2004 PLP 1766 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

This criminal petition for leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, is directed against judgment, dated 15-1-2004, passed by a learned Single Judge of the Lahore High Court, Multan Bench in Criminal Appeal No 212 of 1994.

2. The brief facts of the case are that Ahmed Yar, P.W.6., made an application to the Anti-Corruption Establishment, Vehari stating therein that the petitioner, who was a Sub-Divisional Clerk in the office of S.D.O., WAPDA, Mailsi, District Vehari, had demanded Rs.300 from him as illegal gratification in connection with the installation of electric meter. However, the matter, was settled at Rs.200. A case F.I.R. No.14, dated 8-8-1984 was registered against the petitioner at the Police Station, Anti-Corruption Establishment, Vehari, under the provisions of section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act). A raiding party constituted for the purpose conducted a raid and recovered from him tainted currency notes of Rs.200.

3. Since, WAPDA was an organization of the Federal Government, therefore, the investigating of the case was transferred to Federal Investigation Agency, Mailsi, District Vehari, where a fresh F.I.R. No.168, dated 4-10-1984 was registered and investigated against the petitioner under section 161, PT.C. The Agency submitted the challan before the Special Judge (Central), Multan. The trial Court, by judgment, dated 15-12-1994, found the petitioner guilty of the charge under sections 161, P.P.C. and 5(2) of the Act. He was convicted and sentenced to 2 years' R.I. with a fine of Rs.500 and in default of payment of fine to further undergo R.I. for two months. However, the benefit of section 382-B, Cr.P.C. was extended to him. He preferred Criminal Appeal No. 212 of 1994 against his conviction and sentence which was dismissed by a learned Single Judge of the Lahore High Court, Multan Bench by the impugned judgment, dated 15-1-2004. Hence this petition for leave to appeal.

4. The learned counsel for the petitioner argued that the Anti Corruption Establishment had no jurisdiction to register and conduct initial investigation of the criminal case against the petitioner who was an employee of WAPDA which had been set up by the Federal Government. The complainant Ahmed Yar, P.W.6, had also sworn an affidavit thereby exonerating the petitioner. It was further contended that P.W.4 Liaquat Ali, L.D.C., WAPDA, had produced the relevant record which showed that the petitioner was not officially concerned in the matter. The learned counsel submitted that the raiding Magistrate, P.W 5 Rana Irshad Ali had stated before the trial Court that neither he had, heard the conversation nor the bribe money was passed within his view and that the tainted money was found lying on the ground. The learned counsel further submitted that the tainted currency notes were not produced before the trial Court. Therefore, the trial of the petitioner was vitiated It was lastly argued that the prosecution had failed to prove its case against the petitioner beyond reasonable doubt and the impugned judgment was liable to be set aside.

5. We have heard the learned counsel for the petitioner at some length. We have also gone through the available record. We find that the trial Court as well as the High Court believed the prosecution evidence qua the petitioner. Rana Irshad Ali, P.W.5 was the raiding Magistrate. He clearly stated that the petitioner was holding the tainted currency notes in his hand which he threw on the ground when he introduced himself to him. The same were recovered vide memo. Exh.P.W.5/C, He also proved the raid report Exh.P.W.5/G. Another decoy witness, P.W.2, Bahadur Khan, a Police Constable, also stated that the petitioner threw the tainted currency notes on the ground immediately after the raiding Magistrate disclosed his identity to him. The Police Inspector Malik Khadim Hussain, passed away during the trial of the case. The bribe money could not be produced before the trial Court as the same was found vide Exh.P.D., E and F to have been misappropriated by the then Moharrar of the Anti-Corruption Establishment, Vehari. The case against the petitioner was duly established by the prosecution.

6. As regards the objection against registration and initial investigation of the case by the Provincial Anti-Corruption Establishment, suffice it to say that no prejudice was shown to have been caused to the petitioner on account of any defect or irregularity in the course of investigation. We, however, find that on its transfer, the Federal Investigating Agency registered a fresh F.I.R, conducted investigation and submitted final report under section 173, Cr.P.C. for taking cognizance of the offence by the trial Court. The defect of investigation of a case, if any, did not affect the jurisdiction of the trial Court to try the case in the absence of any miscarriage of justice. Ordinarily, an irregularity in police investigation is curable under section 537, Cr.P.C. and does not vitiate the trial. A similar question was considered by the superior Courts in a series of case. In M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101, an investigation into the offences of corruption by a Police Officer attached to the Anti-Smuggling (Rice and Paddy Mobile Team) was not interfered with.

7. In another case titled The Crown v. Mehr Ali PLD 1956 FC 106, the investigation for an offence under section 161, P.P.C. against a Central Government Servant was conducted, by an Inspector of Sindh Anti-Corruption Police. The Federal Court took the view that even if it could be established that the investigation by the Sindh Anti-Corruption Inspector was irregular the result would not be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the proceedings of the trial.

8. In Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66 at page 87, it was held that the adjudication of the guilt of innocence of an accused person had no nexus with the manner in which he was produced for trial before a Court of competent jurisdiction. Therefore, if the evidence placed before the Court brings home an offence to the accused person, he would be properly convicted notwithstanding any illegality in the mode by which he was brought to trial. A somewhat similar view was taken in the cases of the State v. Muhammad Hussain PLD 1968 SC 265, M.S.K. Ibrat v. The Commander-in-Chief Royal Pakistan Navy and others PLD 1956 SC (Pak.) 264, H.N. Rishbud and another v. State of Delhi AIR 1955 SC 196 and Major E.G. Barsay v. Sate of Bombay AIR 1961 SC 1762. However, in an appropriate case, a Police Officer who is not authorized by law, to register and investigate a particular case or category of cases, can be proceeded against for misconduct, abuse of power and dereliction of duty notwithstanding that a trial of a case before a Court of law may not be quashed on such a ground.

9. The High Court after re-appraisal of the entire evidence on record affirmed the judgment of the trial Court. The impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court. Even otherwise, this is not a fit case for grant of leave to appeal.

10. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. N.H.Q./S-37/S Leave refused.