P L D 1968 Lahore 101 (PLP)

SHAUKAT ALI, J.‑

Two Criminal Appeals, viz. No. 173 of 1964 and No. 301 of 1966, were put up before me for hearing and disposal, the first by Ghulam Abbas accused, a Patwari, against his conviction under section 5(2) of the Prevention of Corruption Act, 1947 and sentence of one year's rigorous imprisonment and of fine of Rs. 200 or in default of payment of fine to further undergo rigorous imprisonment for four months, and the second by Rasul Bux accused, another Patwari, challenging his conviction under section 161, P. P. C., read with section 5(2) of the Prevention of Corruption Act, 1947, and sentence of one and half years' rigorous imprisonment with a fine of Rs. 300 or in default of payment of fine to further undergo rigorous imprisonment for six months. Both the appellants were convicted and sentenced by Khan Muhammad Jan Khan, Special Judge, Peshawar; by separate orders. The trial of Ghulam Abbas was held at Jhelum and that of Rasul Bux at Gujrat. While the allegations against Ghulam Abbas appellant was that he had received Rs. 50 from Mst. Ehsan Ilahi Begum P. W. as an illegal gratification for supplying her with a copy of jamabandi. Rasul Bux appellant was alleged to have accepted a bribe of Rs. 40 from Ata Muhammad P. W., for the supply of Copies of certain fards of the revenue record of his landed property. In either case a trap was laid to apprehend the accused red‑handed in the commission of the offence; in either case the services of a Magistrate were requisitioned to witness the commission of the offence; in either case the Magistrate recorded a report detailing the events that took place in his presence and the manner in which the trap was laid. In the course of the hearing of the two appeals by me important questions of law were raised, and I requested my Lord the Chief Justice to constitute a Full Bench. The questions posed by me to be answered by the Full Bench were: (1) As to when does the investigation commence in a case under the Anti‑Corruption Act, and (2) Whether a statement made by an accused person recorded by a Magistrate after the raid and the recovery of the tainted money from him without observing the formalities of section 164 of the Cr. P. Code is admissible or not?

2. In the first instance, the learned Chief Justice nominated a Division Bench comprising my learned brother, Mr. Justice M. Jamil Asghar, J., and myself, but as the arguments on the reference progressed, he at our request constituted a Full Bench, by including my learned brother Mr. Justice Sajjad Ahmad.

3. Before the Full Bench, the following subsidiary points were raised by the learned counsel for the appellant and Mr. G. Safdar Shah, Additional Advocate‑General, the con sideration of which was thought necessary for the correct decision of the main points referred to the Full Bench. (1) that if as contended for the State by the learned Additional Advocate‑General, investigation does not technically start in such cases till after the completion of the raid and the handing over of the raiding report by the Magistrate to the police, what is the nature and character of the role of the police officers and the Magistrate accompanying them as regards the actions taken by them, viz. the recording of the report for the demand of the illegal gratification, laying of the trap etc. as a prelude to the detection of the actual commission of the crime of receiving illegal gratification by an accused person; (2) that if these actions performed by the police officers and the Magistrate do not have the sanction of law, what is the effect of these unauthorised acts on the trial of an accused person ? and (3) that if the investigation in the case for an offence under the Anti‑Corruption Act commences after the commission of the crime by an accused person of receiving illegal gratifica tion, when does the investigation commence, in respect of a report duly made that he has made a demand and has agreed to accept illegal gratification which by itself is a cognizable offence under section 161 of the Penal Code as also under section 5 of the Anti‑Corruption Act.

4. In order fully to appreciate the points involve, I think it necessary to state here the widely practised method of laying traps by which the offences under the Prevention of Corruption Act are detected and the public servants are brought to Courts to stand their trials. On receipt of an information or a complaint, oral or written, that a public servant has demanded or agreed to accept bribe, a police officer makes an application to the District Magistrate or the Additional District Magistrate, stating that the public servant has demanded or agreed to accept bribe and requesting that a Magistrate be nominated to supervise the trap. The Magistrate nominated by the District Magistrate or the Additional District Magistrate, records the statement of the informant, searches his person, and after noting down the numbers of the currency notes/or initialing them, or putting any mark of identification on a valuable thing, as the case may be, gives them or it to the complainant for passing them or it on to the public servant complained against. The Magistrate then organises a raiding party and proceeds to lay the trap, and to witness the transaction. After the tainted money or the valuable thing is passed on to the public servant, the Magistrate disclosing his identity to the public servant searches his person or the things laying around him. If the tainted money or the valuable thing is recovered, the Magistrate prepares a recovery memo. records the statement of the public servant and the witnesses and prepares a report embodying all that he had done and all that had happened in his presence. Thereafter, the Magistrate hands over the tainted money or the valuable thing recovered as also all the documents prepared by him to a police officer accompanying him as a member of the raiding party. If the Magistrate is of the First Class, he grants permission to investigate the offence, and the police officer, on the basis of the proceedings conducted by the Magistrate lodges a report at the police station concerned.

5. For determining as to when does the investigation commence in a case under the Prevention of Corruption Act, it is essential to know the stage at which the offence of criminal misconduct as defined by section 5(l) of the Prevention of Corruption Act is committed. For the purposes of this reference only clauses (a) and (b) of subsection (1) of section 5 of that Act are relevant, which are reproduced as under:‑-

5. Criminal misconduct.‑(1) A public servant is said to commit the offence of criminal misconduct:‑ (a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, and gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or (b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; . . . . ."

6. A cursory glance at the language in which the above two clauses are couched will show that the moment a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, in the circumstances con templated by clause (b) of subsection (1) of section 5 of the Prevention of Corruption Act, the offence of criminal misconduct is committed. But subsection (2) of section 5 of the Prevention of Corruption Act, which in essence corresponds to section 161 of the Pakistan Penal Code, not only makes punishable the actual commission of the offence of criminal misconduct but even an attempt at its commission.

7. By virtue of section 3 of the Prevention of Corruption Act, as it stands after its amendment by the Criminal Law Amendment Act, 1953, offences under sections 161, 162, 163, 164, 165 and 165‑A of the Pakistan Penal Code have been made cognizable for the purposes of the Code of Criminal Procedure, section 5 of which ordains that all offences under the Pakistan Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure and all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences. Now section 5‑A of the Prevention of Corruption Act lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1898, no officer below the rank of Inspector of Police shall investigate any offence punishable under sections 161, 162,163, 164 165 and 165‑A, P. P. C. or any offence punishable under section 5 of the Prevention of Corruption Act, without an order of a Magistrate of the First Class or make any arrest therefore without a warrant. Apart from this, there is no other provision in the Prevention of Corruption Act, 1947, as to investigation. Even the Pakistan Special Police Ordinance, 1948, deals only with the constitution, powers, duties, privileges, liabilities, superintendence and administration of the special police, and nothing is provided therein as regards the manner of investi gation. It would seem, therefore, that nothing having been provided in the Prevention of Corruption Act as to the manner of investigation, the provisions of the Code of Criminal Procedure in respect of investigation are applicable to the offences under sections 161, 162, 163, 164, 165 and 165‑A P. P. C., and to the offence of criminal misconduct under the Prevention of Corruption Act.

8. At this stage it would be relevant to refer to Chapter XIV of the Code of Criminal Procedure which deals with information to the police and their powers to investigate cognizable and non‑cognizable offences. Section 154 of the Code lays down that every information relating to the commis sion of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. Subsection (1) of section 156 of the Code confers powers on an officer in charge of a police station to investigate any cognizable case, in the local area within the limits of such station without the order of a Magistrate, but this provision so far as the cases in hand are concerned, is to be read subject to the provision of section 5‑A of the Prevention of Corruption Act, 1947 and Pakistan Special Police Ordinance, 1948. The succeeding section i.e , section 157, says that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. No doubt section 157 of the Code requires the police officer to proceed to the spot to investigate, but this does not mean that investigation under Chapter XIV does not begin until the police officer reaches the spot. Under proviso (a) to subsection (1) of section 157, when the case is not serious, investigation need not be at the spot as distinguished from proviso (b), in which case investi gation may be dispensed with altogether. A police officer may investigate without information: [(section 157(1)]; or he may not investigate at all: [(section 157(I)(b)]. Moreover, "investigation" includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf: [(See section 4 subsection (1) clause (1)]. "Collection of evidence" means collection of material to be used as evidence. Section 160 of the Code, which is the next relevant section, empowers a police officer making an invesLiratio11, to & require by an order in writing the attendance before himself of any person, being within the limits of his own or an adjoining police‑station, who from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required. Subsection (3) of section 161 provides for the reducing into writing by the police officer of the statement made to him by any person in the course of an examination, which statement can be used in the manner provided under section 162, Cr. P. Code.

9. On the analysis of the various relevant provisions of Chapter XIV of the Code of Criminal Procedure in the preceding paragraphs and after hearing the arguments addressed at the bar, I am of the opinion 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 commission of the offence, and takes steps towards the entertainment of the offence and the culprit thereof, then investigation will be deemed to have commenced. It is often seen that a police officer in corruption case neglect to record an information of a cagnizable offence and instead takes the informant to the Magistrate nominated by the appropriate authority for his statement being recorded and thereafter a trap is laid. By adopting this method the police officer violates the mandatory provisions of Chapter XIV of Criminal Procedure Code and section 23 of the Police Act 1861.

10. For my view that an investigation by the police commences with the first step taken by a police officer towards the entertainment of the offence and the culprit thereof, I derive support from the judgment which was cited at the bar by Mr. M. B. Zaman, Advocate, who appeared as an amicus curaie and Mian Mushtaq Ahmad, learned counsel for the appellants and reported as Emperor v. Kh. Nazir Ahmad (AI R1945PC18) wherein it was held as under:‑ " . . . . But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are under taken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal P. C., when directing that a police officer, who has reason to suspect from information or otherwise that an offence which be is empowered to investigate under section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view . . . . ." In H. N. Rishbud and another v. State of Delhi (1955 Cr. L J 526) the learned Judges had dealt with the scheme of the Code with regard to investigation. The following extract from the judgment would be relevant: "Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertain ment 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 Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge‑sheet under section 173." In State of Uttar Pardesh v. Bhagwant Kishore Joshi (AIR 1964 S C 221) the learned Judges of the Supreme Court approved the above‑cited judgment with the following observations:‑ ". . . Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognizable offence. Section 156 thereof authorizes such an officer to investigate any cognizable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 prescribes the procedure in the matter of such an investigation which can be initiated either on information or otherwise . . . . . . " In Emperor v. Tribhuvandas Brijbhukendas (I L R 26 Bom. 533) in a D. B. case Mr. Justice Fulton of the Bombay High Court made the following observations:‑

"The definition of the term "investigation" in section 4 is not exhaustive. It would, I think, be placing an undue limitation on the simple meaning of words to bold that a Police Inspector who had got information that persons were carrying on wagering business, and having satisfied himself had obtained a warrant under section 6, Gambling Act and effected the arrest of the accused and the seizure of their books, had not taken any part in the investigation into the offence in respect of which the accused was being prosecuted."

11. The learned Additional Advocate‑General has stoutly contended that in a case of corruption where a trap is laid to apprehend the accused red‑handed, it cannot be said that the investigation had started at any time earlier than the time, at which the Magistrate hands over the relevant papers to the police officer concerned and directs him to proceed in the matter. In other words, according to the learned Additional Advocate General, the investigation in a case of corruption takes its start immediately after the Magistrate hands over the relevant papers to the police officer concerned and directs him to proceed in the matter. In support of his aforesaid contention, the learned Additional Advocate‑General relied on The Crown v. Nur Alam (P L D 1955 Lah. 666), Ghulam Nabi v. State (P L D 1957 Lah. 251) and Hayat Ali v. The State (P L D 1957 Lah. 562). The first of these authorities has absolutely no relevancy to the point in issue, because in that case the effect of non‑compliance with proviso to section 3 of the Prevention of Corruption Act, as it stood before the amendment of section 3 of that Act by the Criminal Law Amendment Act, 1953, was examined. In that case, the investigation had been conducted by a Sub‑Inspector of Police without authorisation from a First Class Magistrate, and it was held by the learned Judges of the Division Bench that non‑compliance with prove to section 3 of the Prevention of Corruption Act, would not vitiate the trial inasmuch as it was an irregularity falling within the ambit of the curative provisions of section 537 of the Code of Criminal Procedure. In the case of Ghulam Nabi v. The State which is a Single Bench judgment, the learned Judge delivered himself of the following:‑-- "In a case of corruption, where a trap is laid to apprehend the accused red‑handed, it cannot be said that the investigation had started at any time earlier than the handing of the report and the documents by the Magistrate to the police, and as such any statement made by the accused, whether it amounted to a confession or not, was not made during the course of investigation and was, therefore, not hit by sections 162 and 164 of the Code of Criminal Procedure." The third case Hayat Ali v. The State is another Single Bench judgment, and the learned Judge who decided that case observed as follows:‑-- "That although the offence of accepting bribe is completed when the recovery of the tainted money is effected from the accused, so long as the Magistrate remains in charge of the raid proceedings and does not hand over the relevant papers to the police officer concerned and direct him to proceed in the matter, and investigation in the case has till then not started."

12. After giving my conscious consideration to the question posed I may venture to say that in a case of corruption, after the police officer concerned receives information regarding the commission of an offence under sections 161, 162, 163, 164, 165 or 165‑A, P. P. C. or of an offence of criminal misconduct as defined in section 5(1) of the Prevention of Corruption Act and, on the basis of that information, has reason to suspect the commission of such an offence, the investigation commences in the case, and any step taken by that police officer, subsequent to the receipt of aforesaid information and the entertainment of suspicion regarding the commission of the offence and the culprit thereof, will be a step in the course of investigation. With all respect to the learned Judges who have held otherwise, I do not for the foregoing reasons think that in a case of corruption, where a trap is laid to apprehend the accused red‑handed, the handing of the report and the documents pre pared by the Magistrate supervising the raid to the police officer accompanying him as a member of the raiding party and the giving of direction by the former to the latter are not conditions L precedent to the commencement of investigation in a corruption case. In most of the trap cases, investigation is completed at the spot, because search of the person of the accused, recovery of the tainted money or the valuable thing, preparation of the recovery memo., and preparation of the raid report are all done at the spot.

13. Therefore, the answer to the first question is, that an investigation by the police commences with the first step taken by the police officer towards the entertainment of the offence and the culprit thereof.

14. I now address myself to the second question referred to the Full Bench viz., whether the statement of a public servant recorded by a Magistrate after the raid and the recovery of the tainted money from him, without observing the formalities of section 164 of the Criminal Procedure Code, is admissible in evidence or not. It must not be forgotten that a Magistrate will not cease to be a Magistrate because he is doing something at the request of a police officer. In a trap case, he examines the decoy witness on oath. After the tainted money or the valuable thing is passed on to the public servant by the decoy witness, the Magistrate goes to the public servant and discloses to him his identity as a Magistrate. He then searches the person of the public servant or the things lying around him, and if the tainted money or the valuable thing is recovered, he prepares the recovery memo. orders the arrest of the public servant and then writes a raid report, which is then handed over by him to the police officer concerned. All these things are day him in his official capacity as a Magistrate and in a course of the investigation. It is, therefore his duty in law to record the statement of the public servant, if be makes any, under section 164 in the manner provided for under section 364 of the Code of Criminal Procedure, because an unqualified admission of his fault by a public servant, can be characterised as a judicial confession of an accused person and treated as evidence against him only if that statement of the public servant is recorded according to the law contained in sections 164 and 364, Cr. P. Code. Non‑observance of the formalities of sections 164 and 364 of the Code of Criminal Procedure in such a case will render the statement of the accused person inadmissible in evidence.

15. It has been argued by the learned Additional Advocate General that even if it is conceded that a statement of an accused person recorded by a Magistrate at the time of the raid without observing the formalities of sections 164 and 364 of the Code of Criminal procedure, is inadmissible in evidence, such a statement if it contains admission of his guilt by the public servant can still be used against him as an extra‑judicial confession. It was further urged that if a casual confession to an outsider made without any warning, such as the extra judicial confession to a chance by‑stander, can be proved then why cannot the confession to the Magistrate be equally proved? Is not a Magistrate as worthy of credence as a chance by‑stander who hears an extra judicial confession? The question, however, is whether a confessional statement made to a Magistrate can be treated as extra judicial confession; in other words, can the confessional statement be considered to have been made to an ordinary individual, such as a private citizen? My answer to this is "No", because it is a well settled principle of law that where a power is given to a particular person to do a certain thing in certain way, the thing must be done in that way or not at all; other methods of performance are necessarily forbidden. These questions were dealt at length by their Lordships of the Privy Council in Nazir Ahmad v. King Emperor (AIR 1936 PC 253). The relevant observations of their Lordships may be reproduced with advantage. Their Lordships observed as follows: "For the appellant it was said that the Magistrate was in a case very different from that of a private person and that his case and his powers were dealt with and delimited by the Criminal Procedure Code, and that if this special Act dealing with the special subject‑matter now in question set a limit to the powers of the Magistrate, the general Act could not be called in aid so as to allow him to do something which he was unable to do, or was expressly or impliedly forbidden to do, by the Special Act. The argument was that there was to be found by necessary implication in the Criminal Procedure Code a prohibition of that which was here attempted to be done; in other words, that the Magistrate must proceed under section 164, or not at all." Their Lordships further go onto observe: It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if, for example, it were that of a self‑accusing mad man or for any other reason the Magistrate thought it to be incredible or useless for the purpose of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts. Taylor v. Taylor (1875) 1 Ch. D 426 at p. 431 (a) and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to section 164." Their Lordships have also observed as follows:‑-- "On the matter of construction sections 164 and 364 must be looked at and construed together and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves. Upon the construction adopted by the Crown, the only effect of section 164 is to allow evidence to be put in a form in which it can prove itself under sections 74 and 80, Evidence Act. Their Lordships are satisfied that the scope and extent of the section is far other than this, and that it is a section conferring powers on Magistrates and delimiting them. It is also to be observed that, if the construction contended for by the Crown be correct, all the precaution and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle. Any Magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The range of magisterial confessions would be so enlarged by this process that the provisions of section 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case. As a matter of good sense, the position of accused persons and the position of the magistracy are both to be considered. An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the magistracy, it is for obvious reasons most undesirable that Magistrates and Judges should be in the position of witnesses in so far as it can be avoided. Sometimes it cannot be avoided, as under section 533, but where matter can be made of record and therefore admissible as such, there are the strongest reasons of policy for supposing that the Legislature designed that it should be made available in that form and no other. In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers under section 162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under section

164. In the result they would indeed be relegated to the position of the ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. Their Lordships, are, however, clearly of opinion that this unfortunate position cannot in future arise because, in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by Magistrate when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case." In view of the decision of the Privy Council cited above, I am clear in my mind that, though an extra‑judicial confession to an ordinary citizen (other than a police officer) can be proved; such a confession cannot be proved at all if made to a Magistrate unless the provisions of section 164, Cr. P. Code; have been complied with.

16. The principle appears to be that where the Legislature has specially provided in clear and couched terms how a confession is to be made to a Magistrate, and thereby delimiting the powers of he Magistrate, it is not open to the prosecution to recourse to some other method, namely, that an extra judicial confession being made to the Magistrate. Therefore, I hold that if the Magistrate supervises the raid and records the statement of an accused person at the time of the raid without complying with the requirements of sections 164 and 364; he cannot be permitted in law to enter the witness‑box as an ordinary citizen and depose as to the extra‑judicial confession of the accused person at the time of his trial.

17. Mr. M. A. Zullah, who has also appeared as an amicus curaie, has contended that law permits an accused person to rely on his statement, which is exculpatory in nature, as it would be relevant under section 8, illustration (e) of the Evidence Act, because according to him, the only bar created by the provisions of section 25 of the Evidence Act is that an inculpatory part of the statement of an accused recorded without J observing the formalities of sections 164 and 364 of the Code of Criminal Procedure cannot be used as evidence against him. I have no cavil with this proposition of law. I may with advantage refer to the following observation in Hasil v. Emperor (A I R 1942 Lah. 37) where Young, C. J. and Beckett, J. observed as follows:

"The prohibition contained in section 25 can be treated as applying only to confessions which are to be proved as against the accused, that is, in support of the prosecution case, and cannot apply to statements on which the accused himself wishes to rely in connection either with his conviction or his sentence. When two versions of the same incident are being put forward, it is often of the greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible opportunity and therefore an accused person should not be deprived of the right to make use of such a statement merely because to a certain extent it goes against him." Therefore, the answer to the second question is that the statement by an accused of the commission of an offence of criminal misconduct, on being halted by the Magistrate is not admissible in evidence, as the same was not recorded by the Magistrate in the manner prescribed by sections 164 and 364 of the Criminal Procedure Code. Before parting with this judgment, I must profess for the valuable assistance rendered by counsel appearing in this case. M. JAMIL ASGHAR, J.

I agree. SAJJAD AHMAD, J.‑

I have read with great interest the judgment proposed to be delivered by my learned brother Shaukat Ali, J. in which my learned brother M. Jamil Asghar, J. has concurred. In view of the importance of the questions referred to the Full Bench, I am adding this short note to state my own views.

2. The point of time when investigation starts in a case under the Prevention of Corruption Act (11 of 1947) (hereinafter referred to as the Act) is no different from that of any other case of a cognizable offence, depending on when the investigation is taken in hand by the police officer or by any person (other than a Magistrate) authorised by a Magistrate in this behalf, i.e., when the first step in the proceedings under the Code of Criminal Procedure (hereinafter to be referred to as the Code) is initiated for the collection of evidence or material in proof of the commission of the offence. The word "investigation" as defined in section 4 (1) of the Code, which is not exhaustive, covers every step taken in this behalf, beginning from the entertainment of the offence for investigation of its facts and circumstances and ending with the final police report for sub mission to the Magistrate empowered to take cognizance of the offence as provided by section 173 of the Code. The police do not need to launch the investigation on the receipt or recording of an information report, but they can of their own motion undertake an investigation on informal intelligence of a credible nature leading to the belief that a cognizable offence has been committed.

3. The question as to when has the investigation commenced in a given case requires to be answered in the context of that case as to when was the first step taken for investigation of the suspected crime. As rightly observed by my brothers, the demand for bribe and agreement to accept it or attempt to obtain it is as much an offence under section 162 of the Penal Code and section 5(2) of the Act as the actual receipt of the bribe and the investigation for the former may start without reference to the latter or the investigation of both may merge into each other in a continued process. The question, however, in each case would be when did the investigation really start and for what offence, or if it is a case of joint investigation of two allied offences, which can be split up, when had the investigation ended in the one and started in the other?

4. The two separate offences of attempt to obtain bribe and actually receiving it are so closely linked together that there is always a risk of over‑lapping between them and in their investigation. It is open to the police officer entrusted with investigation of the alleged offence of a demand for a bribe made by a public servant to proceed from whatever stage he chooses. If he suspects from the information received or otherwise that a demand has been made by a public servant, thus falling within the mischief of section 161 or section 5(2) and decides on investigating it, he shall forthwith send a report of it to the Magistrate empowered to take cognizance of such offence as required by section 157 (1) of the Code. However, he may decide not to take the information seriously and may not enter on its investigation, ignoring the demand for illegal gratification allegedly made, and yet taking a clue from it, he may organize a trap to tempt the public servant to fall into it and in which the latter may or may not fall, despite the demand made previously. And if he does fall, he would be committing the offence of accepting the illegal gratification and investigation for that crime, if there need be any, will start from that point. But if the suspicion about the demand for illegal gratification has taken root in the mind of the police officer, he may register a case and proceed to investigate it and the trap may be laid with the assistance of the Magistrate to test the veracity of the allegation made against the public servant concerned, and the success of the trap may constitute supporting evidence of the demand having been previously made and at the same time it may disclose a complete separate offence of the "acceptance of the bribe". In this view of the matter my answer to the first question would be that investigation for an offence under the Act starts when the first step is taken towards investigation qua the offence actually investigated. If the investigation has been initiated for the offence of the demand of illegal gratification, it starts as soon, as the police officer takes a step to ascertain the facts and circumstances of the demand having been made for illegal gratification, and the circumstances connected with the laying of the trap would be steps in that investigation to test the veracity of the allegation about the demand. But if the allegation about the demand has been ignored and no step has been taken for ascertainment of facts and circumstances for its detection and the trap is laid to build up the separate offence of "actual receipt of the bribe", even though its genesis lies in the allegation regarding the illegal demand, the investigation qua that offence will start after the commission of that offence. Investigation follows the suspected commission of the offence and does not precede it. The propriety of tempting public servants to commit offences of accepting bribery by laying traps against them has been seriously questioned in some cases and not without justification, It was submitted very pertinently by Mr. Saleem, appearing as amicus curiae that under section 23 of the Police Act, police officers have to prevent crimes and this encouragement of crimes, which in fact is aiding their commission by the device of laying traps is a direct infraction of that obligation and is punishable as an offence under section 29 of the same Act. Criminal liability is determined by mens rea and there being no legal bar to the device of laying traps to catch delinquent public servants, it cannot be said that it suffers from illegality. Public servants have to keep their integrity absolutely pure and beyond reproach and the laying of traps can be resorted to in the case of those public servants who give an occasion for it by clouding their reputation, However, public servants must have the utmost protection allowed to them by law to save them from unnecessary harassment. It is for this reason that trap evidence has to be scrutinized with the greatest vigilance and all steps taken during investigation have to be watched with the full rigour of the technicalities of law.

5. The next question about the admissibility of a statement made by an accused person and recorded by the Magistrate after the raid and, after the recovery of the tainted money from him, without observing the formalities of section 164 of the Code is now easy to answer. The question has many facests. In the first place, it will have to be determined for what purpose and for what offence the statement is being used. If the recovery of the tainted money has been made in pursuance of the investigation for the offence of the demand for illegal gratification, the statement of the accused person explaining the recovery, whether it amounts to a confession or not, must be taken as a statement made in the course of the investigation qua that offence. If that statement is being used qua that offence as a confessional statement, it must conform to the requirements of sections 164 and 364 of the Code. If it is a statement falling short of a o confession, it has to be recorded under section 164(2) of the Code in such manner as prescribed for recording of evidence in Court which in the opinion of the recording Magistrate is best fitted for the circumstances of the case. If, however, the confessional statement is to be used in respect of the completed offence of accepting the bribe, it is obvious that the offence not having been committed until then no investigation having started qua that offence till the time of the actual recovery of the tainted money, and the statement of the accused in respect thereof recorded by a Magistrate would not be treated as a confession recorded during the investigation of that crime and would not attract the provisions of section 164 of the Code, if it is sought to be proved in proof of that offence. I consider that investigation in such cases would start after handing over of the papers by the Magistrate to the police for purposes of investigation. It may be that the pursuant investigation may be a mere paper formality and nothing more needs to be done. In Ghulam Nabi's case Mr. Justice A. R. Changez followed the Division Bench view in Crown v. Nur Alam (P L D 1955 Lah. 667) wherein his Lordship Mr. Justice S. A. Rahman, the then Chief Justice, in a succinct paragraph has commented the admissibility of such a statement qua the offence for which it is sought to be used which may here be quoted:

"I do not think Mr. Zulla is right in saying that the police s, had started investigation of the offence revealed by the complaint of Muhammad Sadiq which had merely mentioned A' the demand of the respondent for illegal gratification and an arrangement for its payment having been agreed to. The offence for which the respondent was prosecuted was not the one evidenced by the complaint made to the Deputy Superintendent Police by Muhammad Sadiq but the offence which was actually completed by the passing of the illegal gratification at the time of the raid. It could only be after the money had passed that investigation could in any sense be said to have started qua that offence." I would summarise my answer to this question by saying that the admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so. I may venture to say here that the Privy Council case of Nazir Ahmad had proceeded on its own facts. That was a case of a verbal confession which was sought to be proved by the Magistrate who had accompanied the accused in that case pointing out different spots connected with the dacoity allegedly committed by him and their Lordships held that in the absence of a recorded confession as required by the provisions of sections 164 and 364 of the Code, oral evidence of such a confession was out of question. It was in that context that the judicial pronounce ment was made by them, which is now a legal homily, that if a thing is to be done in a particular manner, it must be done in that manner or not at all, other methods of performance being fobidden. If a confession is recorded without the observance of the formalities of section 164 it need not be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confession statement having been made, making it admissible if the error or non‑compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on the merits. This provision was not at all relevant in the case of Nazir Ahmad as no confession at all was recorded in that case and, therefore, it was not referred to.

6. One other point needs to be stated. The statement of an accusc‑3 person in a case under the Act has two aspects. The accused charged with an offence under the Act can also appear as a witness for himself and he may rely on a statement which had been made by him during the investigation in support of his own version of the case as the earliest statement which he had given on the subject. It may be admissible for that purpose at his instance as evidence to clear his own conduct. However, if it is a confessional statement recorded during investigation by a Magistrate without complying with the provisions of section 164, it may be of no use to the prosecution if it is sought to be proved against the accused person qua the offence which was under investigation at that time if such a user prejudices the accused person in his defence. A.H. Reference answered.