P L D 1969 Peshawar 109 (PLP)

In the alternative I will wait till 22‑12‑1966 for the return of the two things, otherwise I will send written complaint to S. P. Dera and D. I. G. Dera. It was also possible that if the things are not returned to me, I will lodge a complaint in Court under section

420. P. P. C. You are an officer of the Illaqa. You can talk with me over the matter at every time, but he (A. S. I. Farooq) should not be allowed to come to my house again. (Sd.) Syed Chan Shah, resident of Chakan. 13‑12‑1966.

3. This information contained in Exh. P. A./1 was received by S. I. Shamal Khan, S. H. O. Police Station Sadar (by post) on 15‑12‑1966. The Sub‑Inspector interrogated in writing and endorsed on this application : A. S. I. Farooq Ahmad Jan What is this matter 7 Furnish a detailed report about this.

4. It is alleged that S. I. Shamal Khan made enquiry on the spot and submitted his report (Exh. P. B./1) dated 25‑2‑1967. This report was returned to Police Station Saddar by the City Inspector on 8‑4‑1967 and ordered that a complaint under section 182, P. P. C. be lodged against the Bad Character (Chan Shah). Consequently, complaint, undated, on behalf of Shamal Khan Sub‑Inspector, S. H. O. P. S. Saddar against Chan Shah was put in Court.

5. The accused petitioner was tried by Afridi Khan Safi, A. C. and D9.

1. C., D. I. Khan. Chan Shah accused was examin ed under section 242, Cr. P. C. To the questions, "Did you give an application dated 13‑12‑1966 (Exh. P. A./1) against M. Farooq Ahmad Jan, A. S. I. P. S. Sadar, that he had received Rs. 100 from you on the pretext that he will not register your name in the Register of Bad Characters ?" He answered, "yes, I had made the application and it has based on facts". In support of the prosecution, P. W. 1 Farooq Ahmad Jan, A.S. I., P. W. 2 Shamal Khan, S. H. O. Sadar and P. W. 3 Alam Sher, Chairman, Union Council Chahkan, were examined. The accused produced D. W. 1 Malik Ahmad, D. W. 2 Ghulam g4qbir Shah, D. W. 3 Sultan and D. W.4 Muhammad Salt.

6. Farooq Ahmad Jan, A. S. I. (P. W. 1), in substance, stated that on 12‑12‑1966 Karim Bakhsh son of Muhammad Hussain of Chah Siddiqwala lodged a report against Chan Shah accused in the D. D. of P. S. Saddar D.

1. Khan at serial No.

5. The true copy of this report is Exh. P. B. On 12‑12‑1966 he went on gasht along with two F. Cs. to Chahkan and summoned the accused in the office of Union Council in con nection with the above‑mentioned report of Karim Bakhsh. Many people including B. D. Members were present in the Union Council Office. He directed the accused to come to the police station and then went on gasht. He stated that the accused has submitted a wrong and baseless application (Exh. P. A./1) to the S. H. O., P. S. Saddar, and that the accused has submitted similar applications to D. I. G. ‑and S. P., D. I. Khan. He enquired into the matter and he found the allegations and the applications brought against him by the accused to be false and baseless. He never obtained any money from the accused, nor the accused was capable to give such a big amount to him. In cross‑examination, the witness deposed that he had gone towards Chahkan in connection with other tameel as well as in connection with the report lodged by Karim Bakhsh against the accused. He did not know if any action under section 107, Cr. P. C. was taken against the accused and the other party Karim Bakhsh, because the accused did not come up to Police Station for which he had directed him at village Chahkan. The witness further added that no hot words were exchanged between him and the accused, nor he had rebuked or threatened the accused to attend the police station. He admits that he has checked the presence of the accused at his house on many previous occasions. He admits that Karim Bakhsh was his class‑fellow,. but refutes the suggestion that Karim Bakhsh had lodged the report at his instance.

7. Shamal Khan, S. H. O. (P. W. 2) submitted the com plaint (Exh. P. A.) under section 182, P. P. C. against Chan Shah accused in Court after having enquired into the written report (Exh. P. A./1) which the accused lodged to him against Farooq Ahmad Jan, A. S. I. P. S. Saddar. On his enquiry he found the report, i.e. complaint (Exh. P. A/1) lodged by the accused in writing to him as totally baseless and that the accused by doing so wanted to harm P. W. Farooq Ahmad Jan wrongly at the hands of his superiors. In cross‑examination, the witness stated I have not reduced in writing the statement of any witness during my enquiry in respect of the report Exh. P. A./1 made by the accused, though I had made enquiries verbally in respect of report Ex. P. A./1.‑In this connection I bad also questioned Farooq Ahmad Jan, A. S. I. but did not record his statement. It is correct that Chairman Alam Sher had been history sheeter a few years back.

8. Alam Sher, Chairman Union Council (P. W. 3), deposed that he was present when Farooq Ahmad Jan, A. S. I. came to the Union Council Office Chahkan. T he A. S. I. sent for the accused and asked him to come to the police station in connection With some complaint of Karim Bakhsh. This witness adds that no amount, whatsoever, was passed on by the accused to the said A. S. I. and nor the A. S. I. went to the house of the accused.

9. The learned counsel for the defence, I think rightly, did not rely on the evidence of three D. Ws., namely, Malik Ahmad, Ghulam Shabir Shah and Muhammad Shah. Out of the four D. Ws., D. W. 4 Muhammad Shah is the father of the petitioner D. W. 1, D. W. 2 and D. W. 4 went beyond the allegations of payment of Rs. 100 made in the application (Exh. P. A./1) to have been paid in privacy. These three witnesses are unanimous in saying that the A. S. I. slapped the petitioner and told the petitioner that he would challan him unless he pays the A. S. I. something and upon this the accused paid him Rs. 100 D. W. 3 Sultan states that he was present in the office of the Union Council when the A. S. I. with four F. Cs. went to the house of the accused. The A. S. I. returned after about half an hour along with the F. Cs. and the accused to the office of the Union Council.

10. The learned counsel for the petitioner, S. Masoom Shah Advocate, raised various legal and factual objections regarding the maintainability of the conviction and sentence of the petitioner. He argued that the information furnished to S. I. Shamal Khan in the application (Exh. P. A./I) contains the allegations of payment of Rs. 100 in privacy to Farooq Ahmad Jan, A. S. I. by the petitioner, which information related to the commission of cognizable offences under section 161, P. P. C. and section 5 (7) of the Prevention of Corruption Act, 1947, and as such it was mandatory for the Sub‑Inspector to have registered a case in view of section 154, Cr. P. C. and to have investigated the information so furnished, under section 156, Cr. P. C. He supplements this argument with Nazir Ahmad v. King‑Emperor (A I R 1936 P C 253) and Ghulam Abbas v. The State (P I. D 1968‑Lall. 101). The first authority enunciates a rudimentary rule, "that where a power is given to do a certain thing in a certain way the thing must he done in that way or not at all. Other methods of performance are necessarily forbidden". The dictum pronounced in the second authority is that "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 requirements of Chapter XIV of the Code of Criminal Procedure relating to cognizable offences, so far as they are applicable to an offence under the Prevention of Corruption Act and if on the basis of the aforesaid information he has reasons to suspect the commis sion of the offence, and takes steps towards the entertainment of the offence and the culprit thereof ; then investigation will be deemed to have commenced." Thus it was obligatory on the Shamal Khan, to have registered a case on) A receipt of the information contained in the application (Exh. P. A./1) received by him. However, it was not incumbents upon the Sub‑Inspector to have investigated the offences if in view of section 157 (1) (b) it appeared to him that there was no sufficient ground for entering on an investigation. But even in that case S. I. Shamal Khan in obedience to the provisions of section 157 (2), Cr. P. C. had to state in a report his reasons for not fully complying with the requirements of subsection (1) (b) of section 157 and must have forthwith notified the informant the fact that he will not investigate the case, or cause it to be investigated. In, Re: Shaik Kalesha (A I R 1957 And. Prad. 268) it has been observed "In the case of cognizable offences which a Station House officer considers futile to investigate, as for instance on account of the delay in giving the information, he could refuse investigation under section 157 (b). But the Code does not authorise him to refrain from entering the information in the station diary, on the ground that he intends to launch only security proceedings." Subsection (1) of section 4, Cr. P. C. defines investigation to include "all the proceedings under this Code for the collection of evidence conducted by a police officer . The expression `collection of evidence conducted by a police officer in this section of the Code is a short way of saying, `collection of material to be used as evidence conducted by a police officer. (Re : A. F. G. Price v. Emperor (A I R 1937 Lah. 160). In H. N. Hishbud and another v. State of Delhi (A I R 1955 S C 196) ) the meaning of investi gation and the scheme of the Code with regard to investigation has been explained thus :‑ "Under the Code investigation consists generally of the following steps (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magis trate for trial and if so taking the necessary steps for the same by the filing of a charge‑sheet under section 173 . . . . ." This view was also referred in The State of Madhya Pradesh v. Mubarak Ali (A I R 1959 S C 707). Thus, in my view, it was incumbent on S. I. Shamal Khan that on receipt of information of the commission of offences under section 161, P. P. C. and section 5 (7) of the Prevention of Corruption Act, 1947, contained in the petitioner's application (Exh. P. A./1) to have registered a case of criminal charge against A. S. I. Farooa Ahmad Jan. Although he could have refused to investigate the same as discussed above, but it was obligatory on him to have notified his refusal to the infor mant, say Chan Shah petitioner, and further that be should have entered the information in the station diary. Non‑compliance of these legal provisions, in my view, has caused prejudice to the petitioner.

11. The learned counsel for the petitioner secondly argued that after the close of the prosecution evidence and before recording the defence evidence the trial Court had also to hear the accused in view of subsection (I) of section 244, Cr. P. C. and examine him for the purpose of enabling him to explain the circumstances appearing in the evidence against him under section 342, Cr. P. C., Section 244 lays down that the Magistrate shall hear the accused, it certainly means that he should ask the accused what he has to say in his own defence against the charge which has been brought against him, and in explanation of the evidence which has been led to support the charge. (Re : Qazi and another v. Emperor (A I R 1945 Nag. 127) and Gulabjan v. Emperor (A I R 1922 Bom. 290) ). By‑passing the stage of hearing the accused and rushing to ask him to enter upon his defence is p illegality not of a trivial kind (Re : Mastan Singh and another v. The State (A I R 1953 Pepsu. 125) ). The applicability of section 342, Cr. P. C. to summons cases has been a controversial point between several High Courts. The High Court of Madras has held that section 342, Cr. P. C. does not apply to summons cases and that consequently it is not obligatory on the Court to examine the accused though it may be desirable to do so (Re : Ponnusawami Odayar and others v. Ramasami Thathan (A I R 1924 Mad. 15) ). A Full Bench of the High Court of Rangoon has also come to the same conclusion on the additional ground that the words in section 245, namely, "if he thinks fit" give a discretion to a Court to examine the accused or not and that such discretion is incompatible with the imperative provisions of this section (Emperor v. Nag La Gyi and another (A I R 1931 Rang. 244) ). In Kale Khan and others v. King Emperor (A I R 1927 Lah. 268) and Shadi Khan v. Mst. Gul Begum (A I R 1927 Lah. 435 (1)), Zafar Ali, J. also held the view that section 342 does not apply to summons cases. However, the general trend of opinion of all other Courts is that this sec tion 342 applies equally to summons cases as well as to warrant cases and that the words "if he thinks fit" in section 245 have reference to cases in which the Magistrate E is prepared to acquit the accused, even on a consideration of the prosecution evidence as it stands, without calling on the accused for his defence and without hearing him (Emperor v. Janardhan Kashinath (A I R 1931 Born. 195), Emperor v. Nabu (A I R 1926 Sind 1 (2)) and several other cases of Allahabad, Lahore, Nagpur, Bombay, Calcutta, Sind and Patna). Thus the non‑hearing of the accused petitioner under section 244, Cr. P. C. after the close of the prosecution evidence and before the examination of the defence evidence, which is P mandatory, by the trial Court, has resulted in miscarriage of justice which is fatal to the trial of the petitioner in a summons case.

12. The learned counsel for the petitioner also argued on facts that as regards the alleged payment of Rs. 100 by the petitioner to A. S. I. Farooq Ahmad Jan in privacy, the prosecu tion bases its case on the denial of P. W. Farooq Ahmad Jan only, who in no circumstances would admit the acceptance of the alleged amount of money and that against this there are the allegations of the petitioner in this application (Exh. P. A./1) which the petitioner has admitted to be correct and based on facts, and the statement of an independent witness, Sultan (D. W. 3), to the effect that the A. S. I. had gone to the house of the petitioner from the office of the Union Council and his return there after about half an hour. The learned counsel further argued that at best there was the word of the petitioner supported by D. W. Sultan as against that of the A. S. I. who had been accused of having taken an illegal gratification of Rs. 100 from the accused petitioner, and therefore the guilt of the offence under section 182, P. P. C. has not been established. The petitioner in his application (Exh. P. A. 1) has stressed that non‑return of money to him will also be reported to S. P. Dera and D. I. G. and that he would also lodge a complaint under section 420, P. P. C. in Court against the A. S. I. It has been admitted by the prosecution that the petitioner did give two more applications to the same effect to S. P. Dera and D. I. G. Police, and Mohabat Hussain, District Inspector Police, had made ‑enquiries into to the allegations contained in the two applications. The learned counsel vehemently argued that these circumstances give a colour of credence to the allegations of the petitioner against the A. S. I. The prosecution admits that A. S. I. Farooq Ahmad Jan had visited the office of the Union Council Chahkan, but that was in relation to a report by Karim Bakhsh against the petitioner which was entered in Daily Diary No. 5 dated 12‑12‑1966 of Police Station Sadar (copy Exh. P. B.). In this report, Karim Bakhshis stated to have apprehended imminent danger of peace against the petitioner. The prosecution alleges that A. S.

1. Farooq Ahmad Jan had gone to the Union Council Office and had summoned the petitioner there with a view to take action against him consequent to this report (copy Exh. P. B.). Farooq Ahmad Jan, A. S. I. (P. W. 1) has deposed that he had .only directed the petitioner to come to the police station ~on 16‑12‑1966. He neither himself took any action under section 107/151, Cr. P. C., nor he had any knowledge if any such action was taken against the petitioner. This Karim‑Bakhsh has not been produced in Court to support the allegations in the report (copy Exh. P. B.). Farooq Ahmad Jan, A. S. I. (P. W. 1) admits that this Karim Bakhsh is his class fellow. This it can be reasonably argued that the prosecution has manipulated the entry of this report of Karim Bakhsh (copy Exh. P. B.) as a counter to the allegations of the petitioner in his application (Exh. P. A./1). Alam Sher, Chairman Union Council Chahkan) (P. W. 3), has been a history sheeter a few years back, and this fact casts doubt on his credit as well. To me, therefore, the prosecution case appears to be unreliable and in treating it so the prosecution has failed to prove beyond reasonable doubt the charge under section 182, P. P. C. against the accused‑petitioner. Again, placing the prosecution evidence and the defence version and evidence in juxtaposition, an equally plausible inference cam be inferred in favour of the accused‑petitioner and in law the inference in favour of the accused is to be accepted.

13. With the above discussion of law applicable to the case and the facts, I accept the revision petition, set aside the conviction and sentence of the petitioner and acquit him. He is on bail and his bail bond is discharged. K. E./K. B. A. Petition accepted.