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Criminal Appeal No. 93 of 1960, decided on 6th March, 1961.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 29th September, 1959, in Criminal Appeal No. 235 of 1956).

S. 5 (1) (a) (d) read with S. 161, Penal Code (XLV of 1860)‑"Criminal miscon duct"‑Medical officer charging larger fee than chat prescribed by Rules, for issuing certificate in a private medico‑legal non- cognizable case as a private medical practitioner‑Conduct, held, did not fall under S. 5 (1) (a) (d) or S. 161‑Act not "official" Receipt of excess fee not "illegal", but proper subject for depart mental action (By majority; S. A. Rahman, J. contra)‑Penal Code (XLV of 1860), S. 43‑"Illegal", definition‑Rules (Medical Department), r. 4 (c)‑Constitution of Pakistan (1956), Art. 224 Breach of statutory Rules‑"Illegal" (per S. A. Rahman, J.).

Held, (per majority, S. A. Rahman, J., contra) : that the receipt by a doctor of money, for his professional services as a private medical practitioner, in excess of the sums specified in the relevant rule [r. 4 (c)] does not amount to the gaining of pecuniary advantage by "illegal means". It may be a breach of Rules inviting sanctions of a departmental character.

The word "illegal" is defined in section 43 of the Penal Code as being "applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action". In the present case, the relevant rule is worded not in terms of prohibition but in affirmative terms. It is not indicated that the intention is to prevent Medical Officers from charging any fee higher than that mentioned. On the other hand, it is possible to construe the rule as providing minima in respect of fees, but without going to that extent, it is sufficient to say that the rule cannot be construed and applied as if it were worded so as to prohibit the charge of any sum in excess of that specified. Even if it was so worded, it might still be a question whether, bearing in mind that this was a rule included in a large set of detailed rules applicable to Medical Officers, it could by any means be regarded as having the force and effect of law, as generally understood, so that contravention would necessarily involve an illegality. It is equally clear that there is nothing in the Rules or in any other law to make it an offence per se, for a Medical Officer to charge more than the prescribed sums. And finally, it is very much open to doubt whether any civil action for a payment in excess of the sums mentioned in the Rules can be maintained by a private person who has made such payment.

Per S. A. Rahman, J.‑As (the Medical Officer concerned) obtained an advantage for himself by contravening a statutory rule, the means adopted could fairly be described as "illegal" as the act was contrary to "law". A statutory rule is included within the generic term "law". The provisions of Art. 224 of the late Constitution would seem to support this view.

The prescription of a specific fee in the rule, by necessary implication prohibited demanding a higher fee. The rule had statutory force being one of the Rules promulgated by the Governor under section 241 of the Government of India Act, 1935 and continued in force by subsequent constitutional instruments :

Held, that in examining a private medico‑legal non‑cognizable case, the Medical Officer did not act in his official capacity.

In the absence of anything to show that Medical Officers are debarred from attending to a private case in the Government Hospital to which they are attached, during office hours, or that they cannot use their official designation in the certificates they issue, the act was not "official".

The act complained of not being one which had any relation to the doctor's official functions or capacity or character was not within the purview of clause (d) of subsection (1) of section 5 of the Act.

Mahmud Ali Senior Advocate Supreme Court (Rafiq Ahmad Advocate Supreme Court with him) instructed by Siddiq & Company Attorneys for Appellant.

Fazal Elahee Advocate Supreme Court instructed by Ijaz Ali Attorney for Respondent.

Date of hearing : 16th February, 1961.

.‑This is an appeal by special leave against a conviction recorded by the High Court of West Pakistan upon an appeal against an acquittal. The appellant Dr. Niaz Ahmad, an Assistant Medical Officer in the service of the West Pakistan Government, had been charged of the offence of criminal misconduct in the capacity of a public servant, punishable under section 5 of the Prevention of Corruption Act, 1947. The case against him was extremely simple. One Sana Ullah who had received a slight beating at the hands of another, wished to obtain a medical certificate of his injuries for the purpose of pursuing the matter. He went to Dr. Niaz Ahmad who was Assistant Medical Officer at the Chowinda dispensary in the Sialkot district, for the purpose. The prosecution case is that the doctor demanded a fee of Rs. 10, although under the Rules of his service he was only entitled to receive Rs. 2. Sana Ullah collected the money apparently with some difficulty, and at the same time reported the matter to the authorities with the result that a raiding party was sent to follow him when he went with the money to Dr. Niaz Ahmad and there, the doctor first took the money, viz. two currency notes of five rupees each, and then proceeded to examine the person of Sana Ullah. While this was going on, the signal was given to the raiding party who entered the room and as they did so, the accused is said to have taken the two currency notes from his pocket and to have thrown them on the operation table.

The defence of the accused was, that Sana Ullah had come to him in connection with his own injuries, while the doctor was busy attending to other patients and a companion of Sana Ullah, Muhammad Butt put the two notes into his pocket. The doctor refused to accept the money and was insisting on taking only what he was entitled to, but Muhammad Butt persisted and put the money in his, pocket and it was just then that the raiding party came in, were-upon he pulled out the notes.

The trial Court came to the conclusion that Dr. Niaz Ahmad was innocent, and had "fallen a victim to private grudge on the part of certain Badmashes of Chowinda whom the accused could not accommodate." In coming to this conclusion, the Special Judge relied on the fact that all the three eye‑witnesses, namely, Muhammad Shafi, Sana Ullah and Abdur Rashid were Badmashes, and further that there was no reasonable explanation for the speed with which officials had been informed in Sialkot of what was going to happen in Chowinda and for their coming to the spot in the manner shown. On the other hand, it appeared that Dr. Niaz Ahmad had given offence to a group of Kashmiris is Chowinda by not agreeing to give them medical certificates as they wished for their own purposes. The matter was taken in appeal by the Government to the High Court against the acquittal recorded by the Special Judge, and a, Division Bench came to the conclusion that Dr. Niaz Ahmad had accepted Rs. 10 consciously for issuing the medical certificate, for which he was actually entitled only to Rs. 2. The learned Judges thought that the reasons which had led the Special Judge to acquit the accused were "incorrect and even perverse and could not reasonably be arrived at by a Judicial Officer." At the hearing before us, no question was raised regarding the acceptability or otherwise of the evidence led to prove the acceptance of Rs. 10. Mr. Mahmud Ali presented only an argument in law which had been rejected by the High Court. The argument turns upon a proper construction of clauses (a) and (d) of subsection (1) of section 5 of the Prevention of Corruption Act. In the first instance, reference was invited to the Rules by which a Medical Officer in the position of Dr. Niaz Ahmad was governed in respect of such fees. It was pointed out that the case which Sana Ullah had brought to the doctor was not a cognizable case, and therefore the medico‑legal examination was not performed on behalf of the Government and could not fall within the scope of the doctor's regular duties, for which no fee was leviable: The case fell under clause (c) in Rule 4, namely, where a :Medical Officer "examines a private medico‑legal (non‑cognizable) case other than a post‑mortem in his capacity as a private medical practitioner". The rule specifies that for such a service, the Medical Officer may charge Rs. 2. Reference was then invited to section 161 of the Penal Code; where the offence of bribery in the general sense is defined, and it was emphasised that whether the gratification was legal remuneration or otherwise would be irrelevant in a case like the present unless it was taken "as a motive or reward for doing or forbearing to do any official act". Mr. Mahmud Ali argued that where it was from the outset the case‑ that the act of the doctor was one performed by him in his capacity as a private medical practitioner, doing a medico‑legal (non‑cognizable) case, it would be impossible to say that he took whatever he did for doing an official act. Clause (a) in subsection (1) of section 5 of the Prevention of Corruption Act, 1947, makes a reference to section 161, P. P. C. for the purpose of defining the offence thereby created, and it was urged that since the act which the doctor performed was not an official act, clause (a) had no bearing on the case. The other clause which ‑had been relied upon by the prosecution and in the judgment of the High Court was clause (d) which makes it criminal misconduct in a public servant "if he, by corrupt .or illegal means or by otherwise abusing his position as a public servant obtains far himself or for any other person any valuable thing or pecuniary advantage:"

As to this, Mr. Mahmud Ali's argument was that there was no abuse of Dr. Niaz Ahmed's position as a public servant, since he was acting in the capacity of a private medical practitioner. It could not be said that he was using corrupt means, since no moral turpitude is involved in professional man setting a certain price which is not in itself unreasonable, upon the service which he is asked to perform. It was true that on the facts found, Dr. Niaz Ahmad had benefited in money to the extent of Rs. 8, by comparison with the very small amount which he was entitled to charge, but it was urged that it was impossible to say that he had done so by "illegal means". It was argued that it is not every breach of Departmental Rules which can qualify for the description "illegal". There must be something which has been prohibited by law, or something the doing of which attracts an action at law or which constitutes an offence. It was urged that if the matter be viewed in that light, the mere fact of the doctor having received Rs. 8 more than the sum which he was entitled to receive for the same service did not constitute the employment of "illegal means" for procuring pecuniary advantage.

We consider that the argument is sound and unassailable the word "illegal" is defined in section .43 of the Penal. Code a being "applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action". In the present case, the relevant rule is worded not in terms of prohibition but, in affirmative terms as below :‑

"(c) if a Medical Officer whether of‑ the Provincial or the Subordinate Service examines a private medico‑legal (non cognizable) case other than a post‑mortem in his capacity as a I private medical practitioner he will, according to his rank, be entitled to charge the following fee from the party concerned.

It is not indicated that the intention is to prevent these Medical Officers from charging any fee higher than that mentioned. On the other hand, it is possible to construe the rule as providing minima in respect of fees, but without going to that extent, it is sufficient to say that the rule cannot be construed and applied as if it were worded so as to prohibit the charge of any sum in excess of that specified. Even if it was so worded, it might still be a question whether, bearing in mind that this was a rule included in a large set of detailed rules applicable to Medical Officers, it could by any means be regarded as having the force and effect of law, as generally understood, so that contravention would necessarily involve an illegality. But as the wording of the rule stands, that is to say, worded as it is in the affirmative form the sense of a prohibition clearly does not appear. It is equally clear that there is nothing in the Rules or in any other law to make it an offence per se, for a Medical Officer to charge more than the prescribed sums. And finally, it is very much open to doubt whether any civil action for a payment in excess of the sums mentioned in the Rules can be maintained by a private person who has made such a payment.

Therefore, it seems to us to be quite plain that the receipt by the doctor of money, for his professional services as a private medical practitioner, in excess of the small sums specified in the relevant rule does not amount to the gaining of pecuniary advantage by "illegal means". It may be a breach of Rule inviting sanctions of a departmental character, and we may be permitted to express surprise that for so small a matter, the entire machinery of criminal justice was set in motion by the Govern ment when the matter could so easily have been investigated and duly visited on the departmental side.

It may perhaps be useful to state the argument which induced the learned Judges in the High Court to hold that Dr. Niaz Ahmad was guilty of criminal misconduct in this case. It had been pressed before them that the money was received by the doctor in his private capacity, but they declined to accept this on the following grounds, viz. that the doctor had been approached at the Government Hospital in his capacity as a Government doctor, that the certificate which was intended to be obtained was a certificate from a public servant which would have a higher value than a certificate from a private practitioner, that Dr. Niaz Ahmad examined Sana Ullah during office hours in the Civil Hospital, and had signed the medical certificate at Assistant Medical Officer. In the absence of anything to show that Medical officers are debarred from attending to a private case in the Government Hospital to which they are attached, during officer hours, or that they cannot use their official designation in the certificates they issue, these circumstances are clearly insufficient to constitute Dr. Niaz Ahmad's examination and certification of Sana Ullah, on official act.

The learned Judges went on to say that even if the case did not fall under section 5 (1) (a) of the Prevention of Corruption Act, "it clearly falls under clause (d) of subsection (1) of section 5 of the Act, namely, that he by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself a sum of Rs. 8 which was a pecuniary advantage". The conclusion is not preceded by any examination of terms of clause (d) nor is it supported by any argument. The true- meaning to be attached to the expression "illegal means" never received consideration in the High Court. The expression is found in other legal provisions of no less importance than the Prevention of Corruption Act. It forms for instance an essential ingredient of one kind of criminal conspiracy as specified in section 120‑A of the Pakistan Penal Code. It is therefore of great importance that the expression should be used and interpreted with particularity. On examining the case we are clearly of the opinion for the reasons already given that the employment of "illegal means,' for personal enrichment has not been established in this case. We accordingly allow this appeal and acquit the appellant.

I have had the advantage of reading in advance the judgment proposed to be delivered by my lord the Chief Justice in this case and have reached the same conclusion as my lord has arrived at, though by a slightly different route. I agree that section 161, Pakistan Penal Code, is not. attracted to the case inasmuch as the petitioner examined a private medico -legal case as he was allowed to do, under the rules and this had no reference to his official capacity and could not be described as an official act. The opposite view that prevailed in the High Court on this point is plainly untenable.

The petitioner, however undoubtedly transgressed Rule 4 (c) of the Rules governing such matters. To my mind the prescription of a specific fee in the rule, by necessary implication prohibited the petitioner from demanding a higher fee. The rule had statutory force being one of the Rules promulgated by the Governor under section 241 of the Government of India Act, 1935 and continued in force by subsequent constitutional instru ments. I also find it difficult to resist the conclusion that the petitioner gained a pecuniary advantage to the extent of Rs. 8 as he charged Rs. 10 by way of fee instead of Rs. 2 as permitted by the Rule. As he obtained this advantage for himself by contravening a statutory rule, I consider that the means adopted could fairly be described as "illegal" as the act was contrary to "law". A statutory rule in my view is included within the generic term "law". The provisions of Art. 224 of the late Constitution would seem to support this view.

It is not necessary that the mere infraction of a rule should amount to the commission of an offence, per se. However the contravention of a statutory rule may become punishable if the Legislature so provides, either in the rule itself or by means of a separate statute. The question, however, is whether clause (d) of subsection (1) of section 5 of the Prevention of Corruption Act covers such a case.

The preamble of Act II of 1947 shows that it is designed to make more effective provision for the prevention of bribery and corruption. In other words, it aims at preserving the purity and integrity of the public services. The scheme of the Act and the provisions of Chapter IX of the Penal Code contain clear indications that they are intended to deal with offences committed with reference to the official character or capacity of public servants, whether the offender be a public servant himself or someone else who either acts as an agent for such public servant or represents that he can influence him in the performance of official acts. Coming to the specific provisions of section 5 of Act II of 1947, that clauses (a) to (c) of sub section (I) of section 5, clearly envisage a nexus between the offence contemplated and the officer concerned or his official functions. Even in clause (d) of that subsection the words "corrupt means" arid "by otherwise abusing his position as public servant", evidence an intention to reach acts which the public servant purports to perform in his official capacity It would not; therefore, be unduly straining the rules of construction to suggest that the words "illegal means" occurring therein should also have some relation to an official act or one purporting to be such an act or the official character or capacity of the public servant as such and his action in a private context would not be covered by this clause. The opening words of the section are "A public servant is said to commit the offence of criminal misconduct----------"These words in my opinion lend support to the view that the acts of a public servant qua public servant are meant to be brought within the enactment. It is not to be imagined that if a public servant commits an offence in his house, having not the slightest connection with his official functions but which illegally enriches him, the Legislature con templated its punishment under this particular Act. I am, therefore, disposed to hold that the act complained of in the present case, not being one which had any relation to the petitioner's official functions or capacity or character is not within the purview of clause (d) of subsection (1) of section 5 of the Act and the appeal should be allowed on this ground.

A. H. Appeal allowed

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