P L D 1969 Supreme Court 278 (PLP)

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. SAJJAD AHMAD, J.‑

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.