1999 P Cr (PLP)

Date of hearing: 10th July, 1998. Sher Ali son of Abdur Rehman of village Baghdada Mardan is apprehended under section 161, P.P.C. read with section 5(2) of the P.C. Act, on the strength of F.I.R. No.2 dated 25-4-1998 of Anti-Corruption Establishment Mardan. He was refused bail by the learned Special Judge, Anti Corruption.

2. The background of the case is that one Mirza Gul son of Rahim Gul, on 3-3-1998, had obtained a decree from Civil Court, Mardan, on the basis of which he wanted to get a mutation entered. Sajjad Gul, his son contacted Patwari Halqa but the latter demanded Rs.5,000 for getting the mutation entered. Sajjad Gul complainant made a complaint before Member Khidmat Committee, Mardan.

3. Subsequently, a raid supervised by Mr. Dedan Gul Safi, Executive Magistrate, Mardan was organized, tainted money was passed to Sher Ali Patwari, Halqa through the complainant who was eventually apprehended and a sum of Rs.3,000 as such money was recovered from him.

4. Learned counsel for the petitioner assailed the whole proceedings on many fold grounds. His objections were, firstly; that no time and place of occurrence is shown in the F.I.R. secondly, that no date of registration of case is shown; thirdly, that the investigation is conducted by members of Khidmat Committee; fourthly, that the F.I.R. was chalked before the commission of offence and before organizing a trap and; lastly, that the signatures of the witnesses had been obtained on statements under section 161, Cr.P.C. which are prohibited under section 162, Cr.P.C.

5. A glance through the record indicates correctly that no time and place of occurrence is mentioned in the F.I.R. and no date of registration of case is visible either, in the relevant column but at the same time, it indicates the enthusiasm of the Investigating Officer who forgot to properly write the things at proper places, most probably because of the fact that members of Khidmat Committee were around. I have considered the matter and believe that the anxiety of the Investigating Officer though not justified yet has caused no damage to the accused. The time and place of occurrence can conveniently be ascertained from the recovery memos. as well as the site plan and will be clarified by the witnesses concerned at the time of trial. For the moment no prejudice is caused to the accused. The date of registration is also not doubtful because the rider to the F.I.R. indicates that the F.I.R. was chalked there and. then almost simultaneous to the writing thereof.

6. The last three submissions of the learned counsel cannot be ignored at least at bail stage because the application, dated 25-4-1998 contains an endorsement in writing by two members of Khidmat Committee Mardan who have expressed in writing that the case had been enquired into by them and that it was perfectly genuine. Influenced by such endorsement, the anxiety of the Investigating Officer .stands answered but the learned Assistant Advocate General could not explain before me as to under what law and under what authority the members of Khidmat Committee had conducted investigation and in their mind had been satisfied that the charge against the accused was perfectly justified. The learned Assistant Advocate-General also an- 1 not explain as to what authority they had to influence the investigation and to cause a deviation from the normal course of investigation. This is indicative of glaring illegalities committed during investigation and undue influence exerted by a Committee whose legal status could not be explained or defined and whose action has led to mala fide investigation.

7. In cases like one in hand and even otherwise an offence is not complete unless committed by an accused. The offence in the instant cage, if at all, was complete when the tainted money was recovered from the accused but rider to the F.I.R. would indicate that the F.I.R. was chalked much before the commission of offence and even before organizing a trap. This putting of the cart before the horse and the over zealousness of the Investigating Officer has been the result of his having been unduly influenced or his having been harrassed, by the members of the Khidmat Committee.

8. All the witnesses in the present case, examined under section 161, Cr.P.C., were made to sign their statements which is imperatively prohibited under section 162, Cr.P.C. It is a fair contradiction in terms as well as in law that on the one hand, a statement given under section 161, Cr.P.C. is inadmissible in evidence and on the other hand, after having been signed by the witness, it gives an impression of having become binding. That is why such signing of statement under section 161, Cr.P.C. by the witness is prohibited under section 162, Cr.P.C. The admissibility of the statements of such prosecution witnesses remains yet to be determined at trial. Tilll it is so determined, the petitioner, who is a Government servant and the chances of whose abscondence are very remote, is entitled to be released on bail.

9. Consequently, the petitioner is directed to be released on bail provided a bond in a sum of Rs. 80,000 with two local, reliable and resourceful sureties is furnished to the satisfaction of learned Special Judge, Anti Corruption. N.H.Q./163/P Bail allowed,