Find a Lawyer

Criminal Appeal No. 3 of 1958, decided on 24th April, 1958 from the order of Abdul Rashid, Special Judge (District and Sessions Judge), Bahawalpur, dated the 31st January, 1958.

(a) Pakistan Criminal Law Amendment Act (XIX of 1948), S. 5 (2)‑Sanction‑Mentioning only one part of offence under S. 161, P. P. C.‑Not valid for other parts.

If a section has more than one part and the sanction on which the prosecution relies deals with only some of those parts, the accused can be tried only under that part of the section which is indicated in the sanction and the sanction cannot be considered to be valid if the facts disclose that part of the section not men tioned in the sanction was applicable.

Where the third part of S. 161, P. P. C. alone could be attracted on the allegations against the accused, but the sanction as given mentioned in clear terms that what it related to was what fell within first two parts of S. 161, P. P. C. though there was‑‑also the statement that the public servant concerned had rendered himself liable for punishment under S. 161, P. P. C.

Held, that the sanction relied upon by the prosecution could not be of any avail in so far as the offence under section 161 of the Pakistan Penal Code alleged against the appellant was concerned.

Gokulchand Dwarkadas Morarka v. The King P L D 1948 P C 11; Tufail Muhammad v. The Crown P :L D 1954 Lah. 37 and Muhammad Nazir v. The State P L D 1957 Lah. 414 ref.

(b) Pakistan Criminal Law Amendment Act (XIX of 1948), S. 5 (2)‑Prevention of Corruption Act (11 of 1947), S. 5 (1) (d) ‑Public servant accepting gratification merely as an informant in a theft case not related to his, official functions‑Sanction men tioning abuse of power as a public servant‑Sanction not valid.

Clause (d) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, is applicable where by corrupt or illegal means or by abusing his position a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. The appellant was alleged to have accepted Rs. 100 in order to help the giver of the money to escape liability for theft by using his influence with the police. What the appellant stated "to have under taken to do he would have done as the informant who had earlier moved the police and not as a public servant and the sanction relied upon by the prosecution could not be availed of. Conse quently, the trial of the appellant could not proceed by reason of the fact that there was no valid sanction, for his prosecution in a Court of law.

Malik Muhammad Din for Appellant.

M. Anwar, A. A. G. for Respondent.

Date of hearing: 17th March 1958.

This appeal is directed against the order of Maulvi Abdur Rashid, Sessions Judge, Bahawalpur, who, acting as a Special Judge, by his order, dated the 31st of January, 1958, sentenced Muhammad Ramzan, who used to be an Assistant Way Inspector on the North Western Railway, to six months' rigorous imprisonment under section 161 of the Pakistan Penal Code read with section 5 (2) of the Prevention of Corruption Act, 1947.

2. The allegation of the prosecution against the appellant was that he had, on the 30th of October, 1956, accepted a sum of Rs. 100 from Malik Muhammad Qasim as gratification other than legal remuneration. What precisely the gratification was taken for is not clear but ,the sanction for prosecution granted on the 18th of July 1957 by the Ministry of the Interior, which bore the signatures of a Deputy Secretary to the Government of Pakistan, reads as follows :

" Whereas it appears that Muhammad Ramzam, Assistant Way Inspector, North Western Railway, Dera Bakha, Police Station Sadar, District Bahawalpur, by abusing his position as a public servant accepted on the 30th of October 1956 a sum of Rs. 100 as gratification other than legal remuneration from one Muhammad Qasim ,son of Qadir Bakhsh as a motive for showing him favour, namely, saving him from the police for his allegedly stealing a log of wood belonging to the Railway, the Central Government, on perusal of the relevant papers and consideration of the facts of the case and the expediency of the matter is pleased, under subsection (2) of section 5 of the Pakistan Criminal Law Amendment Act, 1948, (XIX of 1948) to sanction prosecution of the said Muhammad Ramzan for the above‑mentioned offence punishable under section 161 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act, 1947, (II of 1947) in the Court of the Special Judge (Sessions Judge, Bahawalpur)".

3. At the trial the case for the prosecution was supported by Mr. Muhammad Aslam Sukhera, Magistrate 1st Class, Ahmadpur East (P. W. 1), Malik Muhammad Qasim (P. W. 2), Musa (P. W. 3) and Muhammad Hanif, Inspector Special Police, Bahawalpur (P. W. 4). The version given by the above‑named prosecution witnesses was that a raid to catch the appellant red‑handed was arranged on the 24th of October 1956 but proved abortive because he did not come to the place where Muhammad Qasim lived, near which place, according to the prosecution, it had been arranged that the appellant would be paid the money. On the 30th of October 1956, the appellant came to the place and, according to Muhammad Qasim (P. W. 2), was given a sum of Rs. 100 in order to help him get out of the clutches of the police who might want him for having stolen a log of wood alleged to belong to Government and which he claimed to be his own. The raid party was at hand because information had been sent by Muhammad Qasim (P. W. 2) that he would be coming that day. It appears. from the evidence on the record that on the 29th of October 1956 the appellant sent a telegram to the Railway Police Post at Baghdad‑ul‑Jadid that Ghulam Haider and Qadir Bakhsh, sons of Muhammad Qasim, had been caught red‑handed cutting a tree belonging to Government. This report was recorded in the police daily register of the Railway Police Post at Baghdad‑ul‑Jadid on the 29th of October 1956 and was sent on for further action in the matter to the police station in the jurisdiction of which the place where the theft was alleged to have been committed was situated. It is in evidence that on the 24th of October, 1956, at about 9 a.m., Malik Muhammad Qasim (P. W. 2) had made a report to Muhammad Hanif, Inspector of the Special Police Establishment, Government of Pakistan, who was posted at Bahawalpur, that on the previous day he had been caught by the appellant who had falsely accused him of cutting a tree belonging to Government and had demanded a sum of Rs. 200 in order to let him go but had on his entreaties agreed to accept a sum of Rs. 100 only which was to be paid to him that day. It was because of this report that a raid was arranged on the 24th of October 1956 which, as already mentioned, bore no fruit for the reason that the appellant did not go to the place at which he had been reported to have agreed to accept the bribe.

4. With regard to the actual offer and acceptance of money, the evidence of the prosecution consists of the depositions of Muhammad Qasim (P. W. 2) and Musa (P. W. 3). Muhammad Qasim deposes that the money had been demanded by the appellant to help him get out of the clutches of the police. He said that on the 30th of October 1956 in the afternoon when the appellant came to a place near the house of the witness, he was waiting for him as the appellant had sent him a message that he would be coming that day. When he arrived the appellant was offered the money and told Musa trolly-man to take it. The money was handed, over to Musa trolly‑man, and shortly after Mr. Sukhera (P. W. 1) and Muhammad Hanif, Inspector of. Police (P. W. 4), on an arranged signal being given, came to the spot where the money had changed hands. The Magistrate and the police officer wanted to search the appellant upon which Musa (P. W. 3) told them that the money was with him. Mr. Sukhera (P. W. 1) and Muhammad Hanif (P. W. 4) support this part of the prosecution story.

5. When questioned to explain the evidence against him, the appellant denied that he had accepted Rs. 100 as illegal gratifica tion. He admitted that on the 30th of October 1956 he was travelling by a trolly accompanied by Musa and three other trolly- men and that he was stopped by Muhammad Qasim who put his hand up for the purpose. Muhammad Qasim had appeared suddenly and put his hand up which made it necessary that the brakes be applied abruptly, with the result that they were damaged. Muhammad Qasim tried to thrust the money in his pocket but he took it out and threw it away. Muhammad Qasim picked the notes up and tried to put them in his office box but the appellant again threw away the money. Musa was about to collect those notes evidently with the object of handing them over to Muhammad Qasim when the raiding party came there and took the money in possession. The appellant produced Bahawala as the solitary witness in defence. The defence witness deposed that he was in the trolly on the 30th of October 1956 with the appellant when Muhammad Qasim stopped the trolly and implored the appellant to help him with the police in the matter of the theft of the wood and offered him Rs. 100. The appellant refused to take the money and took the thumb im pression of Muhammad Qasim on a piece of paper so that he should make a report against him for the damage occasioned to the railway trolly. The witness added that when the money was offered to the appellant, he threw it away and Musa was collecting it when the raiding party appeared on the scene and took it in possession.

6. The first question to consider is whether the sanction on the strength of which the prosecution of the appellant started justified it. The sanction, which is Ex. P. Q. on the record and has been reproduced in an earlier part, shows that the Government had sanctioned the prosecution of the appellant, because it was believed that he had accepted a sum of Rs. 100 as gratification other than legal remuneration from Muhammad Qasim as a motive for saving him from the Railway Police for his allegedly having stolen a log of wood belonging to the Railway Depart ment. Section 161 of the Pakistan Penal Code is in the following terms :‑

"Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempt ing to render any service or disservice to any person, with the Central or any Provincial Government or Legislature, or with any public servant, as such, shall be punished with imprison ment of either description for a term which may extend to three years, or with fine, or with both.

Explanations.‑" Expecting to be a public servant ". If a person not‑ expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

" Gratification ". The word " gratification " is not restricted to pecuniary gratifications, or to gratifications estimable in money.

" Legal remuneration ". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government; which he serves, to accept.

" A motive or reward for doing". A person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within these words.

and that part of section 5 of the Prevention of Corruption Act, 1947, which can have application is contained in clauses (a) and (d) of subsection (1) which read as follows :‑

" (a) If he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code".

"(d) If he, by corrupt or illegal means or by otherwise abus ing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage".

It is clear that the offence under section 161 of the Pakistan Penal Code is in so far as a person in the public service is concerned the same as the one falling under clause (a) of section 5 of the Preven tion of Corruption Act. Now, section 161 of the Pakistan Penal Code can be divided into three parts; the first of these parts makes punishable accepting or obtaining or agreeing to accept or attempt ing to obtain from any person by a public servant for himself or for any other person any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act; the second part would be applicable if the above‑mentioned gratification is taken for showing or forbearing to show in the exercise of official functions any favour or dis favour to any person; while the third part would apply where the gratification is taken for rendering or attempting to render any service or disservice to any person with the Central or any Provincial Government or Parliament or any Legislature, or with any public servant. It is clear that the sanction (Ex. P. Q.) was not intended to cover the case if it fell within the above‑mentioned third part of section 161 of the Pakistan Penal Code, but would be apt if the act of the accused fell within either of the other two parts of that section.

7. When I questioned the learned Assistant Advocate‑General if the sanction (Ex. P. Q.) could cover the proved facts of the present case, he urged that though the wording of the sanction would make it appear that what the authority granting it had in view was the first two parts of section 161 of the Pakistan Penal Code, yet as the sanction mentioned that the offence committed was punishable under section 161 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act, 1947, the defect in the wording of the sanction could not bar the conviction of the appellant under either of the two sections mentioned therein, In any view this argument of the learned counsel for the State cannot be accepted. The law makes it clear that an offence under sanction 161 of the Pakistan Penal Code as one under section 5 of the Prevention of Corruption Act, 1947, cannot be taken cognizance of by a Court except with the sanction of the appropriate authority. It has been laid down by their Lordships of the Privy Council in Gokulchand Dwarkadas Morarka v. The King (A IR 1948 P C 82 : P L D P C11) that a sanction enjoined by law as a pre‑requisite for a prosecution is not just a formal matter, and if the sanction is given for one offence, the accused cannot be convicted of another. An almost similar view was taken in Tufail Muhammad v. The Crown (P L D 1954 Lah. 37) and Muhammad Nazir v. The State (P L D 1957 Lah. 414) wherein it was held that if the authority granting the sanction were proved got to have applied its mind to the facts of the ease before granting sanction, the sanction was invalid and the trial based on it had no legal basis. After fully consider ing the matter, I have arrived at the conclusion that if a section has more than one part and the sanction on which the prosecution relies deals with only some of those parts, the accused can be tried only under that part of the section which is indicated in the sanction and the sanction cannot be considered to be valid if the facts disclose that part of the section not mentioned in the sanction was applicable. If the sanction in the present case had not mentioned in clear terms that what it related to was what fell within first two parts of section 161 of the Pakistan Penal Code and had merely mentioned that Muhammad Ramzan had by accepting illegal gratification made himself liable for punishment under section 161 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act, 1947, there would have been no objection to the trial and the conviction of the appellant under any of the parts of section 161 of the Pakistan Penal Code but as the third part of section 161 of the Pakistan Penal Code, which alone could be attracted on the allegations against the appellant, was not mentioned in the sanction, I am constrained to hold that the trial of the appellant was vitiated unless it can‑be held that what the appellant is alleged to have done falls within either of the first two parts of section 161 of the Pakistan Penal Code.

8. I now proceed to consider whether or not the act alleged against the appellant fell within either of the first two parts of section 161 of the Pakistan Penal Code. The first part of that section applies when the gratification other than legal remuneration is taken as a motive or reward for doing, or forbearing to do an official act. The prosecution case is that the object of the accused was to help Muhammad, Qasim in escaping punishment for an offence of theft for cutting a tree belonging to Government. If the appellant had tried to help the culprit, it could not be said that he had done or forborne to do any official act and consequently the first part of section 161 of the Pakistan Penal Code did dot apply. What has been said above about the first part of section 161 of the Pakistan Penal Code applies with equal force to the second part of that section, because that part applies when the gratification is taken for showing or forbearing to show favour or disfavour to any person in the exercise of the official functions of the public servant concerned. It is established that Muhammad Ramzan had made a report to the police with regard to the theft of a tree belonging to Government, and if after that he tried to favour the person mentioned as the culprit, he could not be said to be showing or forbearing to show in the exercise of his official functions any favour to those who had been alleged by him to have committed a theft, because the favour that he could have shown would have been in his capacity as the informant to the police and not in his capacity as a public servant. I would hold, therefore, that the sanction relied upon by the prosecution could not be of any avail in so far as the offence under section 161 of the Pakistan. Penal Code alleged against the appellant went.

9. I will now deal with the question whether or not there was any defect in the sanction in so far as the offence under section 5 of the Prevention of Corruption Act was concerned. The parts of section 5 of the Prevention of Corruption Act which could have application are contained in clauses (a) and (d) of subsection (1) which have been reproduced in an earlier part. Clause (a) is in all respects material for this case applicable only where section 161 of the Pakistan Penal Code is and I am of the view that as the sanction was defective for the purposes of section 161 of the Pakistan Penal Code it will be equally defective for the offence under section 5 (1) (a) of the Prevention of Corruption Act, 1947. Clause (d) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, is applicable where by corrupt or illegal means or by abusing his position a public) servant obtains for himself or for any other person any valuable thing or pecuniary advantage. Even if the prosecution case be accepted in its entirety, the appellant accepted Rs. 100 in order to help the giver of the money to escape liability for theft by using his influence with the police. What the appellant was stated to have undertaken to do he. would have done as the informant who ha4 earlier moved the police and not as a public servant and the sanction relied upon by the prosecution could not be availed of. Consequently, I hold that the trial of the appellant could not proceed by reason of the fact that there was no valid sanction for his prosecution in a Court of law.

10. As I have held that the sanction relied upon by the prosecu tion was defective, it does not appear necessary to consider whether or not the allegations of the prosecution against the appellant were correct. I might, however, mention that the case has some features which are not easily understood. On the one hand, there is the fact that Muhammad Qasim made a report on the 24th of October 1956 that the appellant had asked for illegal gratification and the report resulted in the collection of a raid party on the 24th of October 1956; on the other hand, there is the fact that one day before the raid, which was conducted on the 30th of October 1956, the: appellant had made a report to the police alleging that two sons of Muhammad Qasim had been guilty of the theft of a tree belonging to the Railway Department. 'If it had been necessary to consider the case on merits the above‑mentioned irreconcilable circumstances would have swayed the scale in favour of the accused.

11. In view of what I have said above, I accept the appeal on the ground that because of the defect in the sanction for his prosecution, the trial of the appellant could not proceed. The appellant who is in jail should be set at liberty forthwith.

A. H. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.