1984 P Cr (PLP)

Aiz Qureshi for A.-G. for Respondent. Date of hearing: 29th August, 1983. Massan s/o Sada, Sargana, aged 60 years, resident of Tahuke P.S. Pindi Bhattian, District Gujranwala, has been convicted by Mr. Abdul Shakoor Qureshi, Special Judge, Anti-Corrupution, Gujranwala, on 22nd March, 1971 under section 165-A, P.P.C. and sentenced to undergo two years' R.I. and a fine of Rs.180 or in default of payment of fine to undergo further R.I. for the period of 6 months. He has appealed.

2. Briefly stated that the prosecution case is that on 10-9-1969 he offered a sum of Rs.180 as bribe to Sher Ali Khan Niazi Sub-Inspector P.W. 4 as a reward for not summoning his relatives Samandi and Mahandi in a theft case and thereby abetted the commission of offence under section 161, P.P.C. punishable under .section 165 (a), P.P.C.

3. The prosecution produced four' witnesses in support of its . case, namely Hadayat Ullah, A.S.I. P.W.1 Muhammad llyas M.H.O. P.W. 2 and Sujawal Khan P.W.3 a private servant of Mr. Sher Ali Khan Niazi. They stated that the appellant visited the P.S. Pindi Bhattian and took the S.H.O. aside and passed Rs.180 as bribe to him with the request that Mahandi and Samandi may not be summoned in the theft case. The appellant is also alleged to have delivered recomendatory letter Exh. P.B. to the S.1. The latter took into possession the letter and the currency notes through memo. Exh. P.A. drafted the complaint Exh. P,C. and after obtaining permission the S.D.M. Hafizabad, challaned the accused.

4. The appellant denied the prosecution allegations and stated that he had been implicated falsely. He produced two witnesses in his defence. He stated that while searching Mahandi and Samandi, Sher Ali Khan, S.I., raided his house and recovered Rs:180 from a box. He further stated that he had asked him to produce Mahandi and Samandi,before him and on his refusal he challaned him in the case.

5. The learned Magistrate relying upon the prosecution evidence convicted and sentenced the appellant as stated above.

6. The learned counsel has raised a legal point about the illegality committed in the arrest an ivestigation of the case against the appellant by Mr. Sher Ali Khan Niazi S.I. According to him under section 5 (a) of the Prevention of Corruption Act, 1987, no officer, below the rank of Inspector of Police, could investigate the offence under section 165-A, p.P.C., without the order of Magistrate of the Ist Class or make any arrest, therefore, without a warrant. But in the instant case these legal requirements have not been fulfilled and the case has been investigated into by an officer of the rank of S. I . and that too without the orders of a Magistrate. In support of his contention the learned counsel has cited the State v. Hamtho 1971 S C M R 686 in the said case the accused challaned by the police under the provision of the Customs Act was acquitted by the learned Sessions Judge, on the ground that the conviction was void as the accused could not be challaned by the police for trial under the Customs Act. The acquittal was upheld by the High Court and the Supreme Court. The Supreme Court had observed that "where a statute created special offence and lays down a special procedure for the trial of such offence, it is that procedure which must be followed and not the ordinary procedure".

7. The learned counsel appearing for the State has not been able to show any provision in the Prevention of Corruption Act authorising a police officer below the rank of Inpsector of Police to arrest persons accused of contravention of the offences mentioned in section 3 or 5 of the Prevention of Corruption Act, 1947 without an order of Magistrate of the Ist Class or to make any arrest without a warrant.

8. In these circumstances the conviction of the appellant was not legal and, accordingly. I accept the appeal on this ground and acquit him of the charge. He is discharged from the bail bonds. M. Y. H. Appeal accepted.