GHULAM MUHAMMAD ALLAH WARAYO PANHWAR Versus STATE
The petitioner, a Junior Store Keeper, was convicted by the Special Judge for misappropriating petrol, an offence under Section 409, Pakistan Penal Code 1860 and Section 5(2), Prevention of Corruption Act 1947. The prosecution established a significant shortage of petrol through register entries and physical verification. The petitioner's defense, citing evaporation, unauthorized withdrawals by officers, and meter errors, was rejected by the trial court and the High Court, which found a substantial unexplained shortage even after accounting for these claims. Before the Supreme Court, the petitioner raised a new argument challenging the validity of the investigation on the grounds that it was conducted by an Inspector rather than a Deputy Superintendent of Police. The Supreme Court held that an objection regarding the validity of an investigation must be raised at the earliest opportunity. As the point was not raised in lower courts and the petitioner failed to demonstrate any prejudice resulting from the investigation, the Court refused to entertain the plea and dismissed the petition.
- Can an objection regarding the validity of an investigation be raised for the first time before the Supreme Court?
- Does an investigation conducted by an officer of a lower rank than required by statute automatically vitiate a trial in the absence of prejudice?
- Section 409, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
ORDER
1. HAMOODUR RAHMAN, C. J.‑ The petitioner, who was at the relevant time a Junior Store Keeper in the office of the Agricultural Engineer, Khairpur, was tried along with his Senior Store Keeper for offences under section 40‑>, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947, by the Special Judge, Sukkur, who found the petitioner guilty and sentenced him to suffer rigorous imprisonment for nine months and also to pay a fine of Rs. 3,900 for alleged misappropriation of petrol. The co‑accused, namely, the Senior Store Keeper was acquitted. A third person, namely, Miskeen, a truck driver, who is absconding, was not tried along with these two.
2. The charge against the petitioner was that he had between the 7th of December 1962 and the 15th of January 1963 misappropriated 1309 gallons of petrol worth its. 3,900 from the Store of the Workshop. The com parison of the entries in the register maintained by the petitioner and the actual physical verification of the petrol in the oil tank clearly disclosed the shortage alleged by the prosecution.
3. The petitioner admitted that he was employed as the Junior Store Keeper and that he had made the entries in the register which were correct, but he pleaded that when he took over charge from his predecessor he received 476 gallons less. 1n addition to this, he claimed that 20 gallons had evaporated from the tank and about 150 gallons had been taken away by the Officers without any indent. According to him, the meter also was recording in excess and thus there was an excess reading of something like 70 gallons. The trial Court found that even if full allowance was given to him for all this, namely, the short delivery of 476 gallons and evaporation at the rate of even then there was a shortage of 700 to 800 gallons. In addition to this, if 210 gallons supposed to have been taken away by Officers and wrongly recorded by the meter are allowed, even then there is a shortage of about 500 gallons. The petitioner had no explanation for this. His conviction, therefore, appears to us to be based on overwhelming evidence. The High Court also took the same view.
4. The learned counsel appearing in support of this petition, however, now wants to take a new point, namely, that the investigation in this case was not held, by a D. S. P., but only by an Inspector, and, therefore, the entire proceeding was bad and the whole trial was vitiated. In support of this contention he has relied upon a ruling from a foreign jurisdiction, namely. H. N. Rshband and another v. State (AIR 1955 S C 196).
5. Unfortunately, this point was not taken in any of the Courts below but is now sought to be taken for the first time in this Court. We are afraid this cannot be allowed now. The objection to the validity of the investigation should have been taken at the earliest possible opportunity and since this was not done and the petitioner is not in a position to show :4 that he has in any way been prejudiced by the investigation conducted by an Inspector we do not consider this to be a sufficient ground for the grant of leave. No other point has been urged. This petition is, accordingly, dismissed.
6. Petition dismissed.