1984 P Cr (PLP)

Ss. 561-A & 537-Prevention of Corruption Act (II of 1947), S. 5-A-Contention that in a corruption case investigation conducted by a Sub-Inspector of Police, was illegal as he was not competent to investigate such cases in view of provisions contained in S. 5-A of Prevention of Corruption Act which conferred such powers on a police official not below rank of Inspector-Repelled-Violation of provisions of S. 5-A of Corruption Act, held, a mere irregularity curable under S. 537, Cr. P. C.

Quashing of proceedings under S. 161, P. P. C. and S. 5 (2) of Prevention of Corruption Act, declined. State v. Muhammad Hussain P L D 1968 S C 265; Muhammad Rafique v. State 1973 P Cr. L J 366 and Jainullah v. State P L D 1961 Dacca. 565 rel. Rao Hamid Mukhtar Khan for Petitioner. This is an application for quashment of proceedings under section 561-A, Cr. P. C, The background is that a case is registered against the petitioner under S. 161, P. P. C. read with section 5 (?) of the Prevention of Corruption Act of 1947 at Police Station A.C.E. Sahiwal on 18-10-1982. The allegation against him is that he demanded Rs. 500 for completion of papers about an Ihata allotted to the complainant and the tainted money was recovered from the drawer of his table. At present the case is pending before Judge Anti-Corruption, Sahiwal. The reasons for moving this application for quashment of proceedings are that firstly, the investigation was conducted in the instant case by a Sub-Inspector and that under section 5-A only a Police Officer with the rank of Inspector can conduct investiga tion in such matters; and secondly, that the raiding Tehsildar was not a Magistrate First Class and, therefore, he was not authorised to take cogni zance of the matter. There are also other grounds on which this petition for quashment is being moved but they are not relevant and I need not discuss them. So far as these legal grounds are concerned, learned counsel is basing his arguments on a judgment passed by a Single Bench of this Court, namely, Justice A. Rehman on the 17th of November, 1981. In that case the argument raised was that in corruption case investigation conduct ed by a Sub-Inspector was illegal as he was not competent to investigate the case in view of the provisions of section 5-A of the Prevention of Cor ruption Act which requires that no official below the rank of Inspector shall investigate any offence punishable under section 161 of the Pakistan Penal Code read with section 5 (2) of the Prevention of Corruption Act. The judgment of Mr. Justice A. Rahman does not at all indicate that any discussion was held in the matter. After recording the arguments of learned counsel for the petitioner in that case, learned counsel for the State appears to have conceded that the aforementioned legal position, as stated by the petitioner, was correct. So it was held that the investigation of the case and all the subsequent proceedings, therefore, were contrary to the provisions of law and in view of the legal position discussed in the brief judgment, proceedings against the petitioner pending in the Court of the Special Judge Anti-Corruption were quashed. I have gone through the detailed order passed by the Judge Anti-Corruption, in the instant case dated 21-4-83 on an application moved by the petitioner under section 249-A Cr. P. C. read with section 265-K, Cr. P. C. He has observed therein that factually the case in question was investigated only partly by the Sub- Inspector of Police and not wholly because the case was also investigated by Police Inspector Falak Sher Chishti, who verified the investigation made by the Sub-Inspector and then submitted the challan in the Court. Thus, factually the position in this case is different. On the legal side of the question he has quoted numerous authorities to show that in a case of this nature where there is any infringement of the provisions of section 5-A, it is not an illegality but a mere irregularity and such an infringement does not affect the jurisdiction of the Court. In this connection State v. Muhammad Hussain (P L D 1968 S C 265) has been cited. In that case it was held that the violation of a provision specifying by what police officer a case of corrup tion by a public servant is to be investigated is only an irregularity falling to be dealt with under section 537, Cr. P. C. and that trial is not vitiated. The Supreme Court judgment is sufficient for citation in the present case. However, there are numerous other authorities which have been cited is the order, namely, Muhammad Rafique v. State (1973 P Cr. L J 366) and in that case too it was held that a violation of procedure of this nature was an irregularity which did not affect jurisdiction of a Court. Then Jainullah v. State (P L D 1961 Dacca 565) has been cited wherein it was held that an infringement of section 5-A of the Prevention of Corruption Act was a mere irregularity which could be corrected by following the procedure laid down in section 537, Cr. P. C. and unless it has caused prejudice to the accused, it could not be held to have vitiated the trial. He has also properly dealt with the other ground i.e. that the raid, in the instant case, was not conducted by a Magistrate First Class, and has rightly rejected it. In the light of the principle laid down in State v. Muhammad Hussain I do not find any substance in this petition for quashment which is accordingly dismissed in limine. S. G. D. Petition dismissed.