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Criminal Appeal No. 228 of 1956, decided on 19^th March, 1956 from the order of Qadir Bakhsh, Special Judge at Lahore, dated 5th March 1956.

[as amended by Criminal Law Amendment Act (XXXV11 of 1953) 3, S. 5 (5)‑Sanction‑Not required in case of a person other than a public servant.

Subsection (5) of section 5, Pakistan Criminal Law Amend ment Act (XIX of 1948), as amended, renders sanction for prosecution necessary only if the occused is a public servant. This conclusion is supported by the words accurring later on viz., "such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act," which provide the key to the interpretation of the subsection, and which would have been wholly unnecessary, had it been intended that sanction was necessary even in case of accused other than a public servant.

The prosecution of a petition‑writer under section 163, P. P. C. without any sanction was, therefore, held in order.

Actual exercise o f personal influence with an official not necessary‑Promise of exercise enough.

It would be sufficient if the gratification is extracted on a promise of exercise of personal influence with an official, to bring the offence within the mischief of the section.

Proof of actual exercise of personal influence with an official is not necessary.

Ata‑ur‑Rahman for Appellant.

Shamim Husain Qadri for Advocate‑General, for Res pondent.

This is an appeal by Muhammad Shafi who has been convicted by a. Special Judge, Lahore, under section 163 of the P. P. C:, and sentenced to four months rigorous imprisonment together with a fine of Rs. 50 or in default of payment, to further rigorous imprisonment for one month.

The prosecution allegations against the appellant were that on the 27^th of August 1953, Allah Ditta (P. W. 3), a resident of Chak No. 263 in the Lyallpur District, wanted to obtain verification of his ownership rights according to the jamabandi records, from the Central Office maintained for the purpose in the Civil Secretariat. He approached the appellant who is a petition‑writer, for getting a petition written asking for verification of his claim. He agreed to pay him Rs.2 as writing charges. The appellant gave him to understand that he could get the work of verification of the records expedited through a friend who was in the Central Record Room pro vided the complainant paid him a sum of Rs. 10. The com plainant was tempted by the offer but wanted to make sure of his position. He went away and met Ali Ahmad, an acquaintance of his, with whom P. W. 8, Hasan Din was also present. He asked for their advice whether he should accept the petition‑writer's offer. Just then Ch. Muhammad Asghar Khadim (P. W. 6), a pleader, passed by. The difficulty was placed before him. The pleader advised him to contact the Anti‑Corruption Department. At the request of the complainant, the pleader noted down the number of the ten rupee currency note, Ex. P/1, produced before him, in his own note book, Ex. P. F/1. He gave his name and address to Allah Ditta for use when necessary. Allah Ditta then accompanied by Ali Ahmad and Hasan Din went to the appellant and got the application written by him. The appellant also obtained Rs. 5 for the Court fee stamps to be affixed on the petition besides charging Rs. 2 as the scribe of the petition. Allah Ditta on his demand passed a ten rupee currency note to him for getting his work done that very day. The appellant told them that they should return to him after a few hours.

Allah Ditta and his companions moved on to the gate of the Secretariat where a constable met them and they told him what had happened. The constable advised them to go to Rana Wali Muhammad, Sub‑Inspector, Anti‑Corruption Department (P. W. 1), who was seen standing at that time at the bus‑stop outside the Secretariat. Rana Wali Muhammad, on being approached, took down the statement of Allah Ditta. He then went with him to the appellant and after disclosing his identity, asked him if he had taken Rs. 10 for being given as bribe to someone in the Central Record Room. The appellant denied the receipt of any such money. On searching his person, among other amounts, the currency note, Exh. P. 1, was recovered and taken into possession. The application Exh. P. B, copy of certain Khasra numbers, Exh. P. B./1. copy of fard haqiyyat, Exh. P. C. and receipt of claim form No. 2854 concerning Allah Ditta complainant, were also taken from the possession of the appellant. This recovery took place in the presence of Ata Muhammad Election Qanungo (P. W. 5), Chaudhry Nabi Bakhsh (P. W. 7) and others. Rana Wali Muhammad then investigated the case and pro secuted the appellant.

It appears that originally Klan Mahabat Khan, Magistrate 1st Class, Lahore started proceedings in the case and eventually discharged the accused on the 8th of December 1953. However, the Pakistan Criminal Law Amendment Act (XIX of 1948) had come into force before the learned Magis trate had taken cognizance of the case. The proceedings taken by the learned Magistrate were therefore, vitiated in law and were without jurisdiction. The facts being brought to the notice of the Additional District Magistrate, Lahore, by the P. D. S. P, on the revisional side, the learned A. D. M. after hearing the parties set aside the discharge order and directed that the case be heard by the Special judge. It eventually came for trial to Mr. Qadir Bakhsh, Special Judge, Lahore, and was disposed of with the result mentioned above.

When questioned at the beginning of the trial, the appellant stated that he had written out the application, Exh. P. B., for Allah Ditta for a consideration of As. 0‑8‑0 as writing charges. Allah Ditta gave him a ten rupee currency note and demanded the balance. He had no change with him and, therefore, gave the note to a near by betel‑seller asking him to give him change. He then went to his petition‑writer's seat and engaged himself in other work. The Sub‑Inspector who was there in plain clothes, came up and ordered him to produce the currency note which Allah Ditta had passed to him. He took the note from the betel‑seller and returned it to Allah Ditta. After the conclusion of the prosecution case when the appellant was examined under section 342 of the Code of Criminal Procedure, he varied his original stand. He then alleged that he had produced the ten‑rupee currency note before Rana Wali Muhammad on demand and that Allah Ditta and he had fallen out over the question of writing charges. He had demanded Rs. 3 which sum Allah Ditta was not prepared to pay. He then gave a slap to Allah Ditta who left. He returned and gave him a ten‑rupee currency note asking him to deduct Rs. 3. He was going to give him the balance of Rs. 7 when Rana Wali Muhammad came up and caught him. He asserted that Rana Wali Muhammad was inimical to him as some days prior to the occurrence the children of his niece, who lived on the Beadon Road, had quarrelled with the children of Rana Wali Muhammad and during that quarrel, Rana Wali Muhammad had himself exchanged h words with the appellant who happened to be there. Ran li Muhammad then threatened him with revenge.

The prosecution story was fully supported at the trial by the P. Ws. mentioned above. None of them was proved to be in any manner actuated by malice against the appellant, and no sufficient reason exists for disbelieving them. They told a consistent story free from material discrepancies. Rana Wali Muhammad also denied any previous quarrel with the appellant.

In rebuttal the appellant examined certain witnesses. Ali Muhammad (D. W. 4) and Muhammad Anwar (D. W. 5) deposed that they saw a quarrel proceeding between the children of Rana Wali Muhammad and the accused's niece's children, and that as a sequel, Rana Wali Muhammad and the appellant exchanged bad names. Why the appellant should have been there at all or. Beadon Road where he does not J reside, is not clear. I am not impressed by this evidence. D. W. 2, Abdul Hamid and D. W. 3, Syed Ashiq Hussain, were examined in defence to give the counter‑version of the actual incident. They averred that after the appellant had written the application of the complainant, there was a quarrel between them over the question of writing charges. The appellant pushed the complainant who left but returned soon after, to give a ten‑rupee note to the appellant. The Sub‑Inspector then caught him and took him to the police station. Syed Naqi Shah (D. W. 1), another petition‑writer, alleged that the complainant had first approached him for writing the petition. He demanded As. 0‑8‑0 as writing charges and anna one as price of the paper. For some un accountable reason the complainant left him and went over to the accused with whom he later had a quarrel. He gave the appellant a ten‑rupee note and then went away. He returned half an hour later with a Sub‑Inspector who took away the accused. These D. Ws. made extremely discrepant statements on material details, and after going through their evidence, I have no hesitation in holding that it was false. It is significant that the version given by the D. Ws. does not square with either statement made by the appellant himself in the trial Court.

On the facts, therefore, I am disposed to agree with the learned Special judge that the offence under section 163 of the P. P. C.‑ has been brought home to the appellant. This section in its unamended form, inter alia, that whoever accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person etc., shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. In the present case, I have no diffi culty in finding that the appellant had promised to obtain quick results by the exercise of personal influence with some official and for that he obtained gratification in the sum of Rs. 10.

Mr. Ata‑ur‑Rehman who appeared for the appellant, however, has raised certain legal points in this case which must be noticed. The first contention urged by the learned counsel was that the appellant, though not a public servant, could not have been prosecuted without sanction of the appropriate Government, in the face of the provisions of subsection (5) of section 5 of the Pakistan Amendment Act, 1948, as inserted therein by Amendment, Act (XXXVII of 1953). This point raised before the learned Special judge who rejected it as unsound. The provision in question is in the following terms:‑

"Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law, the previous sanction of the appropriate Government shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act."

The remaining part of this subsection is not material for the purpose of this case. Learned counsel concedes that the position under the ordinary law was that for an offence falling within the purview of section 163, P. P. C., committed by a person other than a public servant, no 'sanction of any authority was required. However, the argument is that as the Criminal Law Amendment Act, 1948, as amended from time to time, covers an offence under section 163, P. P. C., as mentioned in Schedule 11 in that Act and the words of subsection. (5) of section 5 of the Act lay down peremptorily that the previous sanction of the appropriate Government shall be required for any prosecution under the Act, the appellant's case is also covered by this provision. In my opinion, the contention is without substance. The object of this subsection, is to lay down that for all offences prosecuted under the Pakistan Criminal Law Amendment Act, 1948, if the accused was a public servant the sanction of the appro priate Government would be necessary. I am fortified in this conclusion by reference to the words at the end of the sub section "such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act." These words provide the key to the interpretation of the subsection, as they would have been wholly unnecessary if the contention raised on behalf of the appellant were correct. The subsection would then have stopped with the words "for any prosecution under this Act." The subsequent clause is to be, therefore, read' with what precedes it, in order to determine the intention of the Legislature. A reference to the definition of the appropriate Government" in toe amended Act would also lead to the same inference. That expression is defined clearly with reference to a person serving either the Federation of Pakistan, or a Provincial Government, or to a railway employee, or to any other person employed by an organization or body notified as within the preview of the Act by the Central Government. Qua the case of a person who does not fall within these categories, it would be difficult to predicate any "appropriate Government". I, therefore, agree with the learned Special judge that no sanction for the prosecution of the appellant was required in the present case as a condition precedent for the validity of the trial. The argument that section 163, P. P. C., would from its very nature apply not to a public servant but to a person other than a public servant, does not, in my opinion, advance the argument to any considerable extent. The person who commits such an offence may be a public servant and I see no inherent difficulty, therefore in adopting the interpretation; given above.

Mr. Ata‑ur‑Rehman next contended that to establish the offence visualised by section 163, P. P. C., it was incumbent on the prosecution to prove the actual exercise of personal influence by the alleged culprit before a conviction could be recorded under that section. On a plain reading of the section, however, I do not think that the actual exercise of personal influence is necessary to be proved. Indeed such proof may not be available in most cases. In my opinion, it would be sufficient if the gratification is extracted on a promise of exercise of personal influence with an official, to bring the offence within the mischief of the section. Not authority has been cited by the learned counsel in support of his position which I regard as devoid of substance.

By subsection (2) of section 10 of the Pakistan Criminal Law (Amendment) Act, section 163, P. P. C., has to be read so that the words "simple imprisonment" are replaced by the words "imprisonment of either description". I do not see that the sentence in this case is inappropriate. I, therefore, dismiss the appeal.

A. H. Appeal dismissed.

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