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Criminal Appeal No. 511 of 1965, decided on 21st February Abdul 1968.
------S. 24‑Confession‑Extra judicial confession corroborated by oral evidence of unimpeachable character ‑ Not inadmissible but forms basis of conviction.
S. 21, clause ninth‑Public servant ‑Accountant of Agricultural Development Bank‑Held, a "public servant" within cl. ninth of S. 21.
Salimullah Khan 6 D L R 527 and Mujibur Rahman 14 D L R 785 distinguished.
Ss. 161 & 165‑A‑Illegal gratification‑Liability of bribe‑giver‑Heinousness of act lies in intention of bribe‑giver to corrupt public servant‑Mere fact that public servant concerned does not happen to possess power to do required favour or service‑Does not make act of bribe‑giver less heinous.
Venkatarama Naidu v. Emperor A I R 1929 Mad. 756 and Emperor v. Phulsing A I R 1941 Lah. 276 ref.
M. A. Rab for Appellant.
Abdur Rasheed for the State.
Dates of hearing : 12th and 13th February 1968.
The appellant Abdul Khalek Patwary alias Abdul Khalek Patwary has been convicted under section 165‑A of the Pakistan Penal Code and sentenced to rigorous imprisonment for six months and a fine of Rs. 50 or in default to R. I. for 15 days more by Mr. A. S. Chowdhury, Assistant Sessions Judge and Ex officio Special Judge, 2nd Court, Comilla. This appeal is directed against the aforesaid order of conviction and sentence passed on the appellant by the learned Special Judge.
The prosecution case is as follows:‑On 26th May 1965, the appellant went to the Agricultural Development Bank of Pakistan, Comilla, in connection with his application for loan. The application and the bond were scrutinised by the Accountant of Bank F. Rahman, the complainant. On scrutiny he found the bond of the surety defective inasmuch as the name of Muslim Patwary in the said bond was written and then it was penned through and the name of Abdul Khalek Patwary was substituted. According to practice that cancellation required authentication of the surety Muslim Ali Patwary but there was no such authentica tion. The complainant raised objection over this. The appellant thereupon kept a sum of Rs. 5 inside the drawer of the complainant's table and requested him to consider his case and made payment on that day. The complainant immediately caught hold of the accused and went to the Manager's room with him and the money to gether with the relevant papers and reported the matter to the Manager. The Appellant confessed his guilt before the Manager, Assistant Manager and others and begged for pardon. He was however went to police with a written complaint whereupon the present case was started against him, After investigation, charge‑sheet was submitted against the appellant by the Assistant Inspector, D, A, B. on 30th June 1965.
Defence contended that the appellant was implicated in this case out of grudge.
Prosecution examined altogether 7 witnesses to prove their case, P. W. 1, F. Rahman, Accountant of the Agricultural Development Bank of Pakistan, Comilla has testified to the entire facts of the case as set out above. It has transpired in his evidence that he found the surety‑bond defective inasmuch as the name of Muslim Ali Patwary which had been written therein was cancelled and that of Abdul Khaleque Patwari was substituted in its place but there was no authentication. Thereafter the appellant kept a five‑rupee currency note, Exh. 1 in the drawer of his table which was half open requesting him to make payment of the loan to him. Thereupon the witness caught hold of the appellant and took him to the Manager with the papers and the currency note. He reported the matter to the Manager Md, Mohsin and Assistant Manager Syed Waliullah. On being interrogated regarding the occurrence the appellant confessed his guilt before them and sought pardon. P. W. 2 Abdul Bari, armed guard of the Bank P. W. 3 Abdul Wadud, a clerk of the Bank. P. W. 4 Md. Mohsin and P. W. 5 Syed Waliullah are witnesses of corroboration P. W. 2 has testified that the appellant Abdul Khalek Patwari placed one five‑rupee currency note in the drawer of the complainant's and thereupon the complainant caught his hand and took him to the Manager with the money and the relevant papers. When the Manager asked questions to the appellant he pleaded guilty and sought for mercy. P. W. 3 has deposed to the raising of objection by the Accountant to payment of the loan due to defect in the surety‑bond and offering of some money to the Accountant by the appellant whereupon be was caught by the Accountant and taken to the Manager with money. P. Ws. 4 and 5 have testified that the Accountant F. Rahman, took the appellant with one five‑rupee currency note to P. W. 4 the Manager and reported that that appellant gave him the amount as bribe, and on being asked about this the appellant confessed his guilt.
P. W. 6 Adhir Chandra Syam, a Sub‑Inspector of Police is a formal witness. P. W. 7 Farid Khan, Assistant Inspector D. A. B. Comilla investigated the case and eventually submitted charge‑sheet on 30th June 1965.
Mr. M. A. Rab, the learned Advocate for the appellant, has argued that the conviction has been based op the uncorroborated testimony of P. W. 1 the Accountant, and that the alleged confession cannot be considered against the appellant inasmuch as the exact language of it has not been reproduced. I am unable to uphold this contention. It is not correct to say that the testimony of P. W. 1 F. Rahman, the Accountant is the sole basis of the conviction of the appellant. It has already been stated that he has received substantial corroboration from P. W. 2 an armed guard of the Bank, and P. W. 3, a clerk of the Bank, P. W. 3 was an eye‑witness to the payment and his veracity could not be shaken in any way. Nothing has been elicited from him in cross‑examination in favour of the defence. So far as P. W. 3 is concerned, he stated in the cross‑examination that he saw money in the hand of the appellant and did not see in which place the money was actually kept. He further stated that the Accountant called him after the money was offered and the accused was caught and that he did not go to the Manager. It is thus doubtful as to whether be actually witnessed the payment of the money as bribe to the Accountant, but his testimony read as a whole furnishes circumstantial evidence of corroboration. Further corroboration is available from P. Ws. 4 and 5, the manager and the Assistant Manager of the Bank respectively. They are respon sible Officers and there is no earthly reason why they would perjure themselves in order to falsely implicate the appellant, who was a stranger to them. The evidence of these witnesses not only shows that the complainant took the appellant to the Manager with the live‑rupee note Exh. 1 together with the papers of the case and reported to him in presence of the Assistant. Manager that the appellant placed the five‑rupee note in his drawer as bribe but is also to the effect that the latter confessed his guilt and sought for pardon. It appears from the evidence of P. W. 5 that the appellant said that he committed the offence and begged for mercy. It may well be taken that this is the language in which the appellant confessed his guilt. This is corroborated by the Manager P. W. 4. It is, therefore, clear that the convic tion has been based not on the uncorroborated testimony of F. W. I but on the basis of his testimony supported by P. Ws. 2. 4 and 5 and also P, W. 3 although he was not an eye‑witness to the payment.
The extra‑judicial confession made before the Manager and the Assistant Manager is not inadmissible and also forms the basis of the conviction, corroborated as it is, by oral evidence of an unimpeachable character.
The next contention of Mr. Rab is that P. W. 1 the Accountant of the Bank is not a Public servant and as such the trial by the special Judge under the provisions of the Criminal Law Amendment Act of 1948 is without jurisdiction. A "Public servant" is defined in section 21 of the Pakistan Penal Code. The words "Public servant" denote a person falling under any of the 11 clauses of the section. The only clauses relevant for our purpose arc the 9th and 10th clauses. The 9th clause runs as follows ;
"Every officer whose duty it is, as such Officer, to take, receive, keep or expend any property on behalf of the Govern ment or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government and every officer to the service or pay of the Government ox remunerated by fees or commission for the performance of any Public duty."
The 14th clause is in these terms:
"Every officer whose duty it is as such officer to take, receive, keep or expend any property to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district."
Mr. Rab has argued that the Accountant of the Bank does not come within the scope of the 9th clause inasmuch as he does not expend money on behalf of the Government, which is distinct from the Agricultural Development Bank, and that it does not also fall within the ambit of the 10th clause in view of authoritative decisions on this point. Reference has been made to the case of Salimullah Khan (6 D L R 527) and that of Mujibur Rahman (140 L R 785) in Salimullah Khan case a Division Bench of this Court held that the Cashier of a Central Co‑operative Bank is not a Public servant within the meaning of the expression "Public servant" as defined in section 21 of the Pakistan Penal Code and neither a Podder of a Hank nor a president of a Co‑operative society is a public servant within the meaning of the definition. In Mujibur Rahman's case it was held that the Podders of a Treasury are not Public servants within the meaning of the expression "public servant" as defined under Section 21. clause (10) of the Pakistan Penal Code. Both the cases are distinguishable inasmuch they appear to have been based on a decision of the Calcutta High Court reported in I L R 4 Cal. 376. In that case the accused teas Podder of a Bank who was dealing with money of Bank and not with Government money.
The ratio decidendi in Mujibur Rahman's case was that under Treasury Officer there was a Treasurer who was a public servant and under him a Head Dodder was commissioned who in his turn used to engage Assistant Podders on security. The Head Podder was responsible to the Treasurer and the Assistant Podders to the Head Podder.
Under subsection (2) of section 4 of the Agricultural Develop ment Bank Ordinance of 1961 not less than fifty‑one per cent, of the shares issued at any tuna shall be subscribed for by the Central Government, and the remaining shares, if any, shall be offered to the provincial Government, the co-operative societies and the members of the public: for subscription. Thus it is correct to say that the duty of the Accountant of the Agricultural Development Bank (sic) and not on behalf of the Government, which is distinct from the Bank. The fact, however, remains that be deals with Government money considering that major portion of the capital of the Hank is supplied by the Government. The Agricultural Development Bank is a Statutory body unlike the Central Co‑operative Bank and this makes the difference Mr. A. Rashid representing the State has rightly pointed out that the Accountant of the Bank is a public servant under the 9th clause of section 21 having regard to the fact that it is his duty to report on matter affecting the pecuniary interest of the Government because it is for him to check all applications for payment and to report on them. The Accountant of the Agricultural Development Bank is, therefore, a Public servant within the definition of 9th clause of section 21.
Another point convassed by the learned Advocate for the appellant is that after having made a report of his objection in writing, the Accountant P. W. 1 became functus officio inasmuch as his duty had been finished and that as such the appellant cannot be held guilty for offering bribe. In support of this contention reference has been made to the case of Venkatarama Naidu v. Emperor (A I R 1929 Mad. 756) wherein it was held that if a man in the vain hope of getting a public officer to reconsider a question as to which that public officer is functus officio offers a bribe as commits no offence whatever. A contrary view was, however, taken by the Lahore High Court in the case of Emperor v. Phulsing (A I R 1941 Lah. 276). It was held in that case that section 161 is not limited to official acts only, but applies even if a public servant is requested to render any service with another public servant. This section does not require that the public servant must in fact be in a position to do the Official Act, favour or service at the time. The heinousness of the act obviously lies in the intention of the bribe‑giver to corrupt the public servant and the act does not become any the less heinous merely because the public servant does not happen to possess the necessary power to do the required favour or service. Illustration (c) of section 161 is also quite clear. It runs thus:
"A, a public servant, induces Z erroneously to believe that A's influence with the Government has obtained a title for Z and thus induces Z to give money as a reward for this service. A has committed the offence defined in this section."
It cannot thus be said that the appellant committed no offence, because the Accountant had already submitted his objection to the payment of loan to him.
After proper appraisal of the evidence on record and consider ation of the points of law involved in the case as discussed above, I find no substance in this appeal.
The appeal is accordingly dismissed. The appellant is directed to surrender to his bail bond forthwith to serve out the remainder of the sentence and also to pay down the fine required of him.
Appeal dismissed.
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