Find a Lawyer

Criminal Appeal No. 721 of 1955 decided on 3rd October, 1955, from the order of Qadir Bakhsh, Special Judge, Punjab, Lahore, dated the 21st July, 1955.

-----Ss. 156 (2), 190 (1) (a) (b)‑Irregularity in investigation does not affect jurisdiction of Court‑Trial not vitiated‑Proceedings of Magistrate during raid in respect of the offence of taking illegal gratification ‑Not investigation.

Any irregularity in the investigation does not affect the jurisdiction of the trial Court.

The conviction or acquittal of an accused person does not depend upon the question what particular officer actually conducts the investigation, which results in his trial. The case is determined on the evidence that is given at the trial against an accused person, and the question whether that evidence has, in the first place, been collected by an officer not authorised to do so is of very minor importance and does not really affect the result of a trial.

The offence of taking illegal gratification under section 5 (2) Prevention of Corruption Act (II of 1947) was alleged to have been investigated by a Sub‑Inspector, Anti‑ Corruption Department, in violation of section 3 of the Act and it was contended that the trial was vitiated.

Held, that apart from the fact that subsection (2) of section 156, Criminal P. C. was perhaps an adequate answer to this contention, the report of the officer who was not duly authorised by the order of a Magistrate to investigate the case could still be held to be covered by the provisions of section 190 (1) (b) of the Code of Criminal Procedure or in the alternative it could be accepted as a complaint within subsection (1)(a) of that section.

Proceedings of the Magistrate during the raid in respect of an offence of taking illegal gratification cannot be deemed to be investigation.

S. 403 Acquittal not on merits‑Re‑trial not illegal. The Sessions Judge acquitted the accused in appeal on ground of a defect in sanction for prosecution of the accused under section 5 (2) Prevention of Corruption Act (II of 1947) the defect, namely, that the officer granting the sanction des cribed himself as the Deputy Commissioner, instead of as the Collector.

Held that the acquittal not being on merits did not fall within purview of section 403, C. P. C.

Mian Hamid‑ud‑Din, for Appellant.

Ijaz Ali O. S. D. for Respondent.

.‑The appellant, Salah‑ud‑Din, has been convicted under section 5 (2) of the Prevention of Corruption Act, 1947, for having accepted a bribe of Rs.80, when employed as a field qanungo, from Fazal Din P. W. on the 22nd of July 1951, as a reward for ejecting one Saudagar, his old tenant in execution of a warrant of ejectment, and sentenced to one year's rigorous imprisonment, and has been further ordered to pay a fine of Rs.200 or undergo further rigorous imprisonment for three months in default of payment of fine. He preferred an appeal through Mr. S. M. Anwar, Advocate, which has been argued before me by Mian Hamid ud‑Din, Advocate, Mr. Ejaz Ali, Advocate, appearing for the Crown.

The facts leading up to this case are that on the 27th of June 1951, a warrant of ejectment (Exh. P. A) was issued by Mian Muhammad Saeed, Assistant Collector, Qasur, on the application of Fazal Din (P. W. 3) and was given dasti to him for handing it over to the Tehsildar, Qasur, to whom it was addressed. The warrant was personally taken to the Tehsildar, Qasur, by the complainant, who in his turn made it over to the complainant with an endorsement that the warrant should be executed by the appellant. Fazal Din delivered this warrant personally on 28th June 1951, to him. In this warrant the Collector had directed the Tehsildar, Qasur, that Fazal Din should be put in possession of the land immediately and that a report of compliance should be sent to him by the 10th of July 1951. According to Fazal Din, he visited the appellant some ten or twelve times after the 27th of June 1951 and requested him to execute the warrant. The appellant, from the very start, had demanded an illegal gratification of Rs.100. The complainant took a recommendatory letter from one Abdullah Khan, who, has now appeared as a defence witness, to the' appellant who reduced his demand by Rs.20 as a result of this sifarish. The complainant asked for more reduction and when he found that the appellant was not willing to reduce the amount, he came to Lahore and contacted Khan Muhammad Khan (P. W. 4) and requested him for a note being given in his newspaper, Nawa‑i‑Waqt, that the appellant was demanding bribe from him. Khan Muhammad Khan advised the complainant that he should contact the Anti‑Corruption Department for redress. The complainant appeared before Abdul Ghafur, Sub Inspector of the Anti‑Corruption Department, (P. W. 2), and apprised him of the facts. Abdul Ghafur P. W. took him to Qasur on the 22nd of July, 1951 and made the application (Exh. P. D.) for arranging a raid to the Duty Magistrate, Sheikh Ijaz Ahmad, Magistrate 2nd Class. Consequently, a raid was arranged at about 5 p.m. 9n the same day. Before proceeding to the house of the appellant, the Magistrate recorded the statement of the complainant, took down the numbers of the currency notes and returned them to Fazal Din P. W. after satisfying himself that no further money had been left on his person. Fazal Din was then directed to go to the appellant and pass to him the tainted money. The Magistrate and other members of the party followed him and took position behind some reeds in the dera of Sayyed Abdul Qadir, Inspector Octroi, Qasur, at point marked 'M' in, the plain (Exh. P. J.), at a distance of sixty paces opposite to the house of Salah‑ud‑Din.

The complainant approached the appellant and found him sitting outside the door of his house with certain other persons. He took him aside and offered him a bundle of currency notes as illegal gratification. While the complainant and the appellant were talking together, the other persons present there left the place. The appellant placed the money in the dab of his loin cloth and directed the complainant to see him after one day when he would get him physical possession of his land from Saudagar, his tenant. At this juncture, the Magistrate, accom panied by the Sub‑Inspector, appeared on the scene. The appellant, on seeing them coming, entered his house although the Magistrate called him to listen before he entered the same. The appellant, however, went inside his house and emerged a short time afterwards. The Magistrate disclosed his identity to the appellant and asked him to deliver the amount which he had received from Fazal Din P. W. The appellant denied this allegation. The Magistrate and the Sub Inspector entered his house and searched his baithak and deorhi. Nothing was, however, recovered from these two rooms. The sub Inspector peeped into a blind alley behind the door of the deorhi and found the tainted currency notes lying on a heap of rubbish in the shape of a bundle. The Sub Inspector called the Magistrate and pointed out to him the bundle of currency notes lying on the heap of rubbish. The Sub Inspector picked up the currency notes and produced them before the Magis trate. These were taken into possession through recovery list (Exh. P. F.). The warrant of possession which Fazal Din had handed over Magistrate then asked the appellant to make over to him for execution. The appellant produced the warrant (Exh. P. A.) from his house which was taken into possession through recovery list (Exh. P. G.). The Magistrate drew up the report of his raid (Exh. P. H.) and handed over the papers to Abdul Ghafur, Sub Inspector, for action. The Sub Inspector took permission (Exh. P. K.) from the Sub Divisional Magistrate, Qasur, on 23rd July, 1951, for the investigation of this case. He got the case registered at City Police Station, Qasur, with Sardar Muhammad Ibrahim, Station House Officer, (P. W. 5). The appellant was suspended with effect from 27th July, 1951. Abdul Ghafur completed the investigation and, after obtaining sanction (Exh. P. Z.) from Mr. S. S. Jafri, the 'then Deputy Commissioner, Lahore, on 27th July, 1951, challaned the appellant. The case was first heard and decided by Mian Muhammad Saeed, Sub Divisional Magistrate, Qasur, on 22nd April, 1952, who convicted the appellant under section 161 P. P. C., and sentenced him to undergo one year's rigorous imprisonment. On appeal, Mr. P. R. B. May, the then Sessions Judge, Lahore: acquitted him on the ground that the sanction for his prosecution on the file was signed by Mr. S. S. Jafri not as Collector, District Lahore, but as Deputy Commissioner, Lahore. On the authority of Criminal Revision No. 695 of 1951, he held this sanction as unlawful and accepted the appeal. He, however, observed in his judgment that it will be for the Collector of the District now to take further action or not as he may be advised. This order is dated 31st of May, 1952. A new sanction was obtained on the 19th of August, 1952 from Sayyed Ijaz Hussain Shah, Collector Lahore, who succeeded Mr. S. S. Jafri, and the appellant was retried for accepting illegal gratification from Fazal Din. The case was first heard by Khan Muhammad Shafi Khan, but was ultimately transferred to the Court of Chaudhry Qadir Bakhsh, Special Judge, Punjab, Lahore, on the 12th of July, 1954, after Criminal Law Amendment Act, 1948, as further amended by Act XXXVII of 1953, had come into force with effect from the 17th of November, 1953.

The appellant pleaded not guilty and adduced defence.

He made the following statement

"Warrant Exh. P. A. was time barred when I received it. Fazal Din complainant brought pressure on me that I should eject Sodagar. I abused the complainant telling him that I could not do anything for him as the warrant was time barred. When Fazal Din complainant came to me again, some persons were sitting with me. He called me aside and told me that he had brought a letter of recommenda tion for me. I told the complainant that he could have delivered it to me in the presence of the persons who were sitting there and I then took my seat. I was called in and as I was about to enter the house I heard somebody calling 'Girdawar Sahib, listen to me. I did not know Sheikh Ijaz Ahmad or the S. I. I was on the threshold of the baithak when I came out. I was told that I had received illegal gratification from Fazal Din complainant. I told the officers that it was absolutely incorrect. My person was searched and I had no money on my person. My baithak and the deorhi were also searched for the currency notes. I do not know wherefrom they brought the currency notes (Exh. P. 1)". .

The appellant examined seven witnesses in his defence. D. W. 1, Chaudhry Sardar Muhammad, Naib Tehsildar, merely gave him good character. Muhammad Shafi Qureshi (D. W. 2) deposed nothing in favour of the appellant and averred that he was not present at the time of the raid. Abdullah Khan (D. W. 3) is the person who wrote the letter alleged to have been received by the appellant from Fazal Din P. W, on the day of the occurrence. Mian Mahmood Hussain (D. W. 4), Zulfiqar Ali Khan (D. W. 5) and Ajarey Khan (D. W. 6) did not state anything with regard to the actual occurrence; the last two witnesses, however, produced certain documents at the instance of the appellant. These documents were his character roll and the service book and an order (Exh. D. W. 5%A) signed by the S. D. O. Qasur. D. W. 7, Asadullah Khan, is the only important witness among the witnesses produced by the appellant in his defence. He stated that he was present when the complainant handed over a letter to the appellant, and added that the appellant returned that letter to the complainant. Then said that the appellant kept that letter with him. He saw Sheikh Ijaz Ahmad Magistrate along with one other person approaching the appellant. He never made any statement before the police and does not remember when this occurrence took place. I find his evidence worthless and reject the same as unreliable. The net result is that this case must succeed or fail on the strength of the prosecution evidence.

The main case for the prosecution is stated in the evidence of Fazal Din (P. W. 3), the substance of which has already been stated and is also given in detail in the judgment of the learned Special Judge. This evidence is corroborated by Sheikh Ijaz Ahmed (P. W.1) and Abdul Ghafur, Sub Inspector, Anti‑Corruption Department, Lahore, (P. W. 2). The last mentioned two witnesses stated that they themselves saw from a distance of some sixty paces the money being passed on to the appellant by the complainant. They further deposed that they called the appellant while he was entering his house and asked him to wait and listen to them, but the appellant entered his house and came out after a short time. The evi dence of Khan Muhammad Khan (P. W. 4), Sardar Muhammad Ibrahim, Sub Inspector Police (P. W. 5), Sheikh Khadim Hussain, Reader to the Tehsildar Chunian, (P. W. 6) and S. Safdar Hussain, Ahlmed to the S. D. O. Qasur, need not be detailed in this judgment since it is purely of a formal nature and has no direct bearing on the point in issue.

The learned counsel for the defence have raised certain legal points in the case and I wish to dispose them of before concluding this judgment. He contends that Sheikh Abdul Ghafur, Sub‑Inspector, Anti‑Corruption Department, Lahore, was not competent to investigate this case, and, therefore, the trial was vitiated. This argument assumes that Sheikh Abdul Ghafur investigated the case while as a matter of fact he did not do so. The investigation in the case alluded to by Mian Hamid‑ud‑Din, Advocate, are the proceedings of the raid party only and cannot be characterised as investigation because unless an offence is committed the question of any investiga tion into it does not generally arise. But even if Sheikh Abdul Ghafur did investigate the case, which should have been investigated by the Station House Officer, Qasur, I find nothing legally wrong with it. Subsection (2) of section 156 of the Code of Criminal Procedure would perhaps be an adequate answer to this contention. Subsection (2) reads as follows :‑

"No proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate".

The conviction or acquittal of an accused person does not depend upon the question what particular officer actually conducts the investigation which results in his trial. The case is determined on the evidence that is given at the trial against an accused person, and the question whether that a evidence has, in the first place, been collected by an officer not authorised to do so is of very minor importance and does not really affect the result of a trial. Even if it is assumed that proviso to section 3 of the Prevention of Corruption Act (II of 1947) is repugnant to the provisions of the Criminal P. C. and the general enactment would pro tanto be abrogated or amended, the report of the officer who was not duly autho rised by the order of a Magistrate to investigate the case could still be held to be covered by the provisions of section 190 (1) (b) of the Code of Criminal Procedure or in the alternative it could be accepted as a complaint within subsection (1) (a) of that section. There .is nothing in law, to prevent a police officer making a complaint in a case of which the facts have come to his knowledge. I am of the opinion, therefore, that any irregularity in the investigation will not affect the jurisdiction of the trial Court merely) because the report was submitted by a police officer who was not competent to investigate the case.

It was next contended that the permission to investigate the case was a farce as the entire investigation had already been completed before the first information report was lodged. I have already explained in connection with the first conten tion of the learned counsel for the defence that this argument cannot prevail because the proceedings of the Magistrate during the raid cannot be deemed an investigation. This contention is without substance and I repel the same.

It was next contended that the appellant's acquittal by Mr. P. R. B. May, Sessions Judge, Lahore, on 31st of May, 1952, is a complete bar to the present trial. The sanction by Mr. S. S. Jafri on the file, at the time of the first trial of the appellant, showed that he had given this sanction as Deputy Commissioner, Lahore, and not as Collector. The learned Sessions judge, holding this sanction as invalid, acquitted Salah‑ud‑Din. It can hardly be denied that this was not an acquittal on merits of the case. As the order of Mr. P. R. B. May was not an acquittal on merits, it does not fall within the purview of section 403 of the Code of Criminal Procedure, and this argument of the learned counsel for the defence is also without force.

The last contention of the learned counsel for the appellant was that the present sanction on the file was given in routine by the Collector and he had not applied his mind to the facts of this case before granting the same. I have seen the document and do not find anything in it which might give rise to any such suspicion. The silent features of the allega tion against the appellant are clearly and explicitly stated in this document and I do not see what else it should have contained.

Coming now to the prosecution case, I find that the witnesses to the recovery of the tainted money from the lane are wholly independent and of respectable persons. Their evidence has not been successfully challenged before me by the learned counsel. Fazal Din P. W., who is an aggrieved person in this case, may have had some reason to introduce some slight exaggerations in the case, but there is nothing on the record to show that he was not a truthful witness. There was no previous ill‑will between Fazal Din and the appellant and I see no reason why Fazal Din should depose falsely against him. The learned counsel contends that when the Magistrate and the Sub Inspector started search of the house of the appellant the complainant was left outside the house and it is possible that the tainted money may have been still in his possession and he might have thrown it into the alley from over the wall which adjoins the house of the appellant and closes the street on that end. If the currency notes had been thrown from over the wall they would have been scattered and could not have been lying in a bundle on the heap of rubbish. The statement of Sheikh Ijaz Ahmad is quite clear on the point. He says that he saw Fazal Din handing over the bundle of notes to the Qanungo and it was then that he and the Sub Inspector hurriedly proceeded towards the house of the appellant. He further stated that when they were at a distance of fifteen to twenty karams from the house of the field Qanungo, he immediately entered his house on seeing them. He, however, admitted that he could not see the notes being given to the appellant, but what he saw was a bundle. The learned counsel further argued that the fact of recovery of the currency notes in the form of a bundle is neither mentioned in the recovery memorandum nor in the report. I do not attach any importance to this omission, because all the details of the case are not expected to be entered into these documents. It is only when the witnesses appear in Court and are questioned on different points by the counsel for the prosecution and for the defence that they give all the details of the incident in an elaborate and exhaustive manner. The statement of Abdul Ghafur (P. W. 2) is that he saw the appellant placing the currency notes in the dab of his loin‑cloth after having received the same from the complainant. He is the person who first spotted the bundle of the currency notes lying in the alley and has deposed to that fact in his examination‑in‑chief. I see no reason to doubt the veracity of this witness and there is no obvious motive for him to falsely implicate the appellant in the case. Moreover, the conduct of the appellant of in hurriedly entering into the room of his house on seeing the raid party is a circumstance which tends to show that he had already accepted the bribe money and wanted to get rid of it, realising that if he did not do so there would be no escape for him from conviction. I find the case fully established and see no reason to interfere with the sentence either. In the result, this appeal is dismissed.

A. H Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.