Find a Lawyer

Criminal Appeal No.34 of 1986, decided on 24th February, 1987.

---S.161--Prevention of Corruption Act (II of 1947), S.5(2)--Accused, a doctor, allegedly issuing health and age certificates to three children after obtaining illegal gratification in shape of money which was recovered from his person--Prosecution unable to prove what favour accused had done--Neither children in whose favour certificates were issued nor their father/guardian examined at trial and no evidence available that said certificates were issued by accused in discharge of his official duties--Prosecution also silent as to why these certificates were required and where they were to be produced--Accused charge sheeted only on vague allegations--No evidence available that accused demanded any illegal gratification--Persons in whose favour certificates were issued were fictitious persons and their identification had not been disclosed--Evidence against accused obtained from a set up witness who admitted that he was residing at a far away place and no reason given why a witness from locality was not called to act as fake customer--Conviction and sentence set aside in circumstances.

--S.161--Prevention of Corruption Act (II of 1947), S.5(2)--Illegal gratification--Essential elements of S.161, Penal Code read with S.5(2) of Prevention of Corruption Act, 1947--Motive or reward given in consideration of some favour in discharge of official duties has to be shown to establish illegal gratification--Some connection of public servant with performance of his duties has to be there--If a person accepts money for an act which could not be said to be an official act, offence, would not be complete and public servant could not be convicted under S.161, Penal Code, read with S.5(2) of Prevention of Corruption Act, 1947.

Crown Prosecutor v. R. K.Pillai and another A I R 1948 Mad. 281; Bachey Lal v. The State 1952 Cr.L J 118 and Ganhwar v. The State P L D .1975 Kar. 239 rel.

Azizullah K . Shaikh for Appellant.

A. K. Jatoi for the State.

Date of hearing: 23rd February, 1987.

This appeal is directed against the judgment passed by Special Judge Anti-Corruption (Provincial) Karachi on 12-2-1986 by which he found the appellant guilty under Section 161 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo R.I. for 4 months and to pay a fine of Rs.1,000 or in default of payment of fine to undergo R.I. for one month.

The facts in brief are that S.P. Anti-Corruption Karachi had received information that the appellant was Medical Officer, Municipal Dispensary, Landhi, Karachi and was issuing certificates to the persons after taking money from them. On 8-5-1983 S.P. Anti-Corruption, Karachi directed Inspector Altaf Hussain to arrange for the raid. On the same day Inspector called P. W. Munawar and told him to act as a fake customer. He also requested, Mr.Shahani Magistrate to supervise the trap proceedings in the case. The Inspector instructed P.W. Munawar to obtain health and age certificates from accused Dr. Tariq Sandhu for three children. He further told P.W. Munawar to disclose the names of the children as Sameena, Hyder Ali and Anwar Ali. He also called S.M. Akhtar and Adil Akhtar through one constable for acting as mashirs. He handed over Rs.45 to P.W. Munawar as tainted money in presence of the Magistrate and the mashirs. He prepared such mashirnama in respect of handing over the tainted money to P.W. Munawar in presence of the mashirs and the Magistrate. He then alongwith P.W. Munawar, mashirs S.M.Akhtar and Adil Akhtar, Mr. Shahani, Magistrate and police staff came to Future Colony in the Government Van. He stopped the vehicle at some distance from the Dispensary. He came to the Dispensary alongwith the witnesses by foot. He instructed P.W. Munawar to go to the doctor alongwith mashir S.M.Akhtar and approach him for issuing three certificates in the names of above three children. P. W. Munawar alongwith S.M.Akhtar went to the Dispensary of the police arid requested him for issuing certificates in names of three children. They came back after about 15-20 minutes. P.W. Munawar was carrying certificates in his hand. He also gave pre-arranged signal on which Inspector alongwith the Magistrate, mashir and other witnesses went to the Dispensary of the accused. The accused took out Rs.45 from his pocket and passed on the same to the Magistrate. Thereafter P.W. Munawar produced three certificates and three slips issued by the accused. The accused was arrested and on his personal search Rs.295 one wrist watch and few other articles from his possession were secured. The F.I.R. was lodged. The Magistrate prepared the raid report and handed it over to the Inspector. After usual investigation the appellant was sent up to face his trial before the learned Special Judge Anti--Corruption. The accused did not plead guilty to the charge.

At the trial the prosecution examined P.W.1 Munawar who acted as a fake customer, P.W.2 Muhammad Riaz, Deputy Director, Medical, Services, K.M.C., Karachi, P.W.3 Adil Akhtar. P.W.4, Inspector Altaf Hussain and P.W.5 Muhammad Usman Shahani, Magistrate. S.M.Akhtar was given up by the prosecution.

The accused was examined under Section 342 Cr.P.C. but ht denied the prosecution allegations. The evidence on record establishes that the appellant had accepted Rs.45 from tree fake customer Munawar. The said amount was recovered from him and on demand he hands over the said amount to him. The medical certificates of the children Exs.8, 9 & 10 in favour of Sameena, Haider Ali and Anwar Ali have been established, through the evidence of these witnesses. The Magistrate has corroborated the evidence. The appellant in fact has not denied the material facts. He has admitted that he had issued three certificates to the children who were shown to him one day earlier at his clinic. About the recovery of money he has stated that Munawar had forcibly put same money in his pocket, he wanted to return the same amount to Munawar but in the meanwhile the Inspector came there and secured that money. He has stated that this case is foisted on him at the instance of one Idrees.

The precise question for the decision in this appeal is whether the offence under Section 161 PPC read with Section 5(2) of the Act II of 1947 has been established against the appellant. The evidence on record establishes the fact that the appellant had issued three; certificates Exs.8, 9 and 10. It is also proved that he had received Rs.45 from P.W.1 Munawar and the said amount had been recovered from his person in presence of Magistrate and other witnesses. The, prosecution, however, has not been able to prove as to what favour the appellant has made in the present case. The children in whose favour the alleged certificates have been issued have not been examined at the trial. Their father or guardian has also not appeared as a witness. There is also no evidence that such certificates were issued by the appellant in discharge of his duties for doing a favour to the certificate holder. It is also not mentioned as to why these certificates were required and where these certificates were to be produced The prosecution is also silent on the point whether such certificates are demanded by any Educational Institution or some other department. The requirement of these certificates under any law or rule has not been mentioned. Therefore on the vague allegation the appellant has been charge-sheeted. In this context I may quote Section 161 P.P.C.

"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 show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting 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 imprisonment of either description for a term which may extend to three years, or with fine, or with both."

Criminal misconduct has been defined in Section 5(1) of Act II of 1947 and the relevant provision is as under:

5. Criminal misconduct.--(1) A Public servant is said to commit the offence of Criminal misconduct:-

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

The cumulative effect of these provisions is that a public servant must have demanded illegal gratification as motive or reward or doing any favour or disfavour to a person in the exercise of his official functions. In the present case there is no evidence that the appellant has demanded any illegal gratification from P.W.1 Munawar. P.W.1 Munawar of his own accord went to the office of the appellant and paid him Rs.45. The persons in whose favour the said certificates were issued appear to be fictitious persons. Their identification has not been disclosed. The essential element of Section 161 PPC read with Section 5(2) of Act II of 1947 is that illegal gratification should be obtained as a motive or reward. It is given in consideration of some favour in discharge of in his official function. They must be connection of the public servant with the performance of his duty. Therefore it must be shown that the bribe has been accepted as a motive or reward for doing a favour in persuance to his official act. The necessary conclusion would be that in case a person accepts money for an act which cannot be said to be an official act the offence is not complete. If it is not confined to his official act and for rendering or attempting to render any service then a public, servant cannot be convicted under Section 161 PPC; read with Section 5(2) of Act II of 1947. In the case of Crown Prosecutor v. R..K.Pillai and another. A I R (35) 1348 Madras 281 it has been held that:-

"Before it can be said that the gratification offered is a motive or reward for any of the purposes mentioned in S.161, a connection must be established between the performance of the official duty and the demand or payment of the gratification. Where, therefore, it is found that money was paid to the public officer as a donation independently of his doing an official act, no offence is committed under S.161 read wits; S.114."

In the case of Bachey Lal v. The State 1952 Cr.L J 118 it has been observed that:-

"If a person accepts money as a motive or reward for an act which cannot be said to be an official act, he is not guilty under S.161."

In the case of Ganhwar v. The State P L D 1975 Kar. 239 it has been observed that:-

"A public servant can discharge his duties only as a public servant and not otherwise or in any other manner. The moment he does an act in a different capacity he could not by any interpretation be said to be discharging his duties."

In the said case it has been further observed that:-

"The test is whether a public servant expressly or ostensibly commits an offence or does an act in the garb of his office. In other words if the act of misdemeanour bears relation or connection to his status as a public servant or performance of his duties as such public servant, he may attract the penalty of Section 5(1)(d) of the Prevention of Corruption Act. But on the other hand if a public servant does an act which bears no relation or even the semblance of it to the performance of his official duties, he cannot be considered to be guilty of a misdemeanour as such public servant."

Another point in favour of the appellant is that according to P. W.2 Muhammad Niaz, Deputy Director, Medical Services, K.M. C. Karachi "the doctors working in K.M.C. are allowed to do private practice provided it does not clash with their duty hours. There is no restriction upon the doctors working with K.M.C. regarding the issuance of any certificate by them in their private capacity."

The learned counsel for the appellant has also assailed the evidence of P.W.1 Munawar who according to the learned counsel was a set up witness. This contention appears to be correct and the learned counsel appearing on behalf of the State has also frankly conceded this position. This witness has admitted that he had been residing at Keamari for the last 20-25 years where he was running a hotel. He was called by the Inspector, but in his further statement he has stated that he was passing by the side of the Office of Anti-Corruption when he was called by the Inspector Anti-Corruption. He is residing at a place which was at a considerable distance from the Office of the Anti-Corruption Establishment. The prosecution is silent as to why a witness from such a long distance was called. Investigation Officer has stated that he was not known to him prior to day of incident. It is therefore clear that he was a procured witness. No reasons has been given as to why a witness from the locality was not called and a person who was residing at far away place was called to act as fake customer.

For all the aforesaid reasons the appeal is allowed. The conviction and sentence recorded against the appellant are set aside. He is on bail. His bail bonds are discharged.

The appeal was disposed of by the short order. The above are the reasons for the same.

M.Y.H./T-12/K 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.