P L D 1957 (W (PLP)

YAQUB ALI, J.‑

Hayat Ali and Lal Hussain, Head Constables of Police, have been sentenced by Mr. Sher Bahadur Khan, Special judge, under section 161, P. P. C. and section 5 (2) of the Prevention of Corruption Act (II of 1947) to one years rigorous imprisonment each. Muhammad Afsar, A. S. I., who was tried along with them has been given the benefit of doubt and acquitted. Both Hayat Ali and Lal Hussain have preferred separate appeals, being Nos. 746 of 1956 and 752 of 1956, respectively, which are the subject matter of this order. The case for the prosecution briefly was that in the month of July 1953, a case of theft was reported from village Khorzada Maliaran within the jurisdiction of Police Station Mandra, District Rawalpindi, Hayat Ali investigated this case at the initial stage and during the course of a search recovered an unlicensed spear from the house of Muhammad Hussain P. W. for which he was prosecuted under the Arms Act, but that has nothing to do with the facts of the case except to mention that during the course of the search no incriminating article was recovered relating to the theft case. Later on, Muhammad Hussain, Muhammad Iqbal and Barkhurdar P. Ws. were made to join the investigation of the case as suspects and illegally detained in the Police Station Mandra for a number of days and were often given beating. When Lai Khan P. W., brother of Muhammad Hussain suspect, and Gulzar P. W., brother of Barkhurdar suspect, went to Police Station Mandra to enquire as to why their relations were detained, they were also given beating and detained there. Both of them were later on allowed to go on the understanding that they would arrange to pay Rs. 300 as bribe in order to obtain the release of the suspects. Muhammad Iqbal suspect was also allowed to leave the police station on two occasions to make arrangements for raising the amount of the bribe. On one of these occasions, Muhammad Iqbal went to Rawalpindi and informed Ghulam Mohy‑ud‑Din P. W., his employer, about the demand made by the accused and the treatment which he and his relatives were meted out at the police station. Ghulam Mohy‑ud‑Din gave a recommendatory letter to Muhammad Iqbal addressed to Agha Sahib, the Station House Officer, but it did not prove of much help. Later on Muhammad Iqbal pro cured another recommendatory letter from Khan Abdul Aziz Khan, A. S. I., but when this was delivered, the S. H. O. lost temper and Muhammad Iqbal was administered a good bit of thrashing and after that he was not allowed to leave the police station. As a last resort, Lai Khan P. W. went to said Ghulam Mohy‑ud‑Din P. W. and requested him to advance him a loan of Rs. 300 to be paid to the accused, but, instead of paying this amount. Ghulam Mohy‑ud‑Din took him to Khwaja Sana Ullah Shamim, an Advocate, who reported the matter to the Deputy Commissioner, Rawalpindi, and the latter directed him to see the Superintendent of Police. In consequence of it a raiding party was arranged under the supervision of Mr. Inayat Maula Qureshi, Magis trate 1st Class, to witness the passing of the bribe to the accused. The party, which included Mr. Inayat Maula Qureshi Magistrate, Mr. Hamid Ullah D. S. P., and Ghulam Mohy ud Din P. W., went to Mandra on the morning of 12th of October 1953 in a car. On their arrival near the police station the car was parked and its bonnet was raised to give an impression that some defect had occurred in the engine to avoid detection of their presence. Lai Khan P. W., who had been given the currency notes of Rs. 300 after noting their numbers was then sent to the police station to pass them on to the accused, if demanded by them as a bribe, and the remaining members of the party kept standing near the car to await the arranged signal from Lal Khan. When Lal Khan P. W reached the police station, Lal Hussain accused was the first to meet him and enquired whether he had brought the money. When he, (Lal Khan) replied in the affirmative, Lal Hussain accused said that he had asked for Rs. 900 but Lal Khan said that, as he was a poor man, he could obtain only Rs. 300 as originally demanded with much difficulty. Lal Hussain accused then asked Lal Khan P. W to go to the room of the investigating Head Constable, Hayat Ali accused. There are two versions as to what happened subsequently inside the room of Hayat Ali. According to the earlier statement of Lai Khan, which he made to the Magistrate at the time of the raid, he had paid the amount to Hayat Ali accused directly, but at the trial he made a departure and deposed that he had passed the amount to Lai Hussain appellant and the latter had given it to Hayat Ali. His statement, under section 161, Criminal P. C. recorded by Mr. Hamidullah D. S. P. is also to the effect that he gave the amount of Rs. 300 directly to Hayat Ali accused and there is no mention of Lai Hussain accused in it. After passing of the bribe, Lai Khan P. W. came out of the police station and gave the arranged signal at which the raiding party came to the police station and found Hayat Ali and Lal Hussain accused present in the room of the former. At the instance of Lai Khan P. W., Mr. Inayat Maula Qureshi asked Hayat Ali accused to produce Rs. 300 which he had accepted as bribe from him and thereupon the accused produced the same currency notes which had been shortly before entrusted to Lai Khan. These were taken into custody and after the proceeding of the raid has been noted down, Mr. Inayat Maula Qureshi handed over the papers and the currency notes to Mr. Hamid Ullah D. S. P. for registering a case against the accused and entering upon its investigation. Since it was not denied before me by the learned counsel for both the accused that a sum of Rs. 300 was demanded from Lai Khan, Gulzar Khan and Muhammad Iqbal P. Ws. as a bribe, and that the currency notes were recovered in the course of the raid from Hayat Ali, it is not necessary to dwell at length on the raid proceedings, except to mention that while producing the currency notes, Hayat Ali did not state that the amount was given to him by Lai Hussain accused to be delivered to the S. H. O., Agha Sahib, at Rawalpindi, as maintained by him in his defence at the trial. It might, however, by noted that Muhammad Hussain, Muhammad Iqbal and Barkhurdar P. Ws, who were found detained at the police barracks, were set at liberty and their statements were recorded by Mr. Inayat Maula Qureshi, Magistrate, and by the D. S. P., to which reference will be made at appro priate stage. At the trial, the prosecution examined 16 witnesses, including P. W. 1 Lal Khan complainant, P. W. 3 Muhammad Hussain suspect, P. W. 4 Barkhurdar suspect, P. W. 7 Ghulam Mohy‑ud‑Din, the employer of Muhammad Iqbal suspect, P. W, 8 Mr. Hamid Ullah D. S. P., P. W. 11 Gulzar, the brother of Barkhurdar suspect, P. W. 15 Mr. Inayat Maula Qureshi, the Magistrate who conducted the raid, and P. W. 16 Muhammad Iqbal suspect. The only material discrepancy which was brought out in the cross‑examination of Lai Khan P. W. has been noticed above, namely that while at the trial he maintained to have handed over the currency notes of Rs. 300 in the first instance to Lal Hussain accused, in his earlier statement he 'had stated to have handed over the amount directly to Hayat Ali accused. Muhammad Hussain (P. W. 3), one of the suspects, who was illegally detained at the police station, stated that all the three accused had been demanding bribe during the period of his detention, and to the same effect is the statement of Barkhurdar (P. W. 4). In his earlier statement recorded by Mr. Inayat Maula Qureshi, there was, however, no men tion of the demand of bribe by any one of the accused. Ghulam Mohy‑ud Din (P. W. 7) deposed that Lai Khan had asked him for a loan of Rs. 300 which was demanded by the Havildars of the Police Station Mandra as a bribe. There was no, mention in his statement of Muhammad Afsar A. S. I. or of Agha Sahib S. H. O. having demanded the bribe from Lai Khan and Muhammad Iqbal P. Ws. As regards the testimony of Mr. Hamid Ullah D. S. P. (P. W. 8), the only portion to which my attention was drawn by Mr. Muhammad Shafi, learned counsel for Hayat Ali appellant, was where the witness had stated that before the raid Lai Khan (P. W. 1) was given instructions to hand over the sum of Rs. 300 to Muhammad Afsar A. S. I. or the station clerk who had demanded the bribe. The criticism of Mr. Inayat Maula Qureshi's evidence by Mr. Shafi boils down to the undesir ability of employing the judicial officers as a limb of the police in conducting raids and the inadmissibility of any statement which an accused might make to the Magistrate at the time of the raid. Since a good deal of arguments were addressed to me on this aspect of the case, I shall later take it up for discussion. Gulzar (P. W. 11), the brother of Barkhurdar suspect, stated that it was Lai Hussain who had demanded the bribe from him and on one occasion he actually received from him a sum of Rs. 40 and on another occasion Hayat Ali accused had inquired from him whether he had made arrangements for payment of the money. The last witness, Muhammad Iqbal (P. W. 16), named only Muhammad Afsar and Lai Hussain as the police ofcials who had demanded the sum of Rs. 300 as bribe. The substance of the testimony of the aforesaid P. Ws. may be summarised thus :‑ (1) Muhammad Hussain, Muhammad Iqbal and Barkhurdar P. Ws. were being detained illegally at the Police Station Mandra and occasionally given beating in connection with the investigation of a theft case. (2) These suspects and their relatives, Lal Khan and Gulzar P. Ws. were asked to pay Rs. 300 for obtaining them suspects) release. (3) In the statement of Lai Khan P. W. recorded by the Magistrate at the time of the raid, Muhammad Afsar and Lai Husain accused were mentioned as the culprits, who had demanded a sum of Rs. 300 as bribe and there was no mention of Hayat Ali accused in that statement. (4) The tainted currency notes were recovered from Hayat Ali accused at the instance of Lai Khan P. W. which corroborates the earlier statement of Lai Khan (P. W. 1) that he had directly handed over the sum of Rs. 300 to Hayat Ali. (5) As soon as Lai Khan entered the police station, Lai Husain accused enquired from him if he had brought the bribe which lends support to the prosecution version that in the past he had been demanding bribe from the aforesaid P. Ws. and that he was to share the bribe received by Hayat Ali accused. (6) That Hayat Ali accused being associated with the investigation of the theft case against Muhammad Husain and others, he had a good deal to do with their release for which a sum of Rs. 300 was being demanded from them as a bribe. Hayat All when examined at the close of the prosecution evidence, pleaded not guilty to the charge and stated that shortly before the raid had taken place, he came from outside on his cycle and was about to leave for Rawalpindi to appear as a prosecution witness in a criminal case when Lal Husain entered his room and gave him Rs. 300 to be delivered to the S. H. O. at his house at Rawalpindi. In the meantime the raid party arrived and on their demand he produced the currency notes before them. Lal Husain accused denied to have demanded a sum of Rs. 300 or to have received it from Lai Khan P. W. or to have passed it on to Hayat Ali accused as maintained by him. He claimed to have gone to the room of Hayat Ali accused to inform him about the arrival of the D. S. P. whom he had seen coming towards the police station shortly before the raid. A number of witnesses were examined in defence. Those who appeared on behalf of Hayat Ali accused stated that on the 10th and 11th of October Hayat Ali had gone out in connection with the investigation of criminal cases and on the 12th of October he was to appear as a prosecution witness in a criminal case at Rawalpindi. The evidence led by Lal Husain accused was intended to show that there was 'some ill‑will between him and Ghulam Mohy‑ud‑Din P. W., because in 1951, he (Lal Husain) had investigate a case under section 448, P. P. C. and in the course of it, Ghulam Mohy‑ud‑Din had complained to the officer in charge that Lal Husain accused was helping the other party. The questions that fall for determination in these appeals are : (1) whether the accused had demanded a sum of Rs. 300 as bribe from Gulzar and Muhammad Iqbal P. Ws. for re leasing MLlh2tt1mdd Husaian, Barkhurdar and Muhammad Iqbal to illegal detention. (2) Whether Lai Khan P. W. paid the sum of Rs. 300 directly to Hayat Ali accused or that he in the first instance paid it to Lal Husain accused and the latter passed it on to Hayat Ali accused. (3) If it is found that Lal Khan P. W. had paid the amount of bribe to Hayat Ali accused directly, whether he received it on his own behalf and Lal Husain accused was not involved in it. (4) What is the effect of the statement of Inayat Maula Magis trate that when he recovered the currency notes of Rs. 300 from Hayat Ali accused he did not render him any explanation as to how he had happened to possess that money and how for it affects his plea of defence referred to above. As regards the payment of bribe, as I have mentioned above, the counsel for the two accused did not contest before me that the amount of Rs. 300 recovered from the possession of Hayat Ali accused was demanded from Lai Khan P. W. as a bribe. In his statement recorded by the Magistrate before the raid took place, Lai Khan mentioned Muhammad Afsar and Lai Hussain accused as those, who had demanded the bribe from him. There is the evidence of the other P. Ws. referred to above that Hayat Ali accused had also demanded the bribe from the suspects and their relatives on more than one occasion. It is also to be borne in mind that Hayat Ali accused was directly associated with the investiga tion of the case, in the course of which Muhammad Husain and others were being detained as suspects. It is, therefore, very likely that he had joined the other accused in demanding the bribe: The omission of his name from the statement recorded by the Magistrate is, therefore, of not much assist ance to him. In any case the tainted currency notes were recovered from his possession which furnish direct evidence of the crime against him. With respect to the passing of the tainted currency notes, the circumstances of the case show that the earlier statement of Lai Khan (P.W.1) was correct when he said that he had directly paid the money to Hayat All accused. This is borne out by the fact that the tainted currency notes were recovered from the person of Hayat Ali accused at the instance of Lal Khan P. W. which means that he had pointed out Hayat Ali as the person who received the bribe otherwise he would have named Lal Husain instead of Hayat Ali accused. As regards the liability of Lal Husain accused, there is the evidence that he had on more than one occasion demanded bribe from Lai Khan P. W. and other P. Ws. mentioned above. Again, when Lal Khan entered the police station shortly before the raid, this accused had enquired from him as to whether he had brought the money and lastly, when the raiding party entered the room of Hayat Ali, Lal Husain accused was found to be present there. These facts, to my mind, make it clear that although the amount was received directly by Hayat Ali accused, Lal Husain accused was equally involved in the acceptance of this amount. On the last point Mr. Muhammad Shafi cited a number of authorities in support of his contention that any statement made by Hayat Ali to Mr. Inayat Maula, Magistrate, would have been inadmissible in evidence and, therefore, no adverse inference could be drawn against his client because of leis failure to point out at the time of the recovery of the currency notes that these were handed over to him by Lal Husain to be paid to the Station House Officer. The learned counsel maintained that as soon as the statement of Lai Khan (P. W. 1) was recorded by Mr. Inayat Maula that the accused had demanded a bribe of Rs. 300 he (Mr. Inayat Maula) had taken cognizance of the case and what followed during the course of the raid was in the nature of an investigation within the purview of section 162, Criminal P. C. Emperor v. Khwaja Nazir Ahmad (A I R 1945 P C) was cited to canvass the argument that in the case of a cognizable offence the receipt and recording of the first information report was not a condition precedent to the setting in motion of a criminal investigation. When con fronted with the argument that the accused in this case were not charged with the offence of demanding bribe but actually receiving it, the counsel contended that as the sum of Rs. 300 had been passed on to Hayat Ali when Mr. Inayat Maula arrived at the police station, the offence, with which the accused were charged had already been completed. There is an obvious fallacy in the above argument of the learned counsel. A police officer enters upon an investigation or a Magistrate directs him to do so when it is reported or it comes to their knowledge that a crime has been committed (see sections 157 and 159, Criminal P. C.) In the nature of things investigation is a step which follows such information or knowledge and cannot precede it. And in any case the Magis trate himself never enters upon the investigation of a case with‑I in the meaning of section 161 or section 162, Criminal P. C Therefore, although the offence of accepting bribe is completed when the recovery of the tainted money is effected from the accused 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 direct him to proceed in the matter, an investigation in the case has till then not started. There are cases in which the police officer first takes cognizance of a criminal offence, registers the case and requisi tions the services of a Magistrate to supervise certain steps in the course of investigation to which the provisions of sec tion

162. Criminal P. C. are fully applicable and on this ground some of the authorities cited by Mr. Muhammad Shafi are clearly distinguishable, e. g. Rao Shiv Bahadur Singh and another v. State of vindhya Pradesh (AIR 1954 S C 322) and Nazir Ahmad v. King Emperor (AIR 1936 PC 253 (2)). In Shiv Bahadur Singh's case Bhagwati, J. dealing with the admissibility of the statement of the accused to Shanti Lal Abuja, the Additional District Magistrate, who had conducted the raid, observed that the investigation into the offence had already started immediately on the first informa tion report being registered by the police authority and Pandit Dhan Rai himself admitted in his evidence that the investigation into the offence had thus started before the raid actually took place. In Nazir Ahmad's case Mr. L. D. Vasisht, a 1st Class Magistrate, had, on the application of the police during the course of the investigation, proceeded to the scene of dacoity and the accused, who were accompanying him in handcuffs pointed out certain material places, and made confessional statements, of which rough notes were maintained by the Magistrate without observing the provisions of section 164, Criminal P. C. In Shyamlal Sharma v. King Emperor (A I R 1949 All. 483 (F B)), on receipt of an information that the accused had agreed to accept a bribe a Sub‑Inspector of Police, Special Branch, made an application to the Resident Magistrate stating that the offence under section 161, Penal Code had been committed and asked for permission under section 155, Criminal P. C. to investigate the case. It was further requested in the application that a 1st Class Magistrate be deputed to witness the transaction, to prepare a report relating to the event and to make over all the documents to the police to complete the investigation. The application was allowed and a 1st Class Magistrate was deputed to organise a raid. The Magistrate witnessed the occurrence, arrested the accused, recorded certain statements and then prepared a report embodying an account of all that he had done and of all that had happened in his presence and made over that report together with the documents in connection with the case to the Sub‑Inspector. The Sub‑Inspector made use of this report in the witness‑box and gave his statement after referr ing to it from the beginning to the end. On these facts a question arose whether the report of the Magistrate to the Sub‑Inspector of Police fell within the purview of section

162. Criminal P. C., and was inadmissible in evidence. The evid ence on the record did not disclose anything to have been done by way of investigation by the Sub‑Inspector before the report was handed over to him by the Magistrate. In view of this circumstance, the report, which was made over to him by the Magistrate, was held to be admissible in evidence, because assuming it to be a statement within the meaning of sec tion 162, Criminal P. C., it was handed over before the Sub- Inspector had entered upon the investigation of the case. This auth6rity was followed by a Division Bench of the Pepsu High Court in A I R 1953 Pepsu page

182. In Shiv Bahadur Singh's case referred to above, the learned judges of the Supreme Court of India, made the following observations at page 334 of the report :‑‑ "That the circumstance that on the numbers of the notes being tallied and his (accused's) explanation in that behalf being asked for by the police authorities the appellant No. 1 was confused and could furnish no explanation in regard thereto also supports this conclusion and there is no doubt in our minds that the appellant No. 1 was guilty of the offence under section 161 of the I. P. C. with which he was charged." The same consideration would apply to the case of Hayat Ali appellant in this case, because in case he had been handed over the currency notes by Lal Husain accused, it is not possible to believe that he would have observed reticence when Mr. Inayat Maula asked him to produce the amount which he had received as a bribe from Lai Khan (P. W. 1) Mr. Muhammad Shafi next drew my attention to another paragraph in the judgment in Shiv Bahadur Singh's case in which the practice of employing Magistrates for supervising raids, as in the present case, was deprecated in very strong terms. The learned Judges considered it highly undesirable to make the judiciary a limb of the police which was likely to affect their judicial outlook and reduce them into the position of an ordinary witness of a partisan character. While one would respectfully agree with these observations, I am afraid in coming to this conclusion certain aspects of the situation have not been taken into consideration. For instance, instead of employing judicial Magistrates in conduct ing the raids the services of Executive Magistrates can be usefully requisitioned which will meet the main objection of the learned judges and that it is in the interest of the accused that instead of a Police Officer, who is ordinarily deemed to be interested in the successful result of an investigation, carrying out a raid, a member of the Civil Service, who has no such consideration before him, may be employed for this purpose. The police officer can no doubt, enlist the services of certain respectable to witness the raid proceedings, but we all know that in the present conditions of society in this sub continent, it is extremely difficult to find such trustworthy gentlemen. As a result of the above discussion, I find myself in agree ment with the conclusions of the learned trial judge that both Hayat Ali and Lai Husain have been guilty of extracting bribe from Lai Khan (P. W. 1), and although the amount was actually received by one of them, it was intended to be for the benefit of the both and they thereby committed the offence with which they were charged at the trial. The sentence of one year's rigorous imprisonment awarded to each of the appellants, of course, does not call for any reduction in the circumstances of the case. Both these appeals are‑accordingly dismissed. A.H Appeals dismissed