P L D 1956 (W (PLP)

MUNSHI, J.-‑This is an appeal filed by the Public Prosecu tor, Karachi, under the instructions of the Chief Commissioner, Karachi, against the judgment of Mr. Ghaznavi, Special Judge (Anti‑Corruption) Karachi, acquitting the Respondent who was accused of an offence punishable under section 161, P. P. C. On 21st November 1951, Bashir Ahmad M. E. S. Contrac tor lodged a complaint with Special Police Establishment that he had taken contracts for the construction of quarters etc., at Malir and that the Respondent who was serving as S. D. O., in order' to knock out money from him, was unnecessarily pointing out defects in the work done and that he had already taken from him Rs. 500 by way of bribe and was still demanding more and that he had agreed to pay him Rs. 500 more on 22nd November 1951 at Landhi. The D. S. P. of the Special Police Establishment applied to the City and A. D. Magistrate Karachi, to permit Mr. Ejaz Hussain Inspector of the Special Police, to investigate and also to depute a F. C. Magistrate to witness the passing of the money. The City and A. D. Magistrate granted the required permission and deputed Mr. Merchant who is one of the F. C. Magistrates of Karachi to witness the passing of the money. Mr. Merchant was then given five currency notes of Rs. 100 each and he noted down their numbers and prepared a memo. These notes were given to the complainant Bashir Ahmed for payment to the Respon dent. The party which consisted of Mr. Merchant, Bashir Ahmed, his partner Ghulam Muhammad and Inspector Ejaz Hussain left for Landhi on 22nd November, 1951 in the morning. On the way the complainant got down at Malir Cantonment in order to pick up the Respondent from his office and bring him to Landhi. At Landhi, Mr. Merchant and the Inspector were made to sit in one of the newly constructed rooms while Ghulam Muhammad remained at the gate waiting for the complainant and the respondent who arrived at about 11 a. m. Here the respondent asked the complainant to pay him the agreed amount namely Rs. 500 which the latter did. The respondent after receiving the amount told the complainant that the balance of Rs. 858 had still to be paid to him. Ghulam Muhammad then, as pre‑arranged, knocked at the door of the room, on which Mr. Merchant and the Inspector came out. The respondent then took out the notes from his pant pocket and threw them on the floor. Mr. Merchant who saw him throwing the notes, picked them and prepared a mashirnama. The police, after completing the investigation and obtaining usual sanction, challaned the respondent with the above result. The respondent in his statement recorded under section 342, Criminal P. C. denied the allegation that he had demanded or accepted Rs. 500 from the complainant as alleged. In his written statement he has alleged enmity with the complainant and Syed Safdar Hussain who was Garrison Engi neer about the time of the incident, adding that they in collu sion have cooked up this case against him because of the defects he had pointed out in the construction work done by the former. He has also stated that Mr. Safdar Hussain had personal reasons also because he had made a representation to the higher authorities to treat him as senior to Safdar Hussain. We have heard the learned Public Prosecutor Mr. Raymond for the Crown and Mr. Khalid for the Respondent, who have taken us through the judgment and the relevant evidence. We have given our best consideration to the points raised by them and we have reached the conclusion that this judgment must be reversed. The statements on which the learned judge has practically entirely based his judgment are not borne out by the record. The judgment contains more than one mis statement which the learned Public Prosecutor rightly com plains are gross in nature. The learned judge having made up his mind to acquit the respondent, has shown scant regard for the sworn testimony of the witnesses including that of Mr. Merchant. He has tried to explain away the evidence of the complainant and Ghulam Muhammad as that of interested and hostile persons, of the Inspector of the Special Police on the sole ground that being an investigating officer he would always be anxious to see that his case ends in conviction. These grounds, however, he obviously could not advance against the evidence of Mr. Merchant, but he has tried to dispose of his evidence by starting with the following observations: "Under these circumstances, the evidence of these two contractors, and that of the Inspector is not sufficient for the conviction of the accused, and for these reasons, we have to carefully study the evidence of the Magistrate, who is no doubt, a dis‑interested person. I have carefully thought over the evidence for over a fortnight, and for the reasons, which I would mention hereafter, I feel that it is not safe to rely upon the evidence of Mr. Merchant, which is not free from doubt," After these observations the learned Judge goes on ascribing statements to the Magistrate which he never made and putting construction on some of his statements which is absolutely uncalled for. The evidence of the complainant is practically the same as set out above. He has been cross‑examined to show that the respondent had pointed out several defects in his work and it was on that account that he bore grudge against him and has cooked up this case. The evidence of Ghulam Muhammad has been assailed on the ground that he is interested in the complainant. The respondent has not alleged anything personal against him. The evidence of the Inspector Mr. Ejaz Hussain is to the effect that after he was permitted to investigate he approached F. C. Magistrate Mr. Merchant to witness the passing of the promised money. He says Mr. Merchant noted down the numbers of the currency notes and prepared a memo of it and then delivered the same to the complainant for payment to the respondent and that thereafter they left for Landhi and that on the way the complainant got down at Malir Cantonment to bring the respondent to Landhi where the payment was agreed to be made. He further states that on reaching Landhi he and Mr: Merchant took their seats in a room while Ghulam Muhammad remained in the verandah close to the room which they closed from inside and that at about 11 a.m. came the complainant with the respondent and that while they were in the room they heard the respondent telling the complainant that Rs. 858 remained to be paid by him and that after this was heard, there was, as pre‑arranged, a knock at the door on hearing which he and Mr. Merchant immediately came out and that on seeing them the respondent threw the notes on the ground which were picked by Mr. Merchant. Their numbers tallied with those already noted in the memo. The Inspector has further stated that Mr. Merchant then prepared a memo of the recovery of the notes. There is nothing on record to show that, the evidence of this witness is improbable or in any way unworthy of credit. Nothing personal is alleged against him. The learned Judge however, has summarily rejected his evidence merely on the ground that he being an investigating officer, would try to see that the case ends in conviction. This is what he says about him: "Inspector Ejaz Hussain had planned the trap. He did come all the way, from Karachi to Landhi, to bring the accused into the trap. He is interested in the success of the prosecution case. He would not like that the man, he had sent up to the Court, be acquitted." These grounds which are usually advanced by defence counsel for their clients, pushed to their logical conclusion, would apply to every police officer and in every case and we think that mis‑carriage of justice will be inevitable if they are accepted as the sole reason for rejecting what is otherwise a reliable and trustworthy evidence. Each case has to be. considered on its own merits. Courts cannot indulge in whole sale denunciation of the investigation department of the police. If the evidence of the police officer concerned is otherwise not improbable or shown to be unworthy of credit, the mere fact that he has investigated the case and challaned the accused is no ground for rejecting it. The learned Judge after thus disposing of the evidence of the complainant, witness Ghulam Muhammad and of the Police Inspector, has dealt with the evidence of Mr. Merchant which is practically similar to that of the Inspector on all material points. His evidence obviously could not be treated as lightly as that of the other witnesses. The learned judge had there fore to discover stronger reasons for doing so. The evidence of Mr. Merchant is clear and un‑ambiguous. He has stated in clear terms that he heard the complainant telling the Respon dent to take Rs.500 and the latter saying that Rs.858 remained to be paid and that when he came out on hearing the knock, the accused, on seeing him, threw the notes on the floor which he himself picked up. The learned judge has discarded this evidence by ascribing to the witness statements which we do not find on the record. For instance on page 64 of the judgment the learned judge says that Mr. Merchant in the memo Exh. 4/C which he made on the spot, has not mentioned that he saw Murtaza the accused throwing away the money. But the perusal of the memo itself shows that Mr. Merchant has in fact mentioned in it that he saw the accused throwing away notes. It is amazing that the learned judge who has himself quoted the relevant passage from the memo in his judgment has still the courage to make such a statement. This passage is quoted by the learned judge on page 62 of the judgment and it reads as under: "When the accused received Rs. 500, he heard him saying that Rs. 858 remain to be paid. He came out and saw Ghulam Murtaza throwing away notes from his hand." Again on the same page immediately after the above mis statement, the learned judge has made another misstatement that he i.e. Mr. Merchant has admitted that this memo was partly written at the spot and partly at the police station at Karachi. That Mr. Merchant has not said so and that he has said just the opposite of what the learned Judge has ascribed to him will be clear from the cross‑examination of Mr. Merchant on the point which is on page 44 of the paper book. This is what he has stated: I have never prepared memo at the police office. However, in one instance I had prepared the memo in the police office as the place of incident was opposite to such office. This was in the case of Foreign Currency Case'. Thus it becomes clear that in the first place no question was put to the witness to the effect that he had prepared the memo in this case partly at the spot and partly at the police station. But even‑if such a question can be inferred from the answer given by the witness there is no statement much less an admission of the witness on record to the effect that he pre pared the memo in question partly at the spot and partly at the police station. We do not know from where the learned Judge has discovered such admissions. The learned judge has then quoted a passage from the evidence of the witness, on the same page (64) of his judgment and from that he has argued that the witness has made his evidence doubtful. The passage quoted is this "The accused and the witness were talking in Urdu. I could only catch a few sentences of their talk, as the door was closed. For the same reason, I could not distinctly hear all the talk. I, before that, have stated before Mr. Leghari, the Magistrate, that I could not exactly follow what was the actual talk between the parties. I heard the two contractors and the accused talking to each other, but, I could not understand whether they were Punjabis. Their talk did not disclose to me that they were Punjabis." The learned judge then goes on to say that it is thus clear that the learned Magistrate could not understand the talk between the parties, and he could not definitely say whether he heard ;the accused say that the balance of Rs. 858 still remained'. The record however clearly shows that Mr. Merchant has made a definite statement that he heard the respondent say that Rs. 858 remained to be paid. He has done so at more than one place. These words find place in the memo Exh. 4‑C prepared by the witness on the spot and he has said so again in his evidence in Court. The passage quoted by the learned judge according to us would merely mean that the witness was not able to hear all that was said by the respondent on one side and the complainant and witness Ghulam Muhammad on the other. It would be otherwise absurd that the witness would on the one hand make a definite statement that he heard the above statement of the respondent and on the other say that he did not follow what passed between the above men. The learned judge then says : It is also not clear whether the money was in the hands of the accused or it was lying in the pocket of his trousers and he took out from his trousers and then threw it away'. The memo Exh. 4‑C clearly says that the respondent was seen throwing the notes from his hands. Obviously therefore the notes were in his hands when he was seen by the witness. The evidence of the complainant and witness Ghularri Muhammad clearly shows that the respondent put the notes in his pant pocket. The Inspector also says he saw him taking out the notes from his pant pocket. Mr. Merchant has not been questioned on this point. In fact, according to us, it made no difference whether the money was in the hands of the respondent or in the pant pocket. In either case‑ the money was in his possession. The learned judge after indulging in the above quoted misstatement has then propounded a theory in favour of the respondent. This is what he says " What has really happened in this case is this, that of the two contractors, Bashir Ahmed and Ghulam Muhammad, one tried to thrust the money on him, and the other knocked the door, to give a signal that the money had been accepted. Then after a few seconds, the police and the Magistrate, came out and they saw the accused throwing the money." Then, assuming his theory to be sound and well founded he has posed a question 'Does this amount to conscious Posses sion of the bribe and then has himself offered an answer by saying In my opinion it does not'. Commenting further on his theory, the learned judge says: "The accused was surrounded by these two contractors, who were his enemies, and did not want to be in the Depart ment. One of them may have slipped the notes in the pocket of his trousers, and the other gave the signal, and the police came out from a distance of 2 or 3 paces. If the Magistrate and the police had been wise enough, they could have waited for some time, and allowed the accused to take the money out of the premises. The police and the Magist rate could have gone a few paces out of that place, after about a few minutes, and then they could go upto him, and search his person. Even if they had, at a long distance, seen the accused throwing the money, that would have been sufficient for the presumption that the accused had accepted the bribe, and he had left the premises with the money." We confess that we have not been able to follow this queer logic. For according to us once the amount is taken, the taker becomes in conscious possession of it and it makes no difference whether he keeps the money for a while or for long or whether he stays in the verandah with the money or walks out of it. Coming to the theory of the Respondent himself as suggested by him in his written statement, we find that his case has been that there was no talk whatsoever between the ‑ com plainant and him in connection with bribe money. According to him he had gone to the urinal and that in his absence the complainant and Ghulam Muhammad had staged a conversation as if it was between him and the com plainant and that when he returned from the urinal the com plainant tried to thrust money on him and that he refused to take it and that while this struggle was going on, Mr. Merchant, Inspector Ejaz and one other man came out of the room and that one of them namely Mr. Merchant picked up the notes and prepared a memo. This statement, according to us, is too absurd to deserve any consideration. In order to accept it we will have to assume that the complainant knew on 21st when he lodged report with the police that on 22nd the respondent would feel the necessity of going to the bath room at 11 a. m. at Landhi. As for the passing of the money there is as said above the evidence of the complainant and Ghulam Muhammad who have stated that the respondent put the money in his pant pocket. This evidence is fully corroborated by that of the Inspector and Mr. Merchant. The learned judge has had to admit that Mr. Merchant is a disinterested witness but he has at the same time, on account of certain statements which he never made, has treated his evidence as doubtful. It is regretable that the learned Judge .who has been entrusted with such an important and delicate task has totally mis appreciated the evidence on record. We think that but for the misappreciation of evidence he would not. have acquitted the respondent on the charge. The learned counsel for the respondent has raised two points of law (1) that the A. D. M. Mr. Hashmi did not apply His mind to the facts of the case before permitting the Inspector to investigate the same. According to him the principles governing grant of permission to investigate are analogous to those governing grant of sanction to prosecute. In support of this contention he has relied upon the ruling quoted in A I R 1949 All. at p.

483. In that case a sub-inspector of police on receiving information that a certain Public Servant had committed an offence under section 161 by agreeing to accept bribe, approached the A. D. M. with an application for permission under section 155 (2) Criminal P. C. to investigate the case. It. is necessary to observe that the incident in question occurred before Act II of 1947 was enacted whereby the offence under section 161 has been made cognizably. After thus asking for permission the S. I. P. stated in the same application that the bribe would be paid in the evening and it was requested that a F. C. Magistrate be deputed to witness the passing of money. The A. D. M. granted both the requests. The trap laid by the police proved successful. The public servant was convicted and then the matter ultimately came before the High Court Two points arose for decision before the Court, one of them being whether the permission granted by the A. D. M. was in respect of the offence of agreeing to accept bribe or whether it was in respect of the offence of accepting bribe. The learned judge arrived at the decision that the permission was in respect of the offence of agreeing to accept bribe, and not for the offence of accepting bribe which had not yet been committed. According to them section 155 (2) Criminal P. C. did not contemplate what they have described anticipatory permission and in support of this view they have argued that the Magistrate before granting permission to investigate an offence has to apply his mind to the facts of the case and then they proceed further and say that as the offence of accepting bribe had not yet been committed the permitting Magistrate could not have applied his mind to the facts. We have carefully considered this ruling, but with all due respect for the learned judge of that High Court, we find ourselves unable to agree with their view. The entire reasoning is based on the assumption that the permitting Magistrate has to apply his mind to the facts of the case before granting permission to the police to investigate. They have quoted a decision reported in Emperor v. Mohanlal (1) as according to them that case had material bearing on the case before them although that case related to sanction for prosecution. But according to them it did not matter as sanction to prosecute and order to investigate are allied subjects and should be governed by the same principles. It is here where we differ from the learned judges. For according to us there can be no analogy whatsoever between the principles governing sanction to prosecute and those governing permission to investigate. In the former case it is incumbent on the (1) A I R 1947 All. 149 sanctioning authority to apply its mind to the facts of the case which have been collected during the course of investigation, before granting sanction. One of the reasons why sanction is required is to guard against frivolous prosecution of public servants and this object cannot be achieved unless the sanctioning authority applies its mind to the facts of the case. While in the case of grant of permission to investigate under section 155 (2), Criminal P. C. there would be, in the nature of things, no facts before the Magistrate to which he would apply his mind. At that stage there would at the most be an application or complaint containing certain allegation of commission of a non‑cognizable offence. Indeed the facts if any would be collected only after the police officer is permitted to investigate and hence the question of applying one's mind to the facts which do not exist, does not, arise. The order to investigate is passed before the facts are collected while sanction to prosecute comes at the end of the investigation during which the facts are collected. Apart from it the principles governing action under section 155 (2) Criminal P. C. are different from those governing action under section 5‑A of Act II of 1947. In the former a non‑cognizable offence has to be converted into a cognizable one while in the latter the offence is already a cognizable one. What is required of the Magistrate in the latter case is to permit a police officer who is below the rank of Dy. S. P. to investigate. The relevant part of the section reads as under "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) no officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under any of the sections of the P. P. C. (Act XLV of 1860) mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the first class or make any arrest therefor without a warrant." It will thus be seen that if the Dy. S. P. had chosen Jo investigate the case it would not have been necessary for him to seek permission of the A. D. M. to do so. It is only when he wants an officer below his rank to do it that he has to ask for permission. According to us therefore all that the A. D. M. had to do was to see whether or not the officer for whom permission was sought would be a suitable officer to investigate the case. It was not for him to see whether the facts of the case justified the holding of the very investigation. This is clear from the wording of the section which shows that a Dy. S. P. can investigate the offence without any reference to a Magistrate or any other authority. Mr. Ejaz Hussain is inspector of police which post is immediately below the rank of Dy. S. P. Moreover, he belongs to the Special Police Establishment which is for the purpose of detection etc of the offence of corruption and other allied offences. The learned Magistrate has obviously considered him to be a suitable officer for the purpose. It is therefore clear that it is not the merits of the case that the A. D. M. has to look into. For that a special provision has already been made in the Act viz., section 6. under which sanction has to be obtained before the case can be sent up, and it is here where the authority empowered to grant sanction is .required to apply its mind to the facts of the case before granting sanction. We are therefore of the opinion that the Magistrates are not required to apply their minds to the facts of the case before ordering investigation. This takes us to the next point raised on behalf of the Respondent‑whether the Magistrate can grant what is described anticipatory permission to investigate. It was con tended by Mr. Khalid that the A. D. M. could grant permis sion to investigate the offence of agreeing to accept bribe which had already been committed and not for the offence of accepting bribe which had not yet been committed. Reliance has again been placed on the ruling quoted above. As discussed above that ruling is based on the assumption that before granting permission the Magistrates have, to apply their mind to the facts of the case which according to us is not so. Moreover the facts of that case have no relation to the facts of this case. In the former the S. I. P. immediately after stating that the offence of agreeing to accept had been committed requested the Magistrate for permission to inves tigate that offence. The prayer for deputing a Magistrate to witness the passing of money followed the above statement and request. While in this case the Dy. S. P. after stating that the public servant had demanded and agreed to accept the money on 22nd November 1951 requested the A. D. M. to depute a Magistrate to witness the acceptance of money and to authorise the Inspector to investigate the case. The application and the order thereon are reproduced below "Exh.4‑A. To, The City and Additional District Magistrate, Karachi. Sir, I have the honour to state that a public servant has demanded and agreed to accept Rs. 500 as illegal gratification from a public man on 22nd January 1951 between 9.00 a.m and 11.00 a.m. in connection of the discharge of his official duties. It is therefore, requested that a First Class Magistrate may kindly be deputed to witness the passing of the money of illegal gratification. Inspector, Ejaz Hussain Khan of the Special Police Establishment, Karachi may kindly be authorised to investigate the case. I have the honour to be Sir, Your most obedient servant. (Sd.) Illegible. Deputy Supdt. of Police S. P. E., Karachi. Permitted. Mr. Merchant to p1. do this. (Sd.) Hashmi. 21‑11‑51" It is clear that the D. S. P. has not treated the offence of agreeing to accept money separately from that of accepting the money. What he has asked for is an authority in favour of the Inspector to enable him to investigate the offence of bribery of which one part viz., demand had been committed and the other namely acceptance was going to be committed. Law does not prohibit the treatment of the two acts one of demand and the other of acceptance as parts of the same offence although each act by itself constitutes a separate G offence. In fact the act of acceptance was, in the nature of things, in continuation of the act of demand. The reason why permission is sought in advance is to prevent the offender from escaping arrest and also to enable the police officer promptly to hold investigation so that the evidence may not be destroyed or concealed. This object cannot be achieved if the police officer is required to seek and obtain permission of a Magistrate after the offence of accepting money has been committed within his view. That this has been the intention of the Legislature is made clear from the proviso to section 5‑A of the Act. That proviso empowers a Police Officer in certain cases to investigate even without the permission of a Magistrate. It read's as under "Provided that an officer of the Special Police Establishment not below the rank of Inspector of Police, who is specially authorised in this behalf by the Inspector General of the Establishment or any other Police Officer so authorised by the Provincial Government, may, if he has reason to believe that on account of the delay involved in obtaining the order of a Magistrate of the first class any valuable evidence relating to such offence is likely to be destroyed or concealed, investigate the offence, without such order, but in every case where he makes such investiga tion, he shall, as soon as may be, send a report of the same to a Magistrate of the first class together with the circums tances in which the investigation was made." Mr. Khalid has also relied upon the judgment of one of our learned brothers Lari, J. who, sitting as a single judge decided in the Aulad Hussain Shah v. Munawar Hussain (Cr. A. No. 355 of 1953) that anticipatory sanction is not contemplated by Act Il of 1947. For this view our brother has relied on the same Ruling of the Allahabad High Court already referred to by us in the earlier part of this judgment where we have expressed our inability to accept the view of the learned Judges of that High Court. We are, therefore, clearly of the opinion that there is no force in the legal points raised on behalf of the respondent Thus the appeal must succeed both on question of facts and of law. We have not referred to the question of enmity said to be existing between the complainant and the Respondent, for once the evidence of the Inspector and Mr. Merchant is believed and there is no reason why it should, not be believed, discussion on the question of enmity will be pointless. In the result we reverse the judgment of acquittal passed by the learned Special judge based as it is on statements which do not find place in the record and on grounds which are not recognised by law. In reaching this conclusion we have had before our minds the principles enunciated by their Lordships of the Privy Council in the case of Sheo Swarup v. Emperor. The respondent, in our opinion, can derive no benefit from these principles, for as discussed above, no reliance can be placed on the views of the learned Judge as to the credibility of the H prosecution witnesses. The evidence brought on record does, in our opinion rebut the presumption of innocence in favour of the Respondent. The presumption is certainly not fortified by this judgment of acquittal. The principle that the trial Court's view is entitled to weight as it has the advantage of seeing the witness and marking the demeanour, will also be of no avail in this case as the record shows that only one witness viz., Ghulam Muhammad was examined by the learned Judges the rest having been examined by the A. C. M. from whose file the case was brought over to the file of the learned Judge. We therefore set aside the judgment of lower Court and convict the Respondent of the offence punishable under section .161, P. P. C, and sentence him to suffer rigorous imprisonment for one year The bail bond executed by the Respondent stands cancelled and he is remanded to custody to serve out the sentence. A. H. Respondent convicted.