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Criminal Appeal No. 577 of 1961, decided on 21st February 1963.

Pakistan Criminal Law (Amendment) Act (XL of 1958),

S. 6(4)‑Words "any offence" ‑ Mean any offence specified in Schedule to Act ‑ Special Judge has no jurisdiction to convict accused of any offence under Penal Code, 1860, irrespective of whether the offence be so specified or not.

Abdul Barkat Sharnamot and others v. The State P L D 1959 Dacca 617 rel.

Abu Hossain Sarker for Appellant.

Syed Mohsin Ali for the State.

The appellant Jobed Ali was tried by Mr. M. N. Huda, Assistant Sessions Judge and ex‑officio, Special Judge, Rangpur under section 162 of the Pakistan Penal Code on the following charge:----

The charge against you is that on 29‑12‑58 last you realised Rs. 31 at Gohat near Kamarjani lust from Tayenuddin, Abdur Rahman and Safed Ali etc. the Beparis of paddy to bribe the police and Ansars. You had realised this bribe to afford opportunities to them to purchase paddy and so you have committed an offence under section 162, P. P. C.

2. In his examination under section 342 of the Code of Criminal Procedure also he was questioned only about the offence under section 162 of the Penal Code. There was neither any accusation or examination under section 342, Criminal Procedure Code with regard to any offence under section 384 of the Penal Code.

3. The learned Special Judge however convicted the appel lant under section 384 of the Penal Code and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 50 in default to suffer rigorous imprisonment for one month more acquitting him of the charge under section 162 of the Penal Code as framed.

4. The prosecution case was : There is a hat called kartimari hat within Rowmari Police Station of Kurigram. The Beparis of the area often purchase paddy from Kamarjani within Gaibandah Sub‑Division and sell the same at kartimari hat. On one occasion there was scarcity of paddy in kartimari hat and the public complained to the President of the Union about the same. The President called the Beparis and they gave out that they were unable to sell paddy at control rate at the hat because they had to pay bribe at Kamarjani hat for purchasing paddy. On some occasion, it is alleged, the appellant demanded rupee one per maund from these Beparis for allowing them to purchase paddy at Kamarjani. It is also alleged that the appellant collected this amount to satisfy the police men in allowing the Beparis to purchase paddy at Kamarjani which is within Gaibandah for taking the same within Kurigram area. The President of the Union on hearing the grievances sent a letter to the O/C, E. P. R. Camp. On receipt of the letter Abdul Gani Naik of the Border Out Post proceeded to Kamarjani hat along with some sepoys to ascertain if the allegation of bribery was true, some Beparis also followed the E. P. R. party in a separate boat. They all reached Gohat and kept their boat there. Naik Abdul Gani took some currency notes from the Beparis and noted down their numbers the notes being three five‑rupee notes and five one‑rupee notes. After noting down the notes he returned these to the Beparis with the instruction that if anybody demanded bribe at the time of purchase of the paddy at Kamarjani they should give him from the said notes as well. According to this arrangement the Beparis went to the Kamarjani hat and purchased paddy there and when the appellant and his party men demanded bribe at rupee one per maund, they stated that the money would be paid at Gohat at the time of loading the paddy in boats. The appellant and his party and a police of the Gaibandah Police Station followed the Beparis up to Gohat and the Beparis paid Rs. 31 to the appellant, which included the previously numbered notes. Just after the payment, there was a quarrel over the distribution of the money amongst the appellant and his men. The appellant insisted that the money would be distributed after returning back to the hat while his men insisted that it should be distributed in Gohat. Just at that time Naik Abdul Gani who saw the payment of money by Taimuddin to the appellant Jobed Ali, sounded a whistle and the appellant and his party‑men were surrounded by the E. P. R. sepoys. Thereafter Naik Abdul Gani called some Dewanis to witness the search of the appellant and his party‑men. Certain notes including the numbered notes were seized. The ‑appellant and his companions along with one police of the Gaibandah Police Station were arrested by the E. P. R. Naik Abdul Gani and taken to Chilmari Thana where Naik Abdul Gani submitted an ejahar to O/C, Chilmari who entered the fact in his G. D. entry. He then sent the F. I. R. and the Alamats to O/C, Gaibandab, the place of occurrence being within the juris diction of Gaibandah.

5. The defence was plea of not guilty and further that Ali Ahmad sepoy of the E. P. R. was once assaulted by the appellant and a tea‑stall owner of Kamarjani hat as the sepoy rebuked the Tea Stall owner. Further defence suggestion was that Sabed Ali was once beaten by appellant and that appellant did some paddy business at Kamarjani hat and that the Beparis avoided payment of price of paddy purchased from the appellant Jobed Ali. It was further pleaded that the case was a false case resulting from enmity.

6. Twelve witnesses were examined for the prosecution and none for the defence.

7. On these facts the learned Special Judge came to hold that though the realisation of Rs. 3 by the appellant Jabed Ali was proved, the case under section 162 of the Penal Code was not made out as the appellant had not done anything to induce any police officer to do or forebear from doing any official act or to get anything done favourable to the Beparis in the matter and as the evidence did not justify the finding that actually any Gaibandah Police had any duty on that particular day in the hat and as the evidence was not clear enough to indicate that the appellant raised money from the Beparis as a reward for getting anything done by a public servant by corrupt or illegal means.

8. But at the same time the learned Special Judge was of the opinion that the evidence and circumstances as available indicated that the appellant was in the habit of realising money from the purchasers of paddy of the Kartimari area from Kamarjani hat "by false pretext and show of threat" and that in the instant case the appellant illegally realised money from the Beparis by holding out a threat, namely, that they would not be allowed to purchase and take away the paddy from the Kamarjani hat. In that view, he convicted the appellant Jabed Ali under section 384 of the Penal Code.

9. Mr. Abu Hussain Sarker, the learned Advocate appear ing for the appellant has contended that the learned Special Judge had no jurisdiction to convict the appellant under section 384 of the Penal Code as the said offence has not been included within the Schedule mentioned in the Pakistan Criminal Law Amend ment Act, 1948 as amended up‑to‑date being Amending Act XL of 1958 (hereinafter called as the Act). Mr. Sarker has placed section 5 (1) and section 5 (2) of the Act as under:

Section 5 (1); "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge." Section 5 (2) ; "The appropriate Government may, from time to time, by notification in the official Gazette, include in the schedule such other offences as it deems necessary or expedient."

The amendments made from time to time do not indicate that section 384 of the Penal Code has been included in the Schedule. The learned Advocate for the State Mr. Syed Mohsin Ali on his part has also not shown any notification including section 384 of the Penal Code in the Schedule, but has referred to subsection (4) of section 6 of the Amending Act XL of 1958 which reads as under :‑

"Notwithstanding anything contained in this Act, the Special Judge may convict the accused of any offence which from the fact admitted or proved he appears to have committed."

10. Mr. Syed Mohsin Ali, the learned Advocate for the State has contended that by virtue of this provision the learned Special Judge has jurisdiction to convict the accused of any offence of the Penal Code other than offences as specified in the Schedule which from the facts admitted or proved, he appears to have committed. To throw light on the subject, Mr. Mohsin has referred to two decisions of this Court in the cases of Azizul Islam Chowdhury v. The State (9 D L R 226) and Abdul Barkat Sharnamot and others v. The State (P L 1) 1959 Dacca 617).

11. Mr. Sarker has relied on the decision of Abdul Barkat Sharnamot and others v. The State in which it was held as under:

"The provisions of section 6 (4) of the Pakistan Criminal Law (Amendment) Act, 1958 do not say that the Special Judge has jurisdiction to convict the accused of any offence of the Pakistan Penal Code other than the offences specified in the Schedule to the Act which, from the facts admitted or proved, he appears to have committed. The provisions of the said sub section do mean that the Special Judge may convict the accused of any offence specified in the Schedule to the Act which from the facts admitted or proved he appears to have committed although he was charged under some other offence specified in the said Schedule."

Mr. Sarker has urged that there being no charge under section 384 of the Penal Code and the appellant having no notice of such offences the conviction thereunder was void.

12. The decision in the case of Abdul Barkat supports the stand taken by Mr. Sarker. In the other decision placed by Mr. Mohsin, namely, that Azizul Islam Chowdhury v. The State which is an earlier decision of this Court it was held as under :‑----

"The case against the appellant was one under section 161 of the P. P. Code, and that section finds place in clause (a) of Schedule 2 of Pakistan Criminal Law (Amendment) Act, 1948. In trying the case under section 161 and having regard to subsection (7) of section 4, Pakistan Criminal Law (Amendment) Act, 1948 the accused in fit cases could be tried for an offence under section 384, Pakistan Penal Code, even though the later section does not find a place in Schedule 1 or Schedule 2 of the Criminal Law Amendment Act."

13. It is true that in the latter decision it was observed that in trying the case under section 161 of the Pakistan Criminal Law Amendment Act, 1948 the accused in fit cases could be tried for any other offence which is not included in Schedule 1 or 2. But at the same time the learned Judges found and held that as the accused was not asked anything as to any offence under section 384 of the Penal Code as made out the conviction thereunder of the accused could not be maintained. The learned Judges, however, having found that the learned Special Judge was wrong in acquitting the accused of the offence under section 161 of the Penal Code, converted and altered the conviction under section 384 of the Penal Code to one under section 161 of the Code.

14. In our present case, I have heard both sides on the merits also and I, do not find that any case had been made out under section 162 of the Penal Code so that the earlier 9 D L R 226 decision for whatever it is worth is not attracted in the present case. The observation in that case that the accused could be tried under section 384 of the Penal Code in fit cases, remained a mere observation which no doubt is in conflict with the latter decision reported in 11 D L R 173.

15. In the facts and circumstances of the present case, and the case of Abdul Barkat Sharnamot and others v. The State is attracted and I accept that decision as binding upon me. I, there fore, hold that the learned Special Judge had no jurisdiction to convict the appellant under section 384 of the Penal Code. The only alternative, therefore, is to order retrial of the appellant under section 384 of the Penal Code by a Magistrate of the First Class. To avoid prejudicing the retrial, I refrain from saying anything on merits as to this offence.

16. In the result, the appeal is allowed, the conviction and sentence set aside and I direct that the accused be retried according to law on a charge under section 384 of the Penal Code by a Magistrate, First Class. The appellant Jobed Ali who is on bail will continue to remain so until retrial.

S. Q./K. B. A. Appeal allowed.

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