Sunday, 13 March 2016

Defect of investigation of case did not vitiate trial

PLJ 2004 SC 819
[Appellate Jurisdiction]
STATE-Respondent Crl. P. No. 112-L of 2004, decided on 30.3.2004.
(On appeal from judgment dated 15.1.2004 of the Lahore High Court, Multan Bench, passed in Criminal Appeal No. 212 of 1994)
(i)  Constitution of Pakistan, 1973--
—Art. 185(3)--Leave to appeal-Grant of-Prior registration and investigation of case-Prejudice-FIR got registered u/S. 161 PPC and 5(2) Prevention of Corruption Act, 1947-Petitioner apprehended with tainted currency notes-Investigation transferred from Provincial Anti-Corruption Est. to FIA-Fresh FIR registered by FIA and same was being investigated and after submission of challan-Trial Court found petitioner guilty of charge and sentenced him—High Court in appeal affirmed judgment-Hence this petition-Objection-Prejudice-Held: Objection against registration and initial Investigation of case by PACE, suffice it so that no prejudice caused to petitioner on account of any defect or irregularity in course of investigation-FIA registered a fresh FIR conducted investigation and submit challan-Defect of investigation of case, if any, did not affect the jurisdiction of trial Court.
[P. 821] A
(ii) Criminal Procedure Code, 1898 (V of 1898)--
—S. 537-Irregularities in Police Investigation-Effect of-Held: Irregularity in police investigation is curable u/S. 537 and docs not vitiate trial.
[P. 821] B
Rana Muhammad Arshad Khan, ASC for Petitioners.
Nemo for State.
Date of hearing: 30.3.2004

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 anapplication to the Anti-Corruption Establishment, Vehari stating thereinthat 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 asillegal gratification in connection with the installation of electric meter.However, the matter was settled at Rs. 200/-. A case FIR No. 14 dated8.8.1984 'was registered against the petitioner at the Police Station Anti-Corruption Establishment, Vehari, under the provisions of Section 161 PPG
read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafterreferred 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 organisation of the Federal Government,
therefore,  the  investigation   of the  case  was  transferred  to  FederalInvestigation Agency, Mailsi, District Vehari, where a fresh F.I.R. No. 168dated 4.10.1984 was registered and investigated against the petitioner underSection 161 P.P.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 PPC and 5(2) of
the Act. He was convicted and sentenced to 2 years R.I with a fine ofRs. 500/- and in default of payment of fine to further undergo R.I for twomonths. 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 andsentence which was dismissed by a learned Single Judge of the Lahore High
Court, Multan Bench, by the impugned judgment dated 15.1.2004. Hencethis 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 initialinvestigation  of the  criminal  case against the petitioner who was anemployee of WAPDA which had been set up by the Federal Government.The complainant Ahmed Yar, P.W-6, had also sworn an affidavit therebyexonerating the petitioner. It was further contended that P.W-4 Liaqat Ali,LDC, WAPDA, had produced the relevant record which showed that thepetitioner was not officially concerned in the matter. The learned counselsubmitted 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 thetainted 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 somelength. We have also gone through the available record. We find that thetrial Court as well as the High Court believed the prosecution evidence quathe petitioner. Rana Irshad Ali, PW-5 was the raiding Magistrate. He clearly
stated that the petitioner was holding the tainted currency notes in his handwhich he threw on the ground when he introduced himself to him. The same
were recovered vide memo Ex.P.W-5/C. He also proved the raid reportEx.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 thetrial of the case. The bribe money could not be produced before the trialCourt as the same was found (vide Ex.P-D, E and F) to have beenmisappropriated    by    the    then   Moharrar    of   the    Anti    CorruptionEstablishment, Vehari. The case against the petitioner was duly establishedby the prosecution.
6.      As   regards  the   objection   against  registration   and  initialinvestigation of the case by the Provincial Anti-Corruption Establishment,suffice it to say that no prejudice was shown to have been caused to thepetitioner   on   account   of  any   defect   or   irregularity   in   the   course   ofinvestigation.   We,   however,   find   that   on   its   transfer,   the   FederalInvestigation Agency registered a fresh F.I.R., conducted investigation andsubmitted final report under Section 173 Cr.P.C. for taking cognizance of theoffence by the trial Court. The defect of investigation of a case, if any, did notaffect the jurisdiction of the trial Court to try the case in the absence of anymiscarriage of justice. Ordinarily, an irregularity in Police Investigation iscurable under Section 537 Cr.P.C. and does not vitiate the trial. A similarquestion was considered by the Superior Courts in a series of cases. In M.Abdul   Latif  vs.   G.M.   Paracha   and   others   (1981   SCMR   1101),   an
investigation into the offences of corruption by a Police Officer attached tothe Anti Smuggling (Rice and Paddy Mobile Team) was not interfered with.
7.           In another case titled The Crown vs. Mehr Ali (PLD 1956 F.C.106), the investigation for an offence under Section 161 PPC against aCentral 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 Inspectorwas irregular, the result would not be to deprive the Special Magistrate ofjurisdiction or otherwise to affect the validity of the proceedings of the trial.
8.           In Ch. ManzoorElahi vs. Federation of Pakistan etc. (PLD 1975S.C. 66 at page 87), it was held that the adjudication of the guilt or innocenceof an accused person had no nexus with the manner in which he wasproduced 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 some what similar view was taken
                        in the cases of the State versus Muhammad Hussain (PLD 1968 S.C. 265),
                               M.S.K Ibrat versus The Commander-in-Chief Royal Pakistan Navy and
                       others (PLD 1956 S.C. (Pak) 264), H.N Rishbud and another versus State of
                               Delhi (AIR 1955 S.C. 196) and Major E.G Barsay versus State of Bombay]       (AIR 1961 S.C. 1762). However) in an appropriate case, a Police Officer who
                               is not authorised 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 recordaffirmed the judgment of the trial Court. The impugned judgment does notsuffer 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 thispetition which is dismissed and leave to appeal is refused accordingly.
(A.A.K.)                                                                          Petition dismissed.

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