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Criminal. Miscellaneous No. 453 of 1979, decided on 19th November, 1979.

-- S. 161-Bribery-Criminal case against accused informer having already been dropped and no longer pending, acceptance of tainted money by a Government servant on a subsequent date for getting case filed, held, not acceptance of illegal gratification-Case could be one of defrauding informer or of some other offence but certainly not one of acceptance of illegal gratification under S. 161, Penal Code, 1860.

Asad Bilgrami for Applicant.

Wasi Ahmad for the State.

Dates of hearing: 18th and 19th November, 1979

This petition under section 561-A, Cr. P. C. seeks to quash proceed ing pending against the applicant and one other Farooq in the Court of Special Judge, Anti-Corruption, Karachi in Case No. 40 of 1978.

On 19^thJanuary, 1977, a case was registered at Gulberg Police Station against one Usman a driver of R. T. C. for rash and negligent driving under section 297/307/427, P. P. C. Usman was bailed out in that case and it appears that he had been going to the Court of Xth A. C. M. Karachi on different dates for the purpose of his case. On 17th July, 1977 Inspector Muhammad Sadiq submitted a final report under section 173 of Cr. P. C. before S. D. M. Liaquatabad to the effect that the proceeding against Usman may be dropped as real culprit was untraceable. The same was allowed by the S. D, M., Liaquatabad on 10^thJuly 1977. A copy of the application and order of the S. D. M. has been produced. It seems that Usman Khan was not aware of this diposal of the case and he therefore continued visiting the Court of Xth A. C. M. and on 9th August, 1977 he had a talk with the Peshkar of that Court for the disposal of that case and that man demanded Rs. 1,000 from him to get the case settled. But eventually the matter was settled at Rs. 500 which was to be paid on 24th August, 1977. Usman Khan informed Anti-Corruption Police and raid was arranged and consequently, on 24^thAugust, 1977, Usman went with the police party to the Court of Xth A. C. M. Karachi, the Magistrate was not there and even the Peshkar Farooq, co-accused of the present applicant was not there. But the applicant Shamsul Qamar Warsi who was a P. S. I. was present in the Court and he enquired from Usman Khan as to what was the matter and on Usman Khan informing that he wanted to get his case settled Shamsul Qamar demanded Rs. 1,000 as bribe and eventually agreed to accept Rs. 700 for the said favour, but since Usman Khan had only Rs. 500 therefore, he had to go back to Anti-Corruption Police and got another Rs. 200. Usman Khan came back to the Court, both the accused namely Farooq and Shamsul Qamar were present in Court and both of them demanded Rs. 700 from Usman and Peshkar Farooq told complainant Usman to give the money to P. S. I. Shamsul Qamar. The P. S. I. accepted the tainted money and kept it in his pocket, which was recovered by the police party.

Mr. Asad Bilgrami, learned counsel for the applicant, has argued that the case against Usman Khan having already been dropped on 18th August 1977, the applicant was not in a position to give any favour to complainant Usman and there was nothing to be done in that case at all. And therefore; even if all the allegations of the complainant in the F. I. R. and the prosecution witness are accepted to be correct, no case is made out under section 161, P. P. C. I may at the stage here make note of the fact that an application under section 265-K, Cr. P. C. had been moved by the applicant before the trial Court on 12th July 1979, but the same was dismissed on 12th August 1979, on the ground that the accused was caught red-handed with tainted money and he had absconded for more than a year and the case could not proceed at all. No evidence in the case has so far been led. It was held in P L D 1965 Kar. 531 ( ) that where an Inspector in the Custodian Department had accepted a bribe of Rs. 20 from an applicant for allotment of a house on 18th February, 1953, but the case of that woman Chandarbai, from whom bribe was taken, had already been decided on 14th February 1953, therefore it was held that that Inspector was functus officio on 18th February, 1953 and he could not be said to have accepted the bribe within the meaning of section 161, P. P. C. as the question of the Inspector showing any favour to the applicant therein did not arise. The fact of that case appear to be quite similar to the case before me. It has been clearly brought out by the applicant by the production of certified true copy of the report under section 169 of Cr. P. C. submitted by Inspector Mohomed Sadiq, on 17th July 1977, and the order made by the S. D. M., Liaquatabad thereon on 18th July 1.977, that the case against Usman A Khan had been dropped and the case was treated as untraced. And, therefore, either on 9th August, 197-7 or 24th August, 1.977, the applicant was not in a position to show any favour to the said complainant Usman Khan, and therefore, the acceptance of Rs. 700 on 24th August, 1977 could not be regarded as acceptance of illegal gratification under section 161, P. P. C. It may be that the applicant had defrauded the complainant Usman or had committed some other offence but that would be a different offence from the present offence under section 161, P. P. C. Consequently the proceedings under section 161, P. P. C. are quashed. It is however made clear that the prosecution would not be debarred from filing a fresh proceeding against the applicant if they could make out a case under some other provision of law.

Application allowed.

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