2007 P Cr (PLP)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that the appellant was serving in police department as S.-I. He was entrusted with the investigation of Crime No.450 of 2002. During investigation he submitted papers before the superior officers, where the papers were placed before D.S.P. Safia who opined that the case was false. In spite of that the appellant conducted further investigation and submitted the challan against the accused in the said crime before the Anti-Terrorism Court. The said accused persons were - tried and acquitted. The learned trial Judge observed that the investigation was not conducted properly, hence a notice under section 27 of Anti-Terrorism Act, 1997 was ordered to be issued against the appellant. In pursuance of the said order, a notice was issued to the appellant who submitted his explanation but it was found to be unsatisfactory, therefore, the learned trial Judge ordered for the prosecution of the appellant.

2. On 19-4-2003, the trial Court framed the charge for, offences punishable under section 19(2)(4) and section 27 of the Anti-Terrorism Act, 1997. The appellant pleaded not guilty. The trial Court examined Junaid Ahmed Khan, Assistant of the Court who produced the true copy of the show-cause notice issued to the appellant under section 27 of the Act, 1997, order passed on it, the statement of appellant recorded by trial Court in Crime No.250 of 2002 and the judgment delivered in the said crime. Thereafter the trial Judge recorded the statement of the appellant under section 342, Cr.P.C.

3. After considering the material available on the record and hearing the parties' counsel, the learned trial Judge convicted the appellant under section 27 of the Act, 1997 and sentenced him to pay a fine of Rs.1,00,000 (Rupees one lac) or in default thereof to suffer S.I. for three (3) months under the impugned judgment dated 3-6-2003.

4. We have heard the Advocate for the appellant, A.A.-G. for the State and perused the record of this case very carefully.

5. The learned Advocate for the appellant has stated that the appellant was already punished by department for the defective investigation and has been reverted through an inquiry conducted by D.S.P. Safia but the said inquiry report has not been produced in Court; that the trial Court has relied upon the said inquiry report and convicted the appellant, therefore, the conviction is illegal. Alternatively, he has argued that if the Court finds the appellant guilty then a lenient view may be taken in awarding the sentence of fine because the appellant has already been punished and he is a low paid employee of Police Department.

6. Conversely, the learned A.A.-G. has stated that the appellant himself admitted the fact of holding inquiry and punishment thereunder in his statement recorded under section 342, Cr.P.C.; that he had also produced copy of order by which he was suspended during the said inquiry, therefore the appellant has been rightly convicted by the trial Court. He has stated that the appellant has already been adequately punished in a departmental inquiry, therefore, his case requires to be examined in the light of the said punishment.

7. We have given due consideration to the arguments, gone through the material available on the record and found that the appellant was tried for conducting defective investigation in Crime No.450 of 2002. After investigation, the papers were placed before D.S.P. Safia who found the case to be false but in spite of that the appellant investigated the case and challaned the accused persons in the said case. Ultimately the trial Court also acquitted the said accused persons and ordered for the prosecution of appellant for defective investigation. It is pointed out that investigation also includes the forming of opinion as held in H.N. Rishbud v. State of Dehli AIR 1955 SC

196. The appellant in spite of clear finding of D.S.P. who scrutinized the investigation still continued with the investigation and ultimately submitted the challan before the Court after forming his opinion that the accused involved in the said case were culprits but the trial Court did not agree with the Police Officer and acquitted the accused persons.

8. All the facts have been admitted by the appellant in his statement recorded under section 342, Cr.P.C. As such, the appellant has been rightly convicted for the said offence. We do not find any illegality or irregularity in the impugned judgment with regard to the conviction. However, keeping in view the status of the appellant in the police department, in addition, under departmental inquiry he was put under suspension and then reverted from the post of S.-I., therefore, we feel that the sentence of fine of Rs.1,00,000 requires to be reduced to Rs.25,000.

9. Above are the reasons of our short order, dated 1-3-2006 by which we had dismissed the appeal with the modification in the sentence of fine. H.B.T./A-12/K Order accordingly.