P L D 1969 Azad J & K 22 (PLP)

(2) That as soon as the illegal gratification was demanded from Ghulam Mohi‑ud‑Din an offence of criminal misconduct by a public servant as defined in section 5 (1) of the Prevention of Corruption Act had been completed. On receipt of an information to that effect the Inspector, Anti‑Corruption was bound to proceed under the mandatory provisions of section 154, Cr. P. C. and a case under section 5 (2) of the Prevention of Corruption Act should have been registered by him against the accused at the earliest possible opportunity, i.e. on 9‑3‑

66. Without registering a case the Inspector took steps towards the entertainment of the offence and investigation of the case by approaching the A. D. M. and with his assistance making arrangements for laying a trap and recovering the marked currency notes from the possession of the appellant. Such an investigation including the recovery of the currency notes prior to the recording of the F. I. R. violates the mandatory provisions of section 154; Cr. P. C. and section 23 of the Police Act and the evidence led to prove this recovery of the currency notes from the possession of the accused cannot be held admissible in evidence. (3) That there were serious discrepancies between the statements of the Inspector, the A. D. M. and Ghulam Mohi ud‑Din regarding the lodging of the F. I. R., the factum of recovery of the currency notes from the possession of the appellant and the presence of persons in the Court room at the time of the raid and this creates doubt as to the veracity of the prosecution witnesses. The Inspector and Ghulam Mohi‑ud‑Din are interested persons and unless their evidence is corroborated by the evidence of the impartial witnesses it cannot be relied upon. In support of these contentions the learned counsel has cited P L D 1968 Lah. 101, P L D 1963 S C 25 and P L D 1963 Kar. 582 and

805. I do not think that the objection of the learned counsel for the appellant that his client has been prejudiced in his trial, has any force in it. Previous sanction accorded by the District and Sessions Judge for the prosecution of the appellant in this case was not given by him in his capacity as a judicial officer but as an executive head competent to remove the appellant from his office. At the time of according sanction Malik Muhammad Aslam, the sanctioning authority no doubt had taken into consideration the facts and circumstances of the case and on the basis of it had inferred that prima facie the offence of criminal misconduct was revealed against the accused yet it would be wrong to say that the inference was drawn by him after he had fully acquainted himself with both the versions, i.e. that of prosecution and the defence and also the evidence available in support of them. The according of sanction by the District and Sessions Judge was surely not an act of the judicial nature but it was purely an executive act of the officer. As such granting of sanction for prosecution of the appellant by Malik Muhammad Aslam could not amount to an expression of opinion by him as to the guilt or innocence of the appellant. If that had been the case then the action of a Magistrate in a warrant case who frames a charge against an accused after finding a prima facie case against him under a particular section of Penal Code would also amount to an expression of his opinion and it would not be fair to the accused if that very Magistrate would hold the actual trial in that case and give his finding as to the guilt or innocence of the accused against whom the charge was framed by him earlier. Although the Magistrate would be acting as a judicial officer in such a case the Code of Criminal Procedure has not created any bar for hint to proceed with the subsequent trial of the accused and give his finding as to his guilt or innocence. In these circumstances would rule out objection No. 1 of the learned counsel for the appellant and hold that if the sanctioning authority after according the sanction for prosecution of an accused person proceeds to hear the case as Presiding Officer he would not beg, violating any provisions of law or acting in a manner prejudicial to the interests of the accused person. Such an authority while acting as judicial officer would record evidence in support of the prosecution as well as the version relied on by the defence and on consideration of the same come to a conclusion as to the guilt or innocence of the accused. I do not think that the previous sanction for prosecution of the accused which the Special Judge' had accorded as District and Sessions Judge could in any way affect his judgment in this case. I have perused the authority cited by the learned counsel for the appellant in support of objection No. 2 regarding the violation of the mandatory provisions of Chapter XIV of the Code of Criminal Procedure and section 23 of the Police Act, 1861 by the Police in not registering the case before starting the investigation and I am again of the view that the objection has no substance in it. The authority relates to two criminal appeals which were being heard by Shaukat Ali, J. of the Lahore High Court. Both the appeals were filed by two separate persons against their convictions and sentences under section 5 (2) of the Prevention of Corruption Act. In the course of the hearing of those appeals by the learned Single Judge two important questions of law were raised and the learned Single Judge had to request the Chief Justice to constitute a Full Bench for the consideration of the questions involved. The questions were :‑ (1) As to when does the investigation commence in a case under the Anti‑Corruption Act? and (2) Whether a statement made by an accused person recorded by a magistrate after the raid and the recovery of the tainted money from him without observing the formalities of section 164 of the Cr. P. C. is admissible or not? Only the answer to the first point of reference is relevant for the outcome of this case. The Full Bench was comprised of the Reference Judge i.e. Shaukat Ali, M. Jamil Asghar and Sajjad Ahmed, JJ. The main judgment was written by Shaukat Ali, J. It is a very elaborate judgment wherein the learned Judge has not only dealt very comprehensively with both the legal points involved and discussed the relevant provisions of law, i.e. sections 154, 156, 157 and 162, Cr. P. C. but also referred to a large number of legal authorities on the point. The judgment delivered in the reference was not a unanimous one. Two of the Judges, i.e. Shaukat Ali and M. Jamil Asghar thought that the investigation commences in the case as soon as the information is received by an Officer Incharge of a Police Station and therefore a police officer on receipt of such an information from any persona regarding commission of an offence of criminal misconduct or attempt at its commission is bound to comply with the requirements of Chapter XI V of Cr. P. C. relating to cognizable offences. I would like to reproduce here the relevant observations made by Shaukat Ali, J. in his judgment wherein Mr. Jamil Asgbar, J. had also concurred. They are :‑ The offence under section 161, P. P. C. or for that matter that of criminal misconduct under the Prevention of Corruption Act, 1947 is committed, the moment a demand for bribe is made by a public servant. A police officer, on receipt of information from any person regarding its commission or attempt at its commission, is bound to comply with the require ments of Chapter XIV of the Code of Criminal Procedure relating to cognisable offences, so far as they are applicable to an offence under the prevention of Corruption Act and if oar the basis of the aforesaid information he has reasons to suspect the commission of the offence, and takes steps towards the entertainment of the offence and the culprit thereof, then, investigation will be deemed to have commenced. It is often seen that a police officer in a corruption case neglects to record an information of a cognisable offence and instead takes the informant to the Magistrate, nominated by the appropriate authority for his statement being recorded and thereafter a trap is laid. By adopting this method the police officer violates the mandatory provisions of Chapter XIV of the Criminal Procedure Code and section 23 of the Police Act, 1961. Where a trap is laid to apprehend the accused red‑handed, the handing of the report and the documents prepared by the. Magistrate supervising the raid to the police officer accompany ing him as a member of the raiding party and the giving of direction by the former to the latter are not conditions. precedent to the commencement of investigation in a corruption case. In most of the trap cases, search of the person of the accused, recovery of the tainted money or the valuable thing. preparation of the recovery memo. and preparation of the raid. report are all done at the spot. Therefore, an investigation by the police commences with the first step taken by the police officer towards the entertainment of the offence and culprit thereof." Mr. Justice Sajjad Ahmed on the other band took a different view of the matter and his answer to the first question was that :

"Investigation for an offence under the Act starts when the first step is taken towards investigation qua the offence actually investigated. If the investigation has been initiated for the offence of the demand of illegal gratification, it starts as soon as the police officer takes a step to ascertain the facts and circumstances of the demand having been made for illegal gratification, and the circumstances connected with the laying of the trap would be steps in that investigation to test the veracity of the allegation about the demand. But if the allega tion about the demand has been ignored and no step has been taken for ascertainment of facts and circumstances for its detection and the trap is laid to build up the separate offence of `actual receipt of the bribe, even though its genesis lies in the allegation regarding the illegal demand, the investigation qua that offence, will start after the commission of that offence. Investigation follows the suspected commission of the offence, and does not precede it." The learned Judge in support of the view taken by him has referred to a number of authorities. Here I would like to refer to one of them which can hold us arrive at the right conclusion in this case. That is Crown v. Noor Alam (P L D 1955 Lab. 667) a D. B. judgment wherein Mr. Justice S. A. Rahman (the then Chief Justice) had laid down :‑ I do not think Mr. Zulla is right in saying that the police had started investigation of the offence revealed by the complaint of Muhammad Sadiq which had merely mentioned the demand of the respondent for illegal gratification and an arrangement for its payment having been agreed to. The offence for which the respondent was prosecuted was not the one evidenced by the complaint made to the Deputy Superin tendent Police by Muhammad Sadiq but the offence which was actually completed by the passing of the illegal gratification at the time of the raid. It could only be after the money had passed that investigation could in any sense be said to have started qua that offence. These remarks made in the D. B. judgment by Mr. Justice S. A. Rahman which have in turn been relied on by Mr. Justice Sajjad Ahmed, J. in P L D 1968 Lab. 101 appear to be a very correct appreciation and interpretation of the relevant provisions of Criminal Procedure Code and as such 1 would prefer to agree with the view of Mr. Justice S. A. Rahman given in P L D 1955 Lab. 667 and followed by Mr. Justice Jamil Asghar in P L D 1968 Lab. 101 rather than act on the majority view in the latter case. In the present case the offence for which the appellant was prosecuted was not the one in respect of which Ghulam Mohi‑ud -Din first made a complaint to Sardar Muhammad Yaqoob Khan, Inspector of Police (Anti‑Corruption) but the offence which was actually completed by the passing of the illegal gratification at the time of the raid. It was the receipt of tree bribe of Rs. 10 comprising of two currency notes of Rs. 5 denomination each by the appellant for which he has been prosecuted and not for demanding that amount. The information about the commission of an offence of demanding Rs. 10 as illegal gratification was, no doubt, given by Ghulam Mohi‑ud‑Din to the Inspector Police but this information was not taken seriously by him and lie did not care to take any steps towards entertainment of the offence (attempt at commission of criminal misconduct) or the culprit thereof. He on the other hand went to the A. D. M. with the information and it was the latter who moved into the matter and arranged a trap to apprehend the accused red‑handed. Thus it was the offence of the receipt of illegal gratification by the appellant for which prosecution was launched against him and in support of the same allegation evidence was adduced. I would, therefore, hold that the investigation in this case followed the commission of the offence and did not precede it as contended by the learned counsel for the appellant. The evidence regarding the recovery of the currency notes, etc, is, therefore, admissible in evidence against the accused. As far the last point made out by the learned counsel that the marked currency notes were not recovered from the possession of the accused‑appellant but were found from the fold of a blotting paper which was lying in front of him. He contended that this was a recovery from a public place which was accessible to all the litigants coming to that Court and that even at the time of the raid such litigants as stated by Raja Imdad Ali Khan were present there. According to the learned counsel the money could have been planted by anybody including Ghulam Mobi‑ud Din P. W. who was inimical to the appellant. Merely on the basis of such a doubtful recovery the appellant should not have been convicted particularly when the Inspector and Ghulam Mohi‑ud‑Din were interested witnesses. It is sufficiently clear from the record that the blotting paper from which the currency notes were recovered was lying just in front of the appellant at a distance of only 8` to 9 from him. I do not think that it was possible for anyone else to plant the F marked currency notes between the two leaves of the blotting paper before the very eyes of Muhammad Afzal Khan appellant who was using the blotting paper as a pad for writing the interim orders. Raja Imdad Ali Khan and Sardar Muhammad Yaqoob Khan, Inspector, Police both of whom appear to be disinterested persons and had no enmity with the appellant have deposed that the recovery of the tainted money was made from the fold of the blotting paper which was lying in front of the accused hardly at a distance of 8 to 9 inches from him. That place of recovery of the currency notes in my opinion could not have been accessible to others as the same was only a few inches away from the appellant and as such nobody could plant the marked currency notes there except the appellant himself. In this view of the matter I would hold that the currency notes which were earlier marked by the A. D. M. and which had been passed on to the accused‑appellant as illegal gratification by Ghulam Mohi‑ud‑Din P. W. were recovered from a place under the control of the appellant and consequently from his possession. In these circumstances the appellant who is a public servant has been rightly convicted for the offence of criminal misconduct defined in section 5 (1‑A) and punishable under section 5 (2) of the Azad Jammu & Kashmir Prevention of Corruption Act. I would, therefore, uphold the order of his conviction and sentence passed by the learned Special Judge (Anti‑Corruption), Muzaffarabad and reject his appeal. The bail bond of the accused appellant is cancelled and he is sent to Jail to undergo the sentence of imprisonment he has been awarded. S. A. H. Appeal rejected.