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Criminal Appeal No. 4 of 1955, decided on 22nd Novem ber 1955.

(On appeal from the judgment and order of the Chief Court of Sind at Karachi, dated the 2nd November 1953, in Criminal Revision Application No. 142 of 1953).

Ss. 3 and 4‑Do not oust jurisdiction of ordinary Criminal Courts.

There is no indication, in section 3 of the Pakistan Criminal Law (Amendment) Act (XIX of 1948) as it stood in 1952 before the amending Act of 1953, of exclusiveness i.e., of any special provision worded so as to exclude the jurisdiction of the ordinary Courts. The provisions of section 4 cannot serve to sustain any conclusion that, as they stood in 1952, they were intended to give a Special Judge appointed under the Pakistan Criminal Law (Amendment) Act, 1948, exclusive jurisdiction in relation to offences, committed by Central Government servants, of the kind specified in the schedule to the Act.

Trial held before; the amending Act of 1953, by a Special Magistrate under section 161, P. P C. was therefore not without jurisdiction.

Whether affects jurisdiction of Magistrate or validity of proceedings in Court.

The investigation in a case under section 161, P. P. C. committed by a Central Government servant was held by an Inspector of the Sind Anti‑Corruption Police instead of, as maintained by the defence, by the Special Police Establishment. It was objected that the trial was bad for that reason.

Held, that it is by no means clear that even if it could be established that the investigation by the Sind Anti‑Corrup tion Inspector 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.

Ss. 2 (2) and 3‑Investigation held by a Sind Anti Corruption Inspector into an offence under S. 161, P. P. C. committed by a Central Government employee, held, regular.

Appeal against by Crown before Federal Court‑Intention of Crown to test the correctness of view of acquitting Court (Chief Court of Sind) on point of law, and not to get a conviction ‑Respondent, nevertheless convicted.

Jamil Hussain Rizvi, Advocate, Federal Court, instructed by Zahir Abbas Attorney for Appellant.

Nemo for Respondent.

Under Order XLIX, rule 1, F. C. R. 1950: Faiyaz Ali, Advocate‑General of Pakistan.

Date of hearing: 22nd November 1955.

This appeal by special leave has been brought by the Crown with the express object of testing the correctness of the view taken by the Sind Chief Court, on the basis of which the respondent Mehar Ali, who had been convicted under section 161 of the Pakistan Penal Code by a Special Magistrate, and whose appeal had been successful in the Court of Appeal (the Sessions Judge) on the point of sentence only, was acquitted in revision. The appeal has not been defended. In the application seeking leave to appeal, it was stated that "it is not the intention of the petitioner (i.e., the Crown) to have the respondent convicted or a re‑trial ordered in the case, but the intention is only to have the correct law declared in the case".

Mehar Ali was sent up for trial after investigation conducted by the Anti‑Corruption Inspector, Nawab Shah Linder section 161, P. P. C. or section 5 of the Prevention of Corruption Act, 1947. Proper sanction to his prosecution under the latter provision of law was obtained, but the trial Court framed a charge under section 161, P. P. C. only, and nothing further need therefore be said on the point of sanc tion. Mehar Ali was Chief Booking Clerk at Pad Idan Railway Station in the Province of Sind. He was clearly a public servant, employed in connection with the affairs of the Central Government. The trial appears to have been held under tile ordinary law, viz., the Criminal Procedure Code, before a Magistrate appointed under section 12 of that Code and although the applicability of the Sind Prevention of Bribery and Corruption Act XXIV of 1950 has been canvassed in the case, it does not appear that any of the special pro visions of that Act, i.e. provisions which pro tanto abrogate the corresponding provisions in the Criminal Procedure Code came into play, except perhaps the provision in section 3 laying down that an offence under section 161, P. P. C. shall he cognizable, and that no Police Officer should investigate any such offence who is below the rank .of Inspector of Polite. The remaining novel provisions of the Sind Act become applicable upon the appointment under section 5 of one or more Special Judges, but it is clear that the present case was decided on the 29th May 1952, about three months before the first appointment of a Special Judge which is dated 27th august 1952. Documents have been placed before the Court which go to show that the investigation was conducted by an officer of the rank of Inspector belonging to the Anti‑Corruption Police Establishment of the then Sind Government.

The facts in the case are of an extremely simple nature. Evidence was produced to show that the accused had demanded and had received from one Bashir a sum of Rs. 10 for providing him with a goods wagon. The payment was made within the hearing and sight of certain persons who had been appointed by the Police for the particular purpose. The trial Court and the Court of Session in appeal have considered the defence set up by the accused, viz.; that the marked currency note was given to him in repayment of a debt due to him by Bashir, in relation to all the evidence on the record and have rejected it. 1.7 the petition which was made to the High Court for revision of the Sessions Judge's order, the findings of fact by these Courts were not challenged.

No technical objection either to the competence of the investigation by a particular Police Officer or to the jurisdic tion of the Court, was raised in the trial Court. In the appeal before the Sessions Court, it was urged that the Sind Preven tion of Bribery and Corruption Act, 1950, was not applicable to servants of the Central Government, but was in terms confined in its application to servants of the Provincial Government, and consequently the investigation of the case by an Inspector without the previous sanction of the Magistrate, was irregular. The foundation of this contention is not easy to ascertain, and as will be seen presently, there, was no irregu larity committed in this regard. It will be sufficient to say that the Session Judge held that the Sind Act of 1950 did not relate only to servants of the Provincial Government but was applicable also to servants of the Central Government, and therefore the investigation by the Sind Anti‑Corruption Inspector was valid and proper. Mehar Ali moved the Sind Chief Court in revision and by his application repeated the contention that the investigation by the Sind Anti‑Corruption Inspector was incompetent, adding that the offence of bribery committed by ,a Central Government Servant should be exclusively investigated by the Pakistan Special Police Establishment under the Special Ordinance VIII of 1948, and further that offences of bribery committed by persons connected with the Central Government are exclusively triable by Special Judges appointed under section 4 of the Pakistan Criminal Law (Amendment) Act, 1948. It was conceded by the learned Advocate‑General of the Province, before the Division Bench of the Sind Chief Court, that the investigation by the Sind Anti‑Corruption Inspector was bad, and that the trial of the applicant by the Special Magistrate, Hyderabad, was without jurisdiction. The learned Judges, based their conclusions to the same effect upon, these admissions, giving their own reasons in addition. It is not necessary to state these reasons here.

It has been pointed out already that the case does not appear to attract any of the exclusive provisions of the Sind Prevention of Bribery and Corruption Act, 1950, and therefore it should properly be regarded as a case under the Criminal Procedure Code before a Special Magistrate. The question remains, however, as to the effect upon the jurisdiction derived from the Criminal Procedure Code, of the novel provisions of the Criminal Law (Amendment) Act, 1948, which also makes specific provision for the trial for acts of corruption and peculation, of public servants.

On reference to section 3, subsection (1) of the Pakistan Criminal Law (Amendment) Act as it stood in 1952 we can find in this statement of the jurisdiction of Special Judges appointed under that Act no indication of exclusiveness i.e. of any special provision worded so as to exclude the jurisdic tion of the ordinary Courts. By section 4 the cases which a Special Judge was competent to try were such as might be sent to him for trial by the Pakistan Special Police Establish ment or such as may be transferred to him by the Central Government. These provisions cannot, in our opinion, serve to sustain any conclusion that; as they stood in 1952, they were intended to give a Special Judge appointed under the Pakistan Criminal Law (Amendment) Act, 1948, exclusive jurisdiction in relation to offences, committed by Central Government servants, of the kind specified in the schedule to the Act. To emphasize this conclusion we need only point to the differential wording adopted when the Act was amended in 1953. The amended section 3 (1) provided that offences specified in the First Schedule and offences notified by the appropriate Government in the Official Gazette may and offences specified in the Second Schedule shall be tried by Special Judges under this Act, and by section 4, the jurisdic tion of a Special Judge was expressed in terms of territorial limits to be defined by the appropriate Government, and in respect of offences, was made contingent upon receiving "a complaint of facts which constituted such offence or upon it report in writing of such facts made by any police officer". The Schedule in the original Act was divided into two parts, and the second part included offences punishable under section 161, among other sections. There need be no doubt in view of the adoption in the amendment of clear language intended to make the jurisdiction of the Special Judge in respect of offences of the relevant kind exclusive, that the language originally used, which on the face of it does not lead to any such conclusion, was not intended to confer upon, the Special Judge any jurisdiction in derogation of those already existing under the ordinary law.

As regards the competency of the investigation, it is b5 no means clear that even if it could be established that the investigation by the Sind Anti‑Corruption Inspector 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. But the question does not appear to us to arise, as we find that the investigation was conducted under the provisions of the Pakistan Special Police Establish ment Ordinance, 1948, with whose provisions there was proper compliance at every stage. Under section 3 of this Ordinance, the Central Government has specified offences under section 161, P. P. C. as offences "committed in connection with matters concerning Central and Provincial Governments which are to be investigated by the Pakistan Special Police Establish ment". The reference to "Provincial Governments" in this section may be specially noted, as indicating a flaw in the argument accepted by the learned Judges of the Sind Chief Court. The provisions of this Ordinance are not confined to offences committed in connection with matters concerning only the Central Government. By subsection (2) of section 2 of the Ordinance it is provided that members of the Special Police Establishment shall have powers throughout Pakistan equivalent to those enjoyed within their jurisdiction by corres ponding Police Officers of a Province, and there is a proviso which enables the Central Government by order to direct that similar powers in respect of such offences or persons concerned in such offences, as are connected with matters concerning the Central Government, may be exercised by a Police Officer not belonging to the Pakistan Special Police Establishment. In the exercise of this power, by an order dated the 18th of May 1950, the Government of Pakistan directed that Police Officers not belonging to the Pakistan Special Police Establishment should be competent to investi gate offences of the relevant kind (i.e., offences committed by Central Government Servants) provided that the consent of the Inspector‑General of the Special Police Establishment or of any Circle Officer of that Establishment should have been obtained in writing. In the present case, it has been shown to our satisfaction that on the 28th September 1950, Mr. Niaz Ahmad Khan, Superintendent of Police of the Special Poll' cc Establishment, Karachi, empowered the Anti‑Corruption Inspector, Nawabshah, to take up the investigation of the case against Mehar Ali. It thus becomes clear that the investiga tion by the Sind Anti‑Corruption Inspector was conducted under proper authority and was therefore entirely competent. The result is that it becomes necessary to reverse the order made by the Sind Chief Court. In the circumstances of the case, the necessary conclusion must be that the older of conviction recorded by the Courts below the Sind Chief Court must be restored, and in this respect it is not possible to give effect to the intention of the Crown expressed in the petition for special leave, that the respondent need not be convicted. We find, however, that tie Sessions Judge in appeal had reduced the sentence of imprisonment awarded to Mehar Ali by the trial Court to the period of imprisonment already undergone and had remitted the fine imposed upon him. It will be, in our view, sufficient to direct that the order of the Sessions Judge should be restored in consequence of the setting aside of the order of acquittal at in allowing the present appeal we make a direction accordingly.

A.H. Order of acquittal set aside.

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