2015 P Cr (PLP)

IJAZ AHMAD, J.

The appellant was challaned by Anti-Corruption Establishment, Rawalpindi to face trial in criminal case F.I.R. No.4 dated 29-1-2011 registered under section 5 of the Prevention of Corruption Act No.II, 1947 at P.S. ACE, Rawalpindi. The Special Judge, Anti-Corruption Court, Rawalpindi observed that the aforesaid offence was not made out, the provisions of Article 155-C of the Police Order, 2002 were however attracted. He convicted the appellant under section 155-C of the said Order and sentenced him to three years' R.I. with a fine of Rs.25,

000. In default thereof, he would further undergo three months' S.I. Benefit of section 382-B of Cr.P.C. was extended to the appellant.

2. Respondent No. 2 had a criminal case F.I.R. No.255 dated 23-11-2007 registered under sections 324 and 337-H(2), P.P.C. at Police Station, Jatli. The investigation of the said case was entrusted to Qamar Javed, Sub-Inspector. He was suspended from service by the CPO on the allegation of having joined hands with the culprits. The investigation was then entrusted to Fazal-e-Haq, the present appellant who also allegedly colluded with the culprits. The RPO made a surprise visit of Police Station, Jatli. The appellant was found suffering from negligence and misconduct. He was also suspended from service. The appellant continued to conduct the investigation of the case. He also recommended the cancellation of F.I.R. during this period. Hence, on an allegation made by respondent No.2 F.I.R. No.4 dated 29-1-2011 was registered against the appellant.

3. Report under section 173, Cr.P.C. was submitted in the Court. The charge was framed under sections 5/2/47 of P.C.A. to which the appellant pleaded not guilty and claimed to be tried.

4. In order to prove its case, the prosecution produced as many as four witnesses. P.W.1, Ishfaq Hussain is the complainant of this case who moved the application Exh.PA, against the appellant to the Anti-Corruption Establishment. P.W.2, Amir Siddique produced the certified copies of suspension order P.1, show-cause notice dated 23-10-2008 P-2 and inspection report P-3 pertaining to the appellant. P.W.3, Syed Kasim Naqvi, is the Investigating Officer who also proved F.I.R. Exh.P.A/1 and recovery memo. Exh.PC which was prepared by Asif Iqbal Bhatti. P.W.4, Shahid Mehmood, constable also produced certified copies of Zimnies of case F.I.R. No. 255 dated 23-11-2007.

5. It is contended by the learned counsel for the appellant contends that the RPO had no authority to suspend the appellant as appointing authority under section 23 of Police Order, 2002 for a junior rank officer is DPO or CPO, that while continuing with the investigation, the appellant was not committing any offence; that the documents Exh.P-1 to Exh.P-3 do not stand proved as author of these documents or the person who attested the same were not produced as witnesses, therefore, the admission of these documents in evidence is illegal; that the charge against the appellant was framed under section 5/2/47 of P.C.A. whereas the conviction was ordered under Article 155-C of Police Order, 2002, which is a sheer illegality; that the suspension order was never communicated to the appellant. The moment, he came to know, he discontinued the investigation and that the judgment on the face of it suffers from gross illegality as the conviction has been ordered for the offence which the appellant has not committed. Relies on (2011 SCMR 45) titled "Mushtaq Hussain and another v. The State", (2010 SCMR 385) titled "Muhammad Rafique and others v. The State and others", (2013 SCMR 1113) titled "Dawa Khan through L.Rs. and others v. Muhammad Tayyab", (2013 MLD 16) titled Rabia Akhtar and another v. Muhammad Ayub and 2 others", (2005 SCMR 152) titled "Anwar Ahmad v. Mst. Nafis Bani through Legal Heirs", (PLD 2008 SC 513) titled "Muhammad Asghar v. State" and (2013 SCMR 395) titled "DPO Chiniot and others v. Muhammad Ayub".

6. The learned ADPP supports the judgment. Contends that the appellant was suspended from service on the charge of negligence and misconduct. Exh.P-2 is a copy of show-cause notice dated 23-10-2008 by the same RPO to the appellant and the document Exh.P-3 is the inspection note recorded by the RPO on his surprise visit to police station Jatli; that the suspension order was duly communicated to the appellant and by no means the judgment passed suffers from any illegality or irregularity.

7. Heard. Record perused.

8. It is an admitted fact that the appellant was the Investigating Officer of F.I.R. No.255 dated 23-11-2007. The document Exh.P-3 reveals that the appellant was suspended from service on 20-10-2008 by the RPO, Rawalpindi and the order was issued on 21-10-2008. It cannot be believed that the appellant was not communicated the order and he was totally unaware. The RPO has undertaken thorough inspection of Police Station, Jatli and found the appellant suffering from misconduct and negligence. He was issued the show-cause notice. The record shows that the appellant was suspended on 20-10-2008 but he continued the investigation of F.I.R. No. 255 till 25-10-2008. Article 26(2) of the Police Order, 2002 reads that the powers and functions vested in a member of police shall remain suspended while such an officer is under suspension. As regards the contention of the learned counsel for the appellant the RPO was not a competent authority, it carries no weight. The RPO is a senior officer in rank to DPO. The powers available to a junior officer also vest in an officer of the higher rank. The appellant could not impinge upon himself the responsibility to decide whether the PRO was a competent authority or not. The argument that the learned Special Judge convicted the appellant under the offence which the latter was not alleged to have committed and was not made aware of, carries no force. The appellant did know the nature of accusation, that is illegally continuing with the investigation even after his suspension from service. He could be convicted and sentenced in an offence under another section of P.P.C. as subsection (4) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958, postulates. A Special Judge may convict the accused of any offence which from the facts admitted or proved he appears to have committed. Similar intent is conveyed by the legislation through the provisions of sections 237 and 535, Cr.P.C. The Special Judge has not acted beyond his jurisdiction.

9. For what has been discussed above, the impugned judgment does not suffer from any illegality or irregularity. This appeal having no force is hereby dismissed. MH/F-10/L Appeal dismissed.