' Haji Gulzar Ahmed faced trial under section 420, P.P.C. Read with section 5(2) of the Prevention of Corruption Act and the pleaded not guilty to the charge. After recording he prosecution evidence, statement of the accused and his defence the accused was acquitted on the ground that the investigation of the case was conducted by an unauthorised person. The order of acquittal has been challenged through the instant appeal under section 417, Cr.P.C.
2. There is no denying the fact that the investigation of this case was taken up by Sub-Inspector Muhammad Zaman without the permission of the Magistrate of the First Class. Section 5-A of the Prevention of Corruption Act, 1947 (hereinafter called the Act) read as under:- ' S. 5-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no officer below the rank of Inspector of Police shall investigate any offence punishable under any of the sections of the Pakistan Penal Code (Act XLV of 1860), mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the First Class or make any arrest therefore, without a warrant.
It is evident that this provision relating to investigation is mandatory inasmuch as an officer below the rank of Inspector of Police is not competent to investigate the offences specified therein without an order of a Magistrate of the First Class or to arrest without a warrant. The learned Special Judge in recording the acquittal of the respondent relied on Abdul Manan v. The State PLD 1958 Kar. 643 wherein it is observed that where the whole of the investigation from beginning to end in case under section 5(2) Prevention of Corruption Act (II of 1947) was conducted unauthorisedly by police officer below the rank of Superintendent of Police, conviction had in trial on a report submitted after such an investigation, was set aside and the case left open for fresh investigation according to law. The learned counsel for the respondent referred nie to Feroz-ud-Din v. The Crown PLD 1954 Bal. 1 wherein such an irregularity which had allowed a police officer to investigate a case when he was not competent to do so had occasioned a failure of justice the appeal was accepted on this ground besides others.
3. The learned counsel for the appellant, on the other hand, placed reliance on a number of authorities for the view that investigation by an unauthorised police officer was a mere irregularity and would not vitiate the trial nor would affect the jurisdiction of the trial Court. There are two prominent cases from the Indian Jurisdiction and these are Keshava Nand Srivastava v. The State AIR 1952 All 122 and H.N. Rishbud and anoher v. State of Delhi AIR 1955 SC 196. In the first case it was remarked that the investigation by an officer below the rank of Deputy Superintendent of Police, However undesirable, is a mere irregularity and not an illegality vitiating the investigation and the complaint based upon it. In the second case it was observed that a defect or illegality in investigation, however serious, has no direct bearing on the competence of the procedure relating to cognizance or trial.
4. A similar question came up for consideration in The Crown v. Nur Alam PLD 1955 Lah. 667 where the accused was acquitted by the Sessions Court 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 as it stood then. It was held that even if the investigation had not been in conformity with the legal provisions of the proviso to section 3 of the Prevention of Corruption Act, it did not necessarily follow that the subsequent trial was vitiated. In Abdul Noor v. The State PLD 1958 Dacca 145 the Division Bench held that an investigation by police officer not authorised under section 5-A of the Prevention of Corruption Act would not vitiate the trial. In the Crown v. Mehar Ali PLD 1956 FC 106 the investigation in a case under section 161, P.P.C. Was held by an Inspector of Sind Anti- Corruption Police instead of by the Special Police Establishment and it was held that it was by no means clear that even if it could be established that the investigation by the former was irregular, the result would be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the proceedings in the trial. Sheikh Abdul Majid v. The State PLD 1958 Kar. 86 laid down that a mere irregularity in investigation did not affect the legality of proceedings before the Magistrate. In Walizar and another v. The State PLD 1960 Kai-. 204 the case-law on the subject was reviewed and it was inter alia held that section 5-A of the Prevention of Corruption Act related only to investigation and it did not bear on the question of jurisdiction or the power of a Special Judge to take cognizance.
5. The observation made in Jainullah v. The State PLD 1961 Dacca 565 was that infringement of section 5-A of the Prevention of Corruption Act was a mere irregularity within the ambit of section 537 Criminal Procedure Code and unless it had caused actual prejudice to the accused it could not be held to have vitiated the trial. The trial Court was to decide the case on the face of the evidence before it and the mere fact that evidence was collected by an agency not authorised by law to do so could not deprive the Court of its inherent jurisdiction to try it. The view expressed in Mst. Sadan v. The State PLD 1965 B J 12 was that investigation in non-cognizable offence by police officer not authorised to do so would neither prevent the Court from taking cognizance of the offence on report submitted by such officer nor renders subsequent trial illegal. A number of precedent cases were in his context referred to. In Umar Din v. Muhammad Hussain PLD 1980 Kar.
418. It was held by a Division Bench that irregular investigation neither prevent the Court from taking cognizance of offence on report submitted by a police officer not competent to investigate nor renders subsequent trial illegal.
6Both the Single Judge decisions of Feroz-ud-Din and Abdul Manan referred to on behalf of the accused-respondent were brought to the notice of their Lordships in The State v. Muhammad Hussain PLD 1968 SC 265 where a similar question was raised but it was not decided inasmuch as the appeal by the State was held incompetent. Mention, however, was made with approval of Abdul Nur v. The State, Walizar and another v. The State besides a "weighty opinion delivered in India by the Supreme Court Published as H.N. Rishbud and another v. State. It was observed that:- ' We mention of these cases, although we leave the point undecided, for the reason 'that we are approving this judgment for publication, and it is of importance that the Courts in general should be better informed of the State of the law of this point than was the learned Single Judge in the High Court who relied only on two Single Judge decisions, namely, Feroz-ud-Din V. The Crown PLD 1954 Bal. 1 and Abdul Manan v. The State PLD 1958 Kar.
643.
7 The case of Feroz-ud-Din was cited before a Division Bench in Crown v. Nur Alam and it was observed at page 676 that "in that case, however, the learned Judicial Commissioner also found that actual prejudice had been caused to the accused because of the conduct of the investigation by a Sub-Inspector who was personally actuated by malice against the accused. "In the instant case it was not complained before me that any prejudice had been caused to the accused- respondent on account of an investigation conducted by an unauthorised person who bore a grudge against the accused-respondent. The concensus of opinion appears to be that violation of the provisions of section 5-A of the Act would not vitiate the trial unless prejudice is caused to the accused.
8 It is pertinent to note that the objection with regard to the violation of section 5-A of the Act was not raised during the trial when the prosecution evidence, the statement of the accused- respondent and his defence were recorded. It was at the arguments stage that the attention of the learned Special Judge was drawn to the violation of the aforesaid privision of law. It would be profitable to refer to the following observation made in H.N. Rishbud's case in paragraph 9 of the judgment: ' We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.
' In the next paragraph it is remarked that:- ' It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.
In the instant case the respondent did not at a sufficiently early stage of the trial bring to the notice of the special Judge that the investigation was conducted by an unauthorised police officer, namely, Sub-Inspector Muhammad Zeman and it had occasioned prejudice to him. The objection was raised with an inordinate delay at the conclusion of the trial and the learned Special Judge acted in haste in passing the impugned order which is not sustainable in the eye of law.
' In the result, I would accept the appeal, set aside the acquittal of the respondent and sent back the case to the learned Special Judge with the direction that after hearing the learned counsel for the parties it be decided in accordance with law. The respondent is absent and the order of his bail is recalled. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.