5. For determining as to when does the investigations commence in a case under the Prevention of Corruption Act; it is essential to know the stage at which the offence of criminal misconduct as defined by section 5 (1) of the Prevention of Corruption Act is committed. For the purposes of this reference only clauses (a) and (b) of subsection (1) of section 5 of that Act are relevant, which are reproduced as under
5. Criminal misconduct.‑(1) A public servant is said to, commit the offence of criminal misconduct‑
(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or
(b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned ; . . . . . . .
6. A cursory glance at the language in which the above two clauses are couched will show that the moment a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, in the circumstances con templated by clause (b) of subsection (1) of section 5 of the Prevention of Corruption Act, the offence of criminal mis conduct is committed. But subsection (2) of section 5 of the Prevention of Corruption Act, which in essence corresponds to section 161 of the Pakistan Penal Code, not only makes punishable the actual commission of the offence of criminal misconduct but even an attempt at its commission.
7. By virtue of section 3 of the Prevention of Corruption Act, as it stands after its amendment by the Criminal Law Amendment Act, 1953, offences under sections 161, 162, 163, 164, 165 and 165‑A of the Pakistan Penal Code have been made cognizable for the purposes of the Code of Criminal Procedure section 5 of which ordains that all offences under the Pakistan Penal Code shall be investigated inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure and all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences. Now section 5‑A of the Prevention of Corruption Act lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1898, no officer below the rank of Inspector of Police shall investigate any offence punishable under sections 161, 162, 163, 164, 165 and 165‑A, P. P. C., or any offence punishable under section 5 of the Prevention of Corruption Act, without an order of a Magistrate of the First Class or make any arrest therefore without a warrant. Apart from this, there is no other provision in the Prevention of Corruption Act, 1947, as to investigation. Even the Pakistan Special Police Ordinance, 1948, deals only with the constitution, powers, duties, privileges, liabilities, superintendence and administration of the special police, and nothing is provided therein as regards the manner of investiga tion. It would seem, therefore, that nothing having been provided in the Prevention of Corruption Act as to the manner f investigation, the provisions of the Code of Criminal Procedure in respect of investigation are applicable to the offences under sections. 161, 162, 163, 164, 165 and 165‑A, P. P. C. and to the offence of criminal misconduct under the Prevention of Corruption Act.
8. At this stage it would be relevant to refer to Chapter XIV of the Code of Criminal Procedure which deals with informa tion to the police and their powers to investigate cognizable and non‑cognizable offences. Section 154 of the Code lays down that every information relating to the commission of a cognizable offence, if given orally to an officer‑in‑charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant ; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. Subsection (1) of section 156 of the Code confers powers on an officer‑in‑charge of a police station to investigate any cognizable case, in the local are within the limits of such station without the order of a Magistrate, but this provision so far as the cases in hand are concerned, is to be read subject to the provision of section 5‑A of the Prevention of Corruption Act, 1947 and Pakistan Special Police Ordinance, 1948. The succeeding section, i.e. section 157, says that if from informa tion received or otherwise, an officer‑in‑charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribed in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. No doubt section 157 of the Code requires the police officer to proceed to the spot to investigate, but this does not mean that investiga tion under Chapter XIV does not begin until the police officer reaches the spot. Under proviso (a) to subsection (1) of section 157, when the case is not serious, investigation need not be at the spot as distinguished from proviso (b), in which case investigation may be dispensed with altogether. A police officer may investigate without information : (section 157 (1)) or he may not investigate at all (section 157(1)(b)). Moreover, "investigation" includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf : (See section 4, subsection (1), clause (i). "Collection of evidence" means collection of material to be used as evidence. Section 160 of the Code, which is the next relevant section, empowers a police officer making an investigation, to require by an order in writing the attendance before himself of any person, being within the limits of his own or an adjoining police station, who from the information given or otherwise, appears to be acquainted with the circumstances of the case ; and such person shall attend as so required. Subsection (3) of section 161 provides for the reducing into writing by the police officer of the statement made to him by any person in the course of an examination, which statement can be used in the manner provided under section 162, Cr. P. Code.
9. On the analysis of the various relevant provisions of Chapter XIV of the Code of Criminal Procedure in the preceding paragraphs and after hearing the arguments addressed at the bar, I am of the opinion that the offence under section 161, P. P. C. or for that matter that of criminal mis conduct under the Prevention of Corruption Act, 1947, is committed, the moment a demand for bribe is made by a public servant. A police officer, on receipt of information from any person regarding its commission or attempt at its commission, is bound to comply with the requirements of Chapter XIV of the Code of Criminal Procedure relating to cognizable offences, so far as they are applicable to an offence under the Prevention of Corruption Act and if on the basis of the aforesaid information he has reasons to suspect the commission of the offence, and takes steps towards the entertainment of the offence and the culprit thereof, then investigation will be deemed to have commenced. It is often seen that a police officer in a corruption case neglects to record an "information of a cognizable offence" and instead takes the informant to the Magistrate, nominated by the appropriate authority for his statement being recorded and thereafter a trap is laid. By adopting this method the police officer violates the mandatory provisions of Chapter XIV of the Criminal Procedure Code ; and section 23 of the Police Act, 1861."
Support for this view was found in Emperor v. Kh. Nazir Ahmad (A I R 1945 P C 18), H. N. Nishbud and another v. State of Delhi (1955 Cr. L J 526), State of Uttar Perdesh v. Bhagwant Kishore Joshi (A I R 1964 S C 221) and Emperor v. Tribhuvandas Brijbhukendas (I L R 26 Bom. 533). These judgments deal with the provisions of sections 154, 156 and 157 and the definition of investigation in section 4 of the Code of Criminal Procedure. In the fiat case the Judicial Committee considered that the receipt and recording of an information report under section 154 is not a condition‑precedent to the setting in motion of a criminal investigation. In the next case the learned ‑ Judges set out the steps generally taken in the course of investigation under Chapter XIV of the Code of Criminal Procedure. In the third case the Supreme Court of India followed the dictum of the Judicial Committee that the recording of an information report was not a condition‑precedent to the setting in motion of a criminal investigation. In the last‑mentioned case the learned Judge of the Bombay High Court observed that the definition of the term investigation' in section 4 is not exhaustive and that it would be placing an undue limitation on the simple meaning of the word to hold that a Police Inspector who had got information that persons were carrying on wagering business and having satisfied himself had obtained a warrant under section 6 of the Gambling Act and effected the arrest of the accused had not taken any part in the investigation into the offence in respect of which the accused was prosecuted.
In reply the State counsel relied on Crown v. Nur Alam (P L D 1955 Lah. 666), Ghulam Nabi v. The State (P L D 1957 Lah. 251) and Hayat All v. The State (P L D 1957 Lah. 562). The first of these decisions was considered to be not relevant as it dealt with the effect of non‑compliance with the proviso to section 3 of the Prevention of Corruption Act, 1947, as it stood before the amendment introduced by the Criminal Law Amend ment Act, 1953. The other two judgments were directly in point, but the learned Judge after giving "conscious consideration to the question posed" formed the view that‑
after the police officer concerned receives information regarding the commission of an offence under section 161, 162, 163, 164, 165 or 165‑A, P. P. C. or of an offence of criminal misconduct as defined in section 5 (1) of the Prevention of Corruption Act and, on the basis of that information, has reason to suspect the commission of such an offence, the investigation commences in the case, and any step taken by that police officer, subsequent to the receipt of aforesaid information and the entertainment of suspicion regarding the commission of the offence and the culprit thereof, will be a step in the course of investigation.
This disposed of the first ‑of two questions before the Full Bench.
The answer to the second question followed ipso facto. In Nazir Ahmad v. King‑Emperor the Judicial Committee laid down that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Their Lordships relying on the doctrine Taylor v. Taylor ((1875) 1 Ch. D 426) considered other methods of performance as necessarily forbidden and concluded that although the Magistrate acting under Chapter XIV of the Code of Criminal Procedure is not acting as a Court yet he is a judicial officer "and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to section 164." Following this dictum the learned Judge concluded
. . . if the Magistrate supervises the raid and records the statement of an accused person at the time of the raid without complying with the requirements of sections 164 and 364 ; he cannot be permitted in law to enter the witness‑box as an ordinary citizen and depose as to the extra‑judicial confession of the accused person at the time of his trial.
On these premises the second question before the Full Bench was answered in these terms
Therefore, the answer to the second question is that the statement by an accused of the commission of an offence of criminal miso0nduct, on being halted by the Magistrate is not admissible in evidence, as the same was not recorded by the Magistrate in the manner prescribed by sections 164 and 364 of the Criminal Procedure Code.
In arriving at the conclusions reproduced above the learned Judges plainly fell into error. They did not take into considera tion the Pakistan Special Police Establishment Ordinance VIII of 1948 and the West Pakistan Anti‑Corruption Establishment Ordinance XX of 1961 which sot tip special police force to deal with cases falling under sections 161, 162, 164, 165 and 165‑A,I P. P. C. and cases of misconduct under the Prevention of Corruption Act II of 1947. Section 2 of Ordinance VIII of 1948 provides
"2.‑(1) Notwithstanding anything in the Police Act, 1861, the Central Government may constitute a special police force to be called the Pakistan Special Police Establishment for inquiry into, and investigation of offences notified under section 3.
(2) Subject to any order which the Central Government may make in this behalf, members of the Pakistan Special Police Establishment shall, for the purpose of any inquiry or investiga tion under subsection (1), have throughout Pakistan all the powers of search, arrest of persons, and seizure of property and all other powers, duties, privileges and liabilities which the police officers of a Province have in connection with the investigation of offences
Provided that no member of the Special Police Establishment shall have any power to inquire into the bank accounts of any person.
(3) Any member of the said police establishment of or above the rank of Sub‑Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in Pakistan any of the powers of the Officer‑in‑Charge of a police station in the area in which he is for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an Officer‑in‑Charge of a police station discharging the functions of such an officer within the limits of his station."
In 1953 the Central Government issued the following instructions to Special Police Establishment for starting an investigation either on its own initiative or on receipt of a complaint or information orator written
"2. When the identity of the complainant is not known, as will happen when the complaint is anonymous or pseudony mous, the Establishment shall not register a case unless they are able to obtain, by the preliminary enquiry, independent corroboration of the allegations made in the complaint.
3. When the identity of the complainant is known, the Establishment shall ascertain from him full facts in support of his allegation and shall, after doing so, proceed in the manner laid down in the succeeding paragraph.
4. If the preliminary enquiry, referred to in paragraphs 2 and 3 above, shows that there is reason to suspect the commission of an offence which the Establishment empowered to investigate the Establishment shall at once send a brief statement of the case to the competent authority and seek its concurrence, to the registration of the case. On receipt of this concurrence the Ministry or Department under which the Government servant concerned is serving shall be informed of the registration of the case;
Provided that a reference to the competent authority shall not be necessary in the case of these Government servants who are not Government servants by section 197 of the Code of Criminal Procedure:
Provided further that the Establishment may register a case against any Government servant at once if, for reasons to be recorded it considers that delay in investigation will, or is likely to, result in the disappearance of, or in tampering with, the evidence or in immediate loss to Government when registration is effected, action taken along with reasons there fore shall be forwarded by the Establishment at the earlier opportunity to the competent authority.
5. Before the registration of a case, all inquiries shall be secret as far as possible. After a case has been registered, investigation shall proceed with care and discretion and no undue publicity shall be given to it. Special case shall be taken to ensure that no unnecessary damage is caused to the prestige, reputation and dignity of the Government servant involved in the case."
After the investigation is completed the Special Police Establish ment is required to submit to the Ministry of Interior in the case of Central Government servants and to the Chief Secretary of the Provincial Government in the case of Provincial Government servants full facts of the case, the opinion of the legal adviser, the draft sanction order, a charge sheet and a brief statement of the allegations to be supplied to the accused Government servant. Then follow provisions of giving a show‑cause notice to the Government servant concerned why he should not be prosecuted in a Court of law. After the reply has been received the Government may decide either to prosecute him in a Court of law or take departmental action against the Government servants.
The instructions reproduced above were issued in pursuance to the power conferred on the Central Government by sub sections (2) anal (3) of section 2 of the Pakistan Special Police Establishment Ordinance, 1948. The powers of the members of the Pakistan Special Police Establishment for the purpose of "inquiry" or "investigation" of offences, bribery and corruption are, therefore, regulated by these instructions notwithstanding anything to the contrary in the Code of Criminal Procedure. As seen paragraph 5 of the instructions envisages secret inquiry before the registration of the case. Even after the case is registered no report under section 173 of the Code is to be sent to the Magistrate having jurisdiction in the area where the offence has taken place. Instead a statement of facts and the proposed charge‑sheet and a draft order sanctioning prosecution are sent to the Ministry of Interior or the Provincial Chief Secretary as the case may be whereupon a show‑cause notice is issued to the accused. It is then for the authority concerned to decide whether to prosecute the Government servant in a Court of law or to take a departmental action only. All these instruc tions which have the force of law are in derogation of the provisions of sections 154, 156, 157 and 173 of the Code of Criminal Procedure and to the extent of inconsistency override the group of sections in Chapter XIV on which the learned Judges based their majority view.
The provisions of the West Pakistan Anti‑Corruption Establishment Ordinance XX of 1961 which was applicable to the case before the Full Bench are even more specific on the point. Section 3 provides that
"3 (1) Notwithstanding anything contained in any other law for the time being in force, Government may constitute an establishment to be known as the Anti‑Corruption Establishment, for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determination whether such offences shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held
(2) The Establishment shall consist of a Director and such number of officers and members as may be determined by Government.
(3) Subject to the provisions of section 4, the pay and other conditions of service of the Director, officers and members of the Establishment shall be such as may be determined by Government.
(4) Subject to any orders or rules which Government may make in this behalf, the Director, officers and members of the Establishment shall throughout the Province, in relation to the investigation of offences mentioned in the Schedule and the arrest of persons involved in such offences, have all the powers, perform all the duties, possess all the privileges and be subject to all the liabilities which a police officer has, or is subject to, in connection with the investigation of offences under the Code of Criminal Procedure, 1898.
(5) Subject to any orders of Government in this behalf, any officer of the Establishment of or above the rank of a Sub-Inspector may, in relation to the offences mentioned in the Schedule, exercise any of the powers of the officer‑in‑charge of a police station within the meaning of clause (p) of sub section (1) of section 4 of the Code of Criminal Procedure, 1898, in the area in which he is for the time being posted, and when so exercising such powers shall be deemed to be an officer‑in‑charge of a police station discharging the functions of such an officer within the limits of his station."
Section 6 empowers the Provincial Government to make rules for carrying out the purposes of the Ordinance. In pursuance to this power the Provincial Government on the 30th September 1965, framed a set of rules which inter alia provide as under "Rule 2.
(b) "Committee" means an Anti‑Corruption Committee referred to in rule 3
(c) "Council" means the Provincial Anti‑Corruption Council.
Rule 4. Constitution and the functions of the Committee.‑(1) The Council and the various Committees shall each consist of a Chairman, a Secretary and such other number of official members, not exceeding four, as may be fixed by Government.
(2) The holders of such offices as may be specified by Government shall ex officio be the Chairman, Secretary or members of the Council and the Committees.
5. Jurisdiction and Procedure.‑(1) Every inquiry or investi gation under the provisions of subsection (1) of section 3 of the Ordinance shall be subject to the control and directions of the council or the appropriate committee.
(2) The jurisdiction of the Council and the Committees, and the class of enquiries or investigation over which they shall exercise control and direction shall be such as Government may direct from time to time.
6. Investigation and enquiries against public servants.‑(1) Subject to the provisions of sub‑rules (2) and (3) and rule 5, the Director or Superintendent or any other officer not below the rank of Sub‑Inspector of Police authorised by the Director or Superintendent in that behalf, may within their respective jurisdiction and suo mote or on the application made by any person or on a reference received from Government, the Council, the Committee concerned or a Head of a Department, initiate an inquiry or investigation against any Government servant or an employee of an autonomous body established under a Statute and under the control of Government to whom the provisions of the Ordinance are applicable.
(2) No enquiry or investigation under the Ordinance shall be taken up against a public servant holding a gazetted post or an equivalent post without the prior approval of the Council or the appropriate Committee, nor shall any such public servant be arrested for any offence specified in the Schedule to the Ordinance ACS/L‑2/61, dated 19‑12‑1966 without the prior approval of the Chief Secretary
Provided that such prior approval shall not be necessary for the arrest of an officer caught red handed committing any offence specified in the Schedule to the Ordinance.
(3) Nothing contained in sub‑rule (2) shall be deemed to preclude the Director from holding an enquiry for the purpose of establishing the identity of a complainant lodging a report of the commission of an offence specified in the Schedule to the Ordinance or testing the genuineness or otherwise of complaint lodged in respect of any such offence limited to the examination of the complainant alone, without prior approval of the Council or the appropriate Committee
Provided that no corroboratory evidence or documents shall be collected from any person other than the complainant without the prior approval of the Council or the appropriate Committee
Provided further that no enquiry or investigation whatsoever for establishing the identity of the complainant or genuineness of complaint against a public servant of or above the status of a Commissioner, Additional Commissioner in charge of a Division, Secretaries to Government, or Head of an Attached Department shall be undertaken without the prior approval of the Council."
We thus find that the rules framed by the West Pakistan Govern ment make a departure from the provisions of Chapter XIV of the Code of Criminal Procedure and envisage a preliminary enquiry to test the genuineness of the complaint made a against a Government servant which includes trap evidence. This is explicit in the proviso that no prior approval is necessary for the arrest of an officer caught red handed committing any offence specified in the Schedule to Ordinance XX of 1961. An officer is caught red handed only when a trap is laid on the complaint that he has demanded or agreed to receive a bribe. The conclusion reached by the learned Judges that a police officer in a corruption case neglects to record an information of a cognizable offence when he takes the informant to a Magistrate who records his statement and then lays a trap and that by adopting this method the police officer violates the mandatory provisions of Chapter XIV of the Code of Criminal Procedure as well as section 23 of the Police Act, 1861, is, therefore, wholly erroneous.
We further find that the conclusions reached by the learned Judges are not in conformity with the provisions of Chapter XIV of the Code of Criminal Procedure either. The information given to the members of the Special Police Establishment on Anti‑Corruption Department about the demand made by a Government servant for bribery cannot relate to the commission of the offence of receiving the bribe at a subsequent stage. The two offences are distinct and committed at different times. Surely, the learned Judges did not mean to lay down that if during the course of an investigation the accused commits another offence within the sight of the police officer a separate F. I. R., is not to be recorded in respect of that offence or that the police officer and any other person present at that time is not a competent witness of the commission of that offence. Therefore, if the accused person makes a statement in the presence of a police officer or a Magistrate before the case is registered and investiga tion commences they will be competent witnesses to the commission of the offence and the statement made by the accused in their presence will notwithstanding the provisions of section 164 of the Code of Criminal Procedure be admissible in evidence.
The majority view in Ghulam Abbas v. The State is thus from every aspect of the matter neither sustainable in law nor based on sound reasons. We were informed by the learned Assistant Advocate‑General that since this judgment was pronounced a large number of corruption cases have failed in Courts. It appears that the learned Judges were not properly advised, but it falls to be said that there is a well‑known adage that a Judge must wear all the laws of the country on the sleeve of his robe. The trap evidence was in vogue in the sub‑continent for a very long time and no one had challenged its legality. Two earlier decisions of the High Court were cited before the Full Bench in which it was held
. . the offence of accepting bribe is completed when the recovery of the tainted money is affected from the accused, and so long as the Magistrate remains in charge of the raid proceedings and does not hand over the relevant papers to the police officer concerned and directs him to proceed in the matter, an investigation in the case has till then not started.
It was, therefore, all the more necessary for the learned Judges to have examined the relevant provision of law before formulating their conclusions which were calculated to have such far reaching effect on the administration of criminal justice in the country. In omitting to inform themselves properly the learned Judges, laid down a patently erroneous rule that investigation in respect of the offence of receiving bribe commences when the complainant informs the members of the Anti‑Corruption Police that a Government servant has made a demand or agreed to receive a bribe. The two offences being distinct from each other the e information report about the offence of demand for a bribe cannot be tacked on to the offence committed subsequently of receiving the bribe. A fortiori the statement of the Government servant recorded at the time of recovery of the bribe money from him by a Magistrate will not attract the provisions of section 164 of the Code of Criminal Procedure.
As leave to appeal was granted only to consider the correct ness of the decision in Ghulam Abbas v. The State it is unnecessary to refer in detail to the facts of the case on which the conviction of the appellant is based. There was evidence of demand for bribe and recovery of the tainted currency notes from the trouser‑pocket of the appellant. The explanation that the currency notes were produced before the Magistrate by Nazir Ahmad (P. W.) was considered by the Courts below and found to be incorrect. No ground for interference by this Court is, in the circumstances, made to appear. The appeal is dismissed.
----I agree, and would like to add in affirma tion of my view as expressed in my minority judgment in the Full Bench case of Ghulam Abbas v. The State (P L D 1968 Lah. 101) of which I was a member in the High Court, that the point of time when investiga tion for an offence starts, is the point when the investigation is actually taken in hand by a competent investigating officer and not when it may be taken in hand by him. The demand for illegal gratification and its actual receipt, are separate and distinct offences although forming part of a continuing process. Whether the investigation has commenced for one offence or the other would depend on what the investigating officer has actually done in taking a positive step in the investigation of the offence which he has decided to investigate.
As far as the admissibility of a statement made by an accused person regarding the recovery of the tainted money from him, this would depend on the purpose for which the statement is being used qua the offence to which it relates. If it is found to have been made in the course of the investigation of an offence and is of a confessional nature it must conform with the requirements of section 364 of the Criminal Procedure Code, if it is proposed to use it as such in proof of that offence. If it falls short of a confession, it is to be recorded under section 164(2) of the Code in such manner as prescribed for the recording of evidence in Court, which in the opinion of the recording Magistrate is best fitted to the circumstances of the case. But if a confession is recorded in disregard of the formalities of the law as required, it need not be ruled out altogether as it may still be saved by the curative provisions of section 533 of the Criminal Procedure Code and proved by aliunde evidence, if the error committed in non ‑compliance with the provisions of sections 164 and 364 of the Code has not injured the accused in his defence.
K. B. A. Appeal dismissed.
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