1983 P Cr (PLP)

Crown v. Noor Alam P L D 1955 Lah. 667 ; Altaf Hussain v. The State P L D 1965 (W. P.) Kar. 139 and Crown v. Mehr Ali P L D 1956 S C (Pak.) 107 rel. Hassan Ahmad Khan Kanwar for Petitioner. This is an application under section 561‑A of the Code of Criminal Procedure, by Umar Hayat Patwari, against whom a case under sections 161 and 406 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act II of 1947, is pending in the Court of Additional Deputy Commissioner (G), Special Judge, Sahiwal.

2. The allegation is that while posted as circle patwari in Chak No. 162/9‑L, Tehsil Sahiwal, abusing his position as public servant, he cheated Khan son of Mokha and eight others by issuing bogus allotment orders of thetas in the chiragh area of the Chak and in consideration thereof, extracted money from them to the tune of Rs. 1,400 by way of illegal gratification. The possession of 1hatas was also delivered.

3. The contention of the learned counsel for the petitioner is that though the case was registered against the petitioner in August, 1967, no evidence bas been recorded against him so far. The explanation of the trial Judge was sent for. He was asked to explain, as to why, no evidence had been recorded in the case for the last about four years. The explanation has been received. It reveals that the case was pending in the Court of Special Judge, Anti‑Corruption, Multan, and was transferred to the Additional Deputy Commissioner (G) Special Judge, Sahiwal on 9th June, 1970 He has stated that he had been adjourning the case due to other official activities, therefore, he could not record the evidence. He submitted, that "now it will not take very long for its disposal."

4. Apart from the explanation of the Special Judge, I feel that the mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings. In the case of Ghulam Muhammad v. Muzammal Khan and 4 others (P LD1967SC 317) where a question of delay was pressed into service, their Lordships of the Supreme Court held :‑ "The respondents next urge that the High Court's order being. based upon reasons which are not altogether irrelevant should not be interfered with by this Court, since the proceedings having started in 1958, nine years have now elapsed. We are not impressed by this argument. The reasons given by the High Court are, by no means, cogent. If, in fact, an offence had been committed justice required that it should be inquired into and tried. If the respondents are not guilty, they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings, as was pointed out in the case of M. S. Khawaja v. The State (P L D 1965 S C 287).

5. The next contention of the learned counsel is that if the case is allowed to proceed, it will be a mock trial inasmuch as no case has been made out against the petitioner. For his contention learned counsel has placed reliance on document Annex.. `B', purporting to have been received from the Examiner Questioned Documents. He examined the disputed documents and compared them with the handwriting and signatures of the petitioner and came to the conclusion that :‑ "No definite opinion can be given as to whether or not, the questioned signatures marked 8/11 was written by the writer of the specimen signatures on sample paper marked B, because sufficient identifying data is not available." In the same breath, learned counsel admitted, that the persons involved. namely. Khan son of Mokha and eight others, who were alleged to have passed on illegal gratification to the petitioner, have supported the prosecution case. It is not for this Court to decide the fate of the case finally. It would be the function of the trial Court to give a decision about it, after recording evidence.

6. The last argument of the learned counsel is, that the matter was investigated by Station House Officer, Incharge of Ghazi Abad Police Station, who could not legally Investigate the same and, therefore, by virtue of section 5‑A of the Prevention of Corruption Act II of 1947, no cognizance could be taken by the trial Judge. There is no denying the fact that section 5‑A provides that no officer below the rank of Inspector of Police shall investigate any offence punishable under any of the sections of the Pakistan Penal Code mentioned is section 3 or any offence punish able under section without an order of a Magistrate of the First Class. It is also correct, that the aforesaid procedure has not been adopted in this case. The question, however, would be, as to what is the effect of the investigation carried out by the Sub‑Inspector of Police. This question came up for consideration in the case of Crown v. Noor Alam (P L D 1955 Lah. 667). The accused had been convicted and sentenced under section 161 of the Pakistan Penal Code by the trial Magistrate. On appeal, he was acquitted by the Court of Session on the ground that the trial was vitiated because the police investigation was in contravention of the proviso to section 3 of the Prevention of Corruption Act 11 of 1947, as it stood before the amending Act (XXXVII of 1953). The investigation of the case had not been in conformity with the aforesaid provisions of law. An appeal was preferred to the High Court against the acquittal of Noor Alam by the Crown and their Lordships of the Division Bench were pleased to observe that the jurisdiction of the Court is not ousted merely because the report was submitted by a police officer who was not authorised to investigate. The infringement of the proviso to section 3, of the Prevention of Cor ruption Act should be regarded merely as an irregularity falling within the admit of section 537 of the Criminal Procedure Code and unless it has caused actual prejudice to the accused it should not be held to vitiate the trial. In the case of Altaf Hussain v. The State (P L D 1965 (W. P.) Kar. 139), a learned Single Judge repelled the contention that investigation by a Sub‑Inspector of Police in violation of section 5‑A of Act II of 1947, would affect the jurisdiction of the trial Court. Reliance was also placed on a decision of the Federal Court reported as Crown v. Mehr Ali (P L D 1956 S C (Pak.) 107). In the last mentioned case, the investigation carried out by an Inspector of Sind Anti‑Corruption Police into an offence under section 161 of the Pakistan Penal Code: committed by a Central Government employees was held regular. Agreeing with the aforesaid authorities with respect. I hold that the contention of the learned counsel that the jurisdiction of the Special Judge is ousted because of the fact, that the matter was investigated by a Sub‑Inspector from Police, is not correct.

7. No other contention was raised.

8. For the foregoing reasons, I find no merit in the petition and the same is dismissed in limine, with a direction to the learned Special Judge to expedite the hearing of the case and try to dispose it of as early as possible. M.Y. H. Quashment application dismissed.