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Criminal Appeal No. 313 of 1961, decided on 21st January 1963.
Ch. XIII, rr. 13.3 (2), 13.1 (3), 13.9 (1), 13.9 (2), 12.1 & 16.1‑Contradictions in rules pointed out for necessary corrective action by appropriate authority.
Muhammad Afzal Khan v. Superintendent of Police, District Montgomery P L D 1961 Lah. 808 and Zafar Ali v. The State P L D 1962 S C 320 ref.
S. 161 and Prevention of Corruption Act (II of 1947), S. 5 (2)‑"Trap" laid to catch bribe taker‑Bribe‑giver not an accomplice‑Weight to be attached to evidence of such person‑Depends on circumstances of each case Evidence Act (I of 1872), S. 133.
Zafar Ali v. The State P L D 1962 S C 320 rel.
Syed Muhammad Zafar for Appellant.
Niaz Muhammad Siddiqui and Sh. Ata Ullah Sajiad, Assistant
Advocate‑General for Respondent.
Dates of hearing: 21st November 1962 and 8th January 1963.
The appellant, Qamar Ali Shah an Assistant Sub‑Inspector of Police, has been convicted under section 5 (2) of the Prevention of Corruption Act read with section 161, Pakistan Penal Code, by Mr. Sher Bahadur Khan, Special Judge, (Provincial) at Rawalpindi, and sentenced to undergo rigorous imprisonment for one year. He was tried along with Police Constable Aurangzeb who was, however, acquitted.
2. The case for the prosecution was that while posted as A. S. I. at Police Station C‑Division of Rawalpindi City, the appellant was entrusted with investigation of a case under section 324, P. P. C. registered on the 19th of June 1960, under F. I. R. No. 91 at the instance of Qadir Bakhsh (P. W. 1). The victim of assault was Anwar Sultan, son of Qadir Bakhsh. After visiting the spot, the appellant is alleged to have demanded a sum of Rs. 150 as bribe from the complainant Qadir Bakhsh for strengthening his case. It is stated that this demand was made by the appellant while sitting in the baithak of one Wahid goldsmith. Qadir Bakhsh pleaded that he was a poor man and could not pay Rs. 150, but he paid a sum of Rs. 50 to the appellant through his relatives Siddiq and Karim. After promising to do the needful the appellant returned to the Police Station. Qadir Bakhsh visited the police station the next day and in spite of his waiting there for the whole of the day no action was taken by the appellant against the accused persons named in the F. I. R. Qadir Bakhsh repeated his visit to the police station again, the next day after that, but no action was taken even on that day by the appellant. Eventually, on the 23rd of June 1960, the accused persons were called to the police station but permitted to go home. Thereupon, Qadir Bakhsh met the A. S. I. and complained that the case was not being properly handled and the accused had been allowed to go away. It is stated that the appellant told Qadir Bakhsh that he had not been paid sufficiently, and demanded Rs. 100 more. Qadir Bakhsh, agreed to pay Rs. 50 more and to bring the money next morning i.e., 24th of June 1960. Qadir Bakhsh informed A. S. I. the next morning that the money had been arranged, and it was agreed between the appellant and Qadir Bakhsh that the appellant would come to the house of Qadir Bakhsh that evening, have his meals there and receive the money.
3. Qadir Bakhsh mentioned the arrangement to Subedar Kala Khan, who is a relative of his, and lives in the same mohalla. This man advised Qadir Bakhsh to report the matter to the Special Police Establishment. In pursuance of this advice Qadir Bakhsh went to the office of the Special Police Establishment where Inspector Qamar‑uz‑Zaman (P. W. 4) recorded his statement Exh. P. A. After registering a case with the permission of the D. S. P. the Inspector requested the A. D. M., Rawalpindi, to depute a Magistrate to supervise the raid. The A. D. M. nominated Mr. Iqbal Javed (P. W. 2) a Magistrate of the First Class, for this purpose. Qadir Bakhsh was produced before the Magistrate and once again his statement was recorded by the Magistrate, which is Exh. P. B. at 6‑30 p.m. Five currency notes of Rs. 10 each were given to Qadir Bakhsh after their numbers having been recorded by the Magistrate. The raiding party proceeded to the house of Qadir Bakhsh, reaching there at about 7 p.m. It was arranged that the appellant would be served meals in a room which had two doors one opening in the street and the other in the deohri of, the residential portion of the house.
4. It is alleged that the appellant came to the house of Qadir Bakhsh at 9 p.m., accompanied by the acquitted accused F. C. Aurangzeb. He was conducted into the room through the door which opens in the street, and took his seat on a chair. The meal was served to him on a table placed in front of him, while the constable was served on a charpoy lying in the room. Qadir Bakhsh then handed over the five currency notes to the appellant and requested him to make his case strong. The appellant took the money and then gave the notes to Aurangzeb Constable asking him to count them. The constable counted the notes and informed the A. S. I. that they were for Rs. 50 and handed them over back to the appellant A. S. I. At this stage, the com plainant Qadir Bakhsh is said to have informed the raiding party about the money having passed, whereupon the Magistrate pushed, open the door in the deohri and entered the room. The Magistrate got the person of the appellant A. S. I. searched, but no money was found. The Magistrate then lifted a small cushion lying on the charpoy, and found the notes underneath.
On the top of the cushion the cap of the A. S. I. was lying. The Magistrate interregated both the accused persons and prepared raid report Exh. P. O. The appellant was arrested at the spot.
5. The appellant pleaded not guilty at the trial and denied all the allegations. He stated that he had been falsely implicated due to the reason that he had refused to accede to two illegal requests on the part of Qadir Bakhsh, namely, (a) to convert the case registered under F. I. R. No. 91 into one under section 307, P. P. C. instead of 324, P. P. C. and (b) to implicate two innocent persons whose names had not been mentioned by Qadir Bakhsh in the F. I. R. He stated that his refusal had annoyed Qadir Bakhsh who had threatened to deal with him. He gave a further reason for his false implication by the Special Police Establishment by saying that three or four days before the raid he had been entrusted with the investigation of a complaint of one Muhammad Aslam, against two Sub‑Inspectors, Safi‑ud‑Din and Ghulam Haider, and some other officers of the Special Police Establishment, and that he had reported against these officers. He asserted that the officers of the Special Police Establishment had asked him to prosecute Muhammad Aslam for giving false information, but he had refused to do so.
6. As regards the recovery of the tainted money, the position taken up by the appellant at the trial was that it was correct that the notes in question had been found lying under neath the cushion on the charpoy, but he could not say who had placed them there. In defence, the appellant summoned Fida Hussain H. C. (D. W. 1) to produce the complaint of Muhammad Adam against the officers of the Special Police Establishment, and the report made thereon by the appellant. These documents are Exh. D. A. and D. B. Another defence witness, namely, Abdul Aziz, Naib‑Moharrir of the Police Station, was summoned by the acquitted accused Aurangzeb to show that he was present at the Police Station on the day of the raid.
7. Before I proceed to discuss the evidence in the case, a preliminary objection raised by Mr. S. M. War, the learned counsel for the appellant, as regards the validity of the sanction accorded by the Superintendent of Police for the prosecution of the appellant, may be disposed of. It is contended that the appel lant, who was serving as a Head Constable in the Gujrat District was appointed as officiating A. S. I. of Police in the Rawalpindi District by the Deputy Inspector‑General of Police, Rawalpindi Range, by his order dated the 9th of October 1958, with the result that in his case the authority competent to remove him would be the D. I. G. and not the Superintendent of Police, Rawalpindi. The contention is sought to be supported by reference to Muhammad Afzal Khan v. Superintendent of Police, District Montgomery (P L D 1961 Lah. 808), in which the question involved was regarding the authority competent to appoint and remove a probationary A. S. I., who was recruited direct to that post. It was pointed out by the learned counsel that in pursuance of a Notification issued by the Provincial Government on the 14th of April 1956, under subsection (5) of section 5 of the Pakistan Criminal Law Amendment Act 1948, which Notification has been continued under the Pakistan Criminal Law Amendment Act of 1958, the power to sanction prosecution of a public servant serving in the Province may be exercised on behalf of the Provincial Government by an officer competent to remove such public servant from office; and as in the present case the appellant was appointed as officiating A. S. I. by the Deputy Inspector‑General of Police he could not be removed from office by an authority lower than the D. I. G., with the result that the sanction for his prosecution accorded by the S. P. Rawalpindi was invalid and vitiated the whole trial.
8. As the point raised by Mr. S. M. War was of con siderable importance, and a decision thereon was likely to affect not only this particular case, but also other cases of a similar nature, I issued notice to the Advocate‑General to assist the Court in this behalf. Mr. Ata Ullah Sajjad, the learned Assistant Advocate‑General, accordingly appeared and argued the point on behalf of the State.
9. In order to arrive at a correct understanding of the position in respect of the authority or authorities competent to appoint and remove an officiating A. S. I., it is necessary to refer to the relevant Rules on the subject, as contained in the Punjab Police Rules, 1934. According to Rule 12.1 the authority competent to appoint Sergeants, Sub‑Inspectors and Assistant Sub‑Inspectors is the Superintendent of Police, or Assistant Superintendent Government Railway Police. Similarly according to Rule 16.1 the authority competent to dismiss these categories of officials is the S. P. or the Assistant Superintendent Government Railway Police. If these two Rules were the only rules on the subject, there would hardly be any room for argument, but that is not the case.
10. The question of promotions of Police Officers is dealt with in Chapter XIII of the Punjab Police Rules. Rule 13.1 (1) lays down certain general principles regulating promotions from one rank to another, and sub‑rule (3) of this Rule prescribes that six promotion lists namely, A, B, C, D, E and F shall be maintained. Lists, A, B, C and Dare to be maintained in each District. Out of these, list "D" is intended to contain the names of Head Constables who are considered suitable for promotion to the rank of A. S. I. As already stated, the appellant before me belongs to this category. Rule 13.3 prescribes the authorities competent to make promotions. According to sub‑rule (1) of this Rule, the power to make promotions among gazetted officers and from non‑gazetted to gazetted rank rests in the Provincial Government with the concurrence of His Excellency the Governor, whereas according to the first paragraph of sub‑rule (2) of this Rule the Deputy Inspectors‑General and the Assistant Inspector‑General, Government Railway Police shall make promotions to the rank of Inspector, and the Inspector‑General, who maintains promotion list "F", vide Police Rule 13.15, of Sub‑Inspector and Sergeants, will notify the Deputy‑Inspector‑General of Range or the Assistant Inspector‑Central, Government Railway Police, when a substantive vacancy in the rank of Inspector is to be filled by an officer under his control. The second paragraph of sub‑rule (2) of Rule 13.3 deals with promotions to the rank of Sub‑Inspectors and Assistant Sub‑Inspectors and prescribes that substantive promotions to these ranks shall be made by Superintendents of Police and the Assistant Superintendent, Government Railway Police. It goes on to add that Deputy Inspectors‑General of Ranges, who maintain promotion lists D and E for these two ranks in the case of District Police, will notify the Superintendent of Police of a District when a vacancy in either rank is to be filled by an officer in his District.
11. Then comes Rule 13.4 which deals with the power to make officiating promotions. According to sub‑rule (2) thereof, officiating promotions to the rank of Sub‑Inspector and Assistant Sub‑Inspector shall be made by Superintendents of Police and Assistant Superintendent, Government Railway Police. It is further laid down that if the flow of promotion is unevenly distributed among districts, the Deputy Inspector‑General shall make suitable transfers of Assistant Sub‑Inspectors and Head Constables on the promotion lists from one district to another. Sub‑rule (3) of this Rule contemplates that all promotions concerning upper subordinates made under this Rule shall be published in the Police Gazette, and Notification by Superin tendents shall be sent in through the Deputy Inspectors‑General, who shall have the power to revise such orders on recording reasons in each case. It is also added that if any Superintendent has not enough men on lists D and E in his district to fill temporary appointments in either rank, which he is required to make, he shall apply to the Deputy Inspector‑General for a man from another district.
12. The next Rule relevant for our present purpose is Rule 13.9. It will be useful to reproduce this rule in extenso :‑
(1) A list shall be maintained in each district in card index Form 13.9 (1) of those head constables who have passed the lower school course and the intermediate school course at the Police Training School and are approved by the Deputy Inspector‑General as eligible for officiating or substantive promotion to the rank of Assistant Sub‑Inspector. No head constable shall be admitted to this list who is not thoroughly efficient in all branches of the duties of a constable and head constable and of established integrity.
(2) Officiating promotion to the rank of Assistant Sub -Inspector shall be made from the list prescribed in sub‑rule (1), as far as possible in rotation, so as to give each man a trial in the duties of the higher rank. Substantive promotion shall be made by the Deputy Inspector‑General in accordance with the principles prescribed in rule 13.1, and officiating promotion shall be made in accordance with sub‑rule 13.4 (2).
(3) Half‑yearly reports in Form 12.9 (3) on all head constables in this list shall be furnished on the 15th March and the 15th September to the Deputy Inspector‑General."
13. It will be seen that according to Rule 13.9 list D" from which promotions of Head Constables are made to the rank of officiating Assistant Sub‑Inspector, is to comprise those Head Constables who have passed the lower school course and the intermediate school course at the Police Training School, and are approved by the Deputy Inspector‑General, as eligible for officiating or substantive promotion to the rank of Assistant Sub‑Inspector. Again, according to sub‑rule (2) of Rule 13.9, substantive promotion to the rank of A. S. I. is to be made by the D. I. G. in accordance with the principles prescribed in Rule 13.1. The last part of the last sentence in sub‑rule (2) of Rule 13.9, namely, "and officiating promotion shall be made in accordance with sub‑rule 13.4 (2)", was sought to be interpreted by Mr. S. M. War as laying down that officiating promotion, like substantive promotion mentioned earlier in this sub‑rule, was also to be made by the D. I. G., but I do not think that these words are capable of this interpretation. On a plain reading of the second sentence appearing in sub‑rule (2) of Rule 13.9, it is clear that what is intended to be laid down is that substantive promotion to the rank of A. S. I. shall be made by the D. I. G., whereas officiating promotion shall be made in accordance with sub‑rule 13.4 (2). The authority competent to make such officiating promotion is not specified in this sub‑rule, and we are referred to sub‑rule (2) of Rule 13.4 in this connection, which confers the power on the Superintendent of Police.
14. It will be observed that there is a contradiction between sub‑rule (2) of Rule 13.9 and the second paragraph of sub‑rule (2) of Rule 13.3, inasmuch as the former contemplates that substantive promotion to the rank of A. S. I. shall be made by. the D. I. G., whereas the latter, as already stated, in an earlier part of this judgment, clearly lays down that substantive promotion to the rank of Sub‑Inspector and Assistant Sub‑Inspector shall be made by the Superintendents of Police. However, this contradiction has no effect in the instant case, as we are dealing with the case of officiating promotion only.
15. A perusal of the Rules referred to above shows that according to all the Rules which have a bearing on the point, namely, Rules 13.4 (2), and 13.9 (2), officiating promotions of Head Constables to the rank of Assistant Sub‑Inspectors are to be made by the Superintendent of Police from list "D", which is to consist of Head Constables who have passed certain exami nations, and who are approved by the D. I. G. as eligible for officiating or substantive promotion to the rank of A. S. I. The question is whether the condition relating to the Deputy Inspector‑General's approval, as mentioned in Rule 13.9 (1), can e interpreted as meaning that by virtue of according his approval to the inclusion of Head Constables in list "D", the D. I. G. becomes the appointing authority when these Head Constables are actually promoted to officiate as Assistant Sub -Inspectors: ‑
16. It was contended by the learned counsel for the appellant that the D. I. G.'s approval being a condition precedent for the eligibility of a Head Constable to be included in list "D", and to be subsequently promoted as officiating A. S. I., it is clear that the Superintendent of Police, acting by himself, could not be considered to be the appointing authority in such a case. In support of his contention, the learned counsel referred to certain observations, made by the Bench, of which I was a member in P L D 1961 Lah. 808. That was a case of a person, who was directly recruited as a probationary A. S. I., and was governed by Rules 12.7 and 12.8 of the Punjab Police Rules. According to Rule 12.7 a list of accepted candidates for direct appointment to the rank of Assistant Sub‑Inspectors is to be maintained in the office of each Deputy Inspector‑General in form 12.7 (1), and appointments are to be made by selection from this list. Rule 12.8 lays down that Inspectors, Sergeants, Sub- Inspectors and Assistant Sub‑Inspectors, who are directly appointed, will be considered to be on probation for three years and will be liable to be discharged at any time within the period of their probation, if they fail to fulfil certain require ments. This Rule goes on to say that a probationary Inspector shall be discharged by the Inspector‑General, and all other upper subordinates by Range Deputy Inspector‑General etc. The term "upper subordinate" is defined in Rule 1.13 as including all enrolled Police Officers of and above the ranks of Assistant Sub‑Inspector. In the case before the Bench, Muhammad Afzal Khan, who was directly recruited as a probationary Assistant Sub‑Inspector had been removed during his period of probation by a Superintendent of Police, and the contention raised before us was that as he had been appointed by the Range Deputy Inspector‑General under Rule 12.7, and as he could be removed only by the D. I. G. under Rule 12.8, his removal by the Superintendent of Police was illegal. Our decision rested primarily on the fact that Rule 12.8 clearly laid down that a directly recruited probationary A. S. I. was liable to removal by a D. I. G. and not by an S. P. However, we also considered the question as to whether in accordance with Rule 12.7 the appointment had been made by the D. I. G. or the S. P. The procedure followed was that the D. I. G. had issued an order in the first instance offering the post of A. S. I. to the petitioner in that case, and the appointment had then been published in the Police Gazette by the S. P. of the District concerned. While dealing with this question, my learned brother Shabir Ahmad, J., who delivered the judgment of the Bench, made the following observations :‑
"It was because of what is said in Police Rule 12.7 that before the Superintendent of Police, Multan, passed a formal order appointing him an Assistant Sub‑Inspector of Police, the petitioner was informed by the Deputy Inspector‑General of Police, Multan Range, by means of the letter dated the 10th of March 1956, which has been placed on the record by the petitioner and which has been reproduced in paragraph 3 that he was being offered the post of Assistant Sub‑Inspector of Police and if he accepted the offer he should present himself before the Superintendent of Police, Multan. As the rules stood, at the relevant time, a person could not be directly appointed by a Superintendent of Police as an Assistant Sub Inspector of Police unless his name were borne on a register of approved candidates maintained by the Deputy Inspector‑General of Police and in these circumstances I cannot accept the contention of learned counsel for the respondents that the appointment of the petitioner as an Assistant Sub‑Inspector of Police had been made by the Superintendent of Police, Multan, and not by the Deputy Inspector‑General of Police, Multan Range. It is true that the order which purports to be an order of appointment was made by the Superintendent of Police, but it is undeniable that if the Deputy Inspector General of Police had not declared the petitioner to be a fit person for appointment as an Assistant Sub‑Inspector of Police directly, the Superintendent of Police, Multan, would have been incompetent to appoint the petitioner to that post. It should be borne in mind that while a Superintendent of Police could not issue orders in an administrative matter to the Deputy Inspector‑General of Police in whose Range he was working, it can hardly be doubted that he would be bound by the orders of a Deputy Inspector‑General of Police in administrative matters. In view of all this, I am of the view that the appointment of the petitioner as an Assistant Sub -Inspector of Police could not in law be deemed to have been made by the Superintendent of Police, Multan, and that the worst that could be said against the petitioner in this connection is that the appointment seas made partly by the Superintendent of Police, Multan, and partly by the Deputy Inspector‑General, of Police, Multan. It follows, therefore, that if the termination of the services of the petitioner in the present case amounts either to removal or dismissal from service, the impugned order of the Superintendent of Police, Montgomery was passed by an authority lover in rank than the one that had made the appointment."
17. After making these observations we proceeded to observe that the impugned order ref the Superintendent of Police, Montgomery, was clearly in contravention of Rule 12.8 which stipulated that a probationary Assistant Sub‑Inspector of Police could not be discharged from service during the period of his probation by an officer other than the Deputy Inspector‑General of Police in whose range he was working.
18. In the present case before me, as already stated, an order was first issued by the Deputy Inspector‑General of Police, Rawalpindi Range, on the 9th of October 1958, in the following words :‑
"The following A. S.‑Is. on list E' and Head Constables on list D' of this Range are promoted to officiate as Sub‑Inspectors and Assistant Sub‑Inspectors of Police till further orders in the vacancies noted below and are posted to districts mentioned against their names. Their promotions will take effect from the date they take charge to their new duties."
The name of the appellant Qamar Ali appears at serial No. 5, ‑ in the body of the order. Then there is an endorsement in the following words :‑
"Copy forwarded for information and necessary action to:-
(1) All S. Ps. in the Rawalpindi Range. Necessary Gazette Notification will be issued by them , . . , ,"
19. It appears that in pursuance of this endorsement, the. Superintendent of Police, Rawalpindi, issued a Gazette Noti fication in the following words:‑
"Police Department Rawalpindi District
For publication in Police Gazette Part II. Orders by the Superintendent of Police. Dated Rawalpindi, the 31st October 1958.
No. 3364‑HC/Promotion: The following Assistant Sub -Inspectors on List E' and Head Constables on List D' are promoted to officiate as Sub‑Inspectors and Assistant Sub Inspectors respectively. The nature of vacancy and date of promotion are noted against their names :‑
| Sl. No. | Name of officer promoted: | Nature of vacancy: | Date of promotion
|
| 1. | --- | --- | --- |
| 2. | --- | --- | --- |
| 3. | --- | --- | --- |
| 4. Offg. A. S: I. Qamar Ali Shah No. 498/Gujrat. | Vice A. S. I. Ahmad No. promoted as S. I. | Shafiq 49/R offg
| 27‑10‑58." |
A copy of this Notification was endorsed to the Deputy Inspector -General of Police, Rawalpindi Range, for information and necessary action, with reference to his endorsement of the 9th of October 1958.
20. It will be observed that while there is a similarity between the instant case and that of Muhammad Afzal Khan referred to above, inasmuch as that in both the cases initial orders were issued by the Deputy Inspector‑General of the Range, concerned, the similarity is merely one of form and not of substance. In Muhammad Afzal Khan's case the Court was dealing with Rules 12.7 and 12.8. According to Rules 12.8 and 12.7 the list of approved candidates has to be maintained by the Deputy Inspector‑General, and according to Rule 12.8 the removal of a directly recruited probationary A. S. I., could only be ordered by the D. I. G. but in the present case list D', from which promotions of Head Constables to the rank of officiating Assistant Sub‑Inspectors are made, is to be maintained presumably by the Superintendent of Police in each district, as laid down in Rule 13.1 (3). As lists A, B, C and D are kept in each district, therefore, in the several districts, which comprise a range under the control of a Deputy Inspector‑General, there will not be one but several lists D', prepared by each Superin tendent of Police.
21. Further, as regards the power to appoint a directly recruited probationary A. S. I., there is no other mention in the police Rules apart from Rule 12.7, which contemplates the maintenance of a list of approved candidates by the D. I. G., but in the case of ordering officiating promotion of a head constable, whose name is borne on list D' maintained by each Superintendent of Police, there are several rules directly stating that such promotion is to be made by the Superintendent of Police of the district concerned, namely, Rules 13.4 (2) and 13.9 (2). According to Rule 13.3 (2) even substantive promotion to the rank of A. S. I. is to be made by the S. P. It seems to me, therefore, that the decision in Muhammad Afzal Khan's case to which I was a party, is clearly distinguishable and has no direct application to the instant case.
22. There is no doubt that before the name of a head constable can be included in list D' maintained by the Superin tendent of Police, one of the requirements to be fulfilled by him is that he should be approved by the D. I. G. as being eligible for inclusion in this list, but this requirement of previous approval of the D. I. G. does not, to my mind, have the effect of taking away the powers vested specifically in the Superintendent of Police by the relevant Rules mentioned above. Whatever the procedure laid down for the preparation of list D', the Rules clearly contemplate that once list D' has been prepared, officiating promotions from that list shall be ordered by the Superintendent of Police. The latter officer, therefore, remains the appointing authority in the case of officiating Assistant Sub‑Inspectors, irrespective of the fact that he had to obtain the prior approval of the D. I. G. at the time of preparing list D'. The fact that it is the Superintendent of Police who is the appointing authority in such a case emerges not only from Rules 13.3 (2), 13.4 (2) and 13.9 (2), already mentioned, but also from Rule 13.4 (3) which deals with the publication of Notifications in the Police Gazette by the Superintendent of Police, and contemplates further that such Notifications shall be sent in through the D. I. G., who shall have the power to revise such orders on recording reason in each case. This power of revision vested in the D. I. Gr. clearly shows that initial orders have to be made by a lower authority, namely, the Superintendent of Police.
23. It is true that in the present case, an order was issued in the first instance by the D. I. G., purporting to be an order promoting the appellant from the rank of Head Constable to that of an officiating A. S. I., but it seems to me that this order was made in order to give effect to the directions contained in the concluding portion of sub‑rule (2) of Rule 13.4. The opening part of this sub‑rule says that officiating promotions to the rank. of Sub‑Inspector and Assistant Sub‑Inspector shall be made by the Superintendent of Police, and Assistant Superintendent. Government Railway Police, and the second part lays down that "if the flow of promotion is un-evently distributed among districts the Deputy Inspector‑General shall make suitable transfers of Assistant Sub‑Inspectors and Head Constables on the promotion list from one district to another." It has already been stated that the appellant was serving as a Head Constable in the Gujrat District, and was promoted to officiate as Assistant Sub‑Inspector in the Rawalpindi District. It was, therefore, an inter‑district transfer, and was rightly made by the D. I. G. but once the appellant was transferred to the Rawalpindi District, the appointing authority was the Superintendent of Police of that District. It is for this reason that the order issued by the Superintendent of Police of the Rawalpindi District, as re‑produced in paragraph 19 supra, is an independent order directing the promotion of the appellant and others to the next higher rank. Thus according to the rules, the order of the D. I. G. appears to me to be nothing more than an order of transfer of certain officials from one District to another, irres pective of the phraseology used in that order.
24. A somewhat similar question came up for consideration before their Lordships of the Supreme Court in Zafar Ali v. The State (P L D 1962 S C 320). The following passage, appearing on page 327 of the report is directly relevant in the present context :‑
"The contention on behalf of the appellant is that it is the Chief Engineer who should be regarded as the authority that has made the appointment in this case, for whatever has been done by the Principal and the Superintending Engineer has been done under the directions of and in obedience to the orders of the Chief Engineer. We are quite prepared to accept that the Superintending Engineer and the Principal (Government School of Engineering, Rasool) have acted only in obedience to the directions of the Chief Engineer but this, in our opinion, is not conclusive for determining the authority that makes the appointment. The Chief Engineer may give directions to a subordinate of his to make an appointment. If that subordinate has authority otherwise to make that appoint ment the appointment will still be deemed to have been made by him and not by ‑the Chief Engineer. It is possible to conceive even of a case where the Chief Engineer says explicitly that he is not making the appointment and that he is directing his subordinate to make one because he has power to do so. In such a case the appointing authority will not be the Chief Engineer . . . . .
It may have been possible to hold if directions for appoint ment had been given by the Chief Engineer to a person who himself had no authority to make an appointment that an appointment made in accordance with the orders of the Chief Engineer should be regarded as having been made by him. This interpretation will perforce have to be put on the action of the Chief Engineer and of the person acting in obedience to his orders if the appointment is not to be invalidated. In such a case one could say that if an appointment results from the directions of the Chief Engineer it is the act of the Chief Engineer. But if the person to whom directions are being given has authority himself to make the appointment, to put such a forced construction on the orders that are passed does not become necessary and the person who actually makes the appointment should be regarded as the appointing authority."
25. The principle laid down by their Lordships in the observations just quoted, applies with full force in the present case. The promotion list D' is maintained by the Superintendent of Police, and the Rules in question specifically give him the power to make officiating promotion of the approved Head Constables to the rank of Assistant Sub‑Inspector, and therefore, even if any orders are issued, in the first instance, by the Deputy Inspector‑General of the Range, the promotion must be regarded as having been made by the Superintendent of necessary orders in accordance with the Rules. He being the Police, if he also issues the competent authority to order the promotion, any direction or orders issued by his superior cannot be regarded as having the effect of changing the appointing authority. As already stated, the orders issued by the D. I. G. have to be regarded more in the nature of transfer orders so as to ensure an even flow of promotions as between the various districts comprised in the Deputy Inspector‑General's Range, as contemplated in Rule 13.4 (2). Finally, according to Rules 12.1 and 16.1 Superintendent of Police is specifically designated as the appointing and removing authority in the case of an A. S. I. For all these reasons, I consider that in the case of an officiating A. S. I., like the appellant, the appointing authority, as well as the authority competent to order removal, is the Superintendent of Police. Accordingly the sanction for the prosecution of the appellant accorded by the Superintendent of Police, Rawalpindi, is in order.
26. Before I part with this aspect of the case, I would like to observe that there seem to be certain contradictions in the Police Rules which have come under consideration in the present' case, and it may be well to draw the attention of the appropriate authorities to this matter, for any corrective action they may deem necessary in this behalf. The contradictions noted by me are the following:-
(a) Rule 13.1 (3) prescribes that lists A, B, C and D shall be maintained in each District (presumably by the S. P.) and the same position is repeated in Rule 13.9 (1), but in the last part of second paragraph of sub‑rule (2) of Rule 13.3, the following words appear :‑
"Deputy Inspectors‑General of Ranges, who maintain promotion lists D' and E' . . . .".
It seems that this statement regarding the D. I. G's. maintaining promotion list D' is in conflict with the provisions of Rules 13.1 (3) and 13.9 (1).
(b) According to the second paragraph of Rule 13.3 (2). substantive promotions to the rank of Sub‑Inspector and Assistant Sub‑Inspector shall be made by the Superintendent of Police, and the Assistant Superintendent of Government Railway Police, whereas the last sentence of sub‑rule (2) of Rule 13.9 appears to lay down that substantive promotion to the rank of A. S. I. shall be made by the D. I. G. I have already referred to this contradiction in paragraph ; 4 supra of this judgment.
(c) The rule regarding substantive promotion to the rank of A. S. I., as embodied in sub ‑rule (2) of Rule 13.9, also appears to be in conflict with the provisions of Rule 12.1 and Rule 16.1 in accordance with which the appointing and the dismissing authority in the case of Assistant Sub‑Inspectors of all categories is the Superintendent of Police.
27. Reverting to the facts of the case, I find that the appellant, when examined under section 342 of the Criminal Procedure Code, admitted that he was arrested by the Magistrate, Iqbal Junaid (P. W. 2), from the baithak of the complainant Qadir Bakhsh. He, however, asserted that although the meal had been placed before him, he had not yet started taking it. He also admitted that currency notes in the sum of Rs. 50 were found lying underneath a cushion of the charpoy, but he could not say who had placed them there. Of course, he also admitted that he: was investigating the case bearing F. I. R. No. 91, dated the 19th of June 1960, relating to the assault on the son of Qadir Bakhsh complainant. Now, the question is what was the appellant doing in the baithak of Qadir Bakhsh at about 9 p.m. on the day in question, and further, whether the notes in question were planted under the cushion by Qadir Bakhsh or some other person so as to falsely implicate the appellant.
28. It was argued by Mr. S. M. Zafar, the learned counsel for the appellant, that the latter had gone to the house of Qadir Bakhsh in order to complete the investigation of the case, and to record the statement of a female witness. The argument is certainly ingenuous, but without substance. No doubt, in his statement made before the Magistrate at the time of his arrest, the appellant did state that he had come to complete the investigation of the case, but it is surprising that the appellant had not brought the relevant papers with him. It is nowhere the case of the appellant, nor was my attention drawn to any material on the record in this behalf, that at the time of his arrest the appellant had with him the papers relating to the case he was investigating. If the appellant had indeed gone to the house of Qadir Bakhsh for completing the investigation of the case in question and for recording the evidence of some of the witnesses who had not appeared earlier, it is only natural to expect that the appellant would have at least carried with him the investigation papers of the case. Further, the appellant did not indicate the names of the witnesses whom he had gone to examine at the house of Qadir Bakhsh ; and finally, if indeed he had gone only to examine certain witnesses, it is not understood why the moment he arrived in the baithak, the evening meal was placed before him. All these circumstances leave no doubt in my mind that the appellant had not gone to the house of Qadir Bakhsh on an official visit to complete the investigation of the case, but that he had gone there clearly in pursuance of an arrangement arrived at between him and Qadir Bakhsh to the effect that the appellant would have his evening meal in the house of Qadir Bakhsh and also receive the money. This conclusion is further strengthened by the fact that if, as alleged by. the appellant, Qadir Bakhsh was annoyed with the appellant, and had threatened him earlier that he would complain against the appellant, then there was absolutely no reason for the appellant to visit the house of Qadir Bakhsh at such a late hour, namely, 9 p.m., without any official papers. The appellant would have been the last person to sit down to a meal in the baithak of Qadir Bakhsh, under these circumstances. It is also in evidence that even the foot constable Aurangzeb had been served with the evening meal, while sitting on the charpoy in the same baithak.
29. The contention of the learned counsel for the appellant that Qadir Bakhsh was inimical to the appellant for the reasons that the appellant had refused to convert the case into one under section 307, P. P. C. instead of 324, P. P. C. and to implicate two innocent persons, seems to have no substance in view of the very friendly visit which the appellant had agreed to pay to the house of Qadir Bakhsh at 9 in the evening. The further contention that this case is due to the enmity of the officers of the Special Police Establishment, against whom the appellant had investigated a complaint and recommended action, similarly does not seem to me to have any force, for the reason that Inspector Qamar‑uz‑Zaman (P. W. 4) of the Special Police Establishment, who has investigated the present case, has played no part in luring the appellant to the house of Qadir Bakhsh. There is no doubt that he arranged the trap and secured the services of a Magistrate to supervise the raid, but the initiative was taken by Qadir Bakhsh and not by any officer of the Special Police Establishment. The fact that the appellant must have demanded illegal gratification from the complainant Qadir Bakhsh also emerges from the evidence of Inayat Muhammad (P. W. 3), who is a relation of Qadir Bakhsh and in the marriage of whose son Wazir Sultan, the son of Qadir Bakhsh, had sustained injuries which were the subject‑matter of the criminal case under investigation with the appellant. This witness was declared hostile at the trial and allowed to be cross‑examined by the prosecution. He admitted that Qadir Bakhsh had told him that the appellant had demanded Rs. 150 as illegal gratification. He further admitted that Qadir Bakhsh has told him that he had already paid Rs. 50 to the appellant through Fazal Karim, and that in his presence the appellant had told Qadir Bakhsh not to worry and that he would make the case strong. These admis sions of Inayat Muhammad, who is no doubt relating to Qadir Bakhsh but tried to help the appellant at the trial, do go to show that the visit of the appellant to the house of Qadir Bakhsh on that evening was not an official visit, but clearly in furtherance of his demand for illegal gratification.
30. As regards the actual passing of the money, and the purpose for which it was passed, there is, in the first instance, the evidence of Qadir Bakhsh. I have already observed that there is no question of any enmity or ill‑will on the part of Qadir Bakhsh against the appellant, except that Qadir Bakhsh was anxious that the criminal case registered by him should pro ceed expeditiously, and for that reason he was willing to meet, as far as possible, the illegal demands made upon him by the appellant.
31. It was urged that the position of Qadir Bakhsh was that of an accomplice and, therefore, no reliance should be placed on his testimony. In this connection it is sufficient to cite the latest observations of their Lordships of the Supreme Court made in the case of Zafar Ali v. The State, to which a reference has already been made. On page 328 of the report Kaikaus, J., who delivered the judgment of the Court, has observed as follows :‑
"An accomplice is a person who in fact participates in the commission of an offence, and not one who is simply party to a scheme for the detection of a crime. This position appears to be accepted in all cases decided in pre‑partition India, England and America . . . . ."
32. Again, after quoting certain passages from standard works on the Law of Evidence, his Lordship proceeded to remark as follows :‑
"It is not necessary to labour the matter further because an accomplice is obviously a person who takes part in the com mission of an offence. It is true that Courts do not look with favour on the statements of an informer or agent provocateur but they cannot be placed in the class of accomplices and the rule requiring corroboration does not apply to them. What weight is to be attached to the evidence of a particular witness of this category must depend on the circumstances of each case, and no hard and fast rule can be laid down. The Court may having regard to the antecedent or character of a person concerned refuse to act on his uncorroborated testimony but that relates to appreciation of evidence and is not governed by any rule like the one which applies to an accomplice."
33. It will be seen that merely because Qadir Bakhsh has' assisted in the detection of the crime in question, it cannot be said that no reliance should be placed on his evidence. He was subjected to lengthy cross‑examination, and I am of the view that nothing damaging was brought out. His evidence clearly establishes that the appellant came to his house to accept illegal gratification, and that he did in fact do so, and that he was surprised soon after by the raiding party. The evidence of Qadir Bakhsh, however, does not stand alone. It finds ample corroboration in the testimony of Magistrate Iqbal Junaid (P. W. 2), who reached the baithak of Qadir Bakhsh at 7 p.m., and witnesses the arrival there of the appellant accompanied by the acquitted co‑accused foot constable Aurangzeb. When the meal had been placed before the appellant the Magistrate and Inspector Qamar‑uz‑Zaman as well as Inspector Habibur Rahman, who was, however, not produced as a witness at the trial, took up positions in the deohri, near the door opening in the baithak. The Magistrate has stated that he heard Qadir Bakhsh saying that he was a poor man and his work should be done, that he then heard the sound of counting of notes, and also somebody asking in the baithak as to how many notes there were. The Magistrate, then heard the reply by someone that they were in the sum of Rs. 50. Finally he heard Qadir Bakhsh say that he appellant should take his meal. It was at this stage that the Magistrate and Inspector Qamar‑uz‑Zaman entered the baithak from the deohri. It is correct that the Magistrate was not familiar with the voices of the appellant and his companion Aurangzeb; but the evidence makes it clear the only three persons were present in the baithak at that time, namely, the complainant Qadir Bakhsh, the appellant Qamar Ali Shah and the Police Constable Aurangzeb. From the remarks over‑heard by the Magistrate it was not at all difficult to guess as to who was speaking. He obviously recognised the voice of Qadir Bakhsh, and in any case a request to make the case strong could come only from Qadir Bakhsh and not from the constable or the appellant. Similarly the remarks to the effect that the notes should be counted could not come from the complainant, but from the appellant alone. The remarks over‑heard by the Magistrate, and deposed to by him at the trial, leave no doubt in my mind that the money was paid to the appellant by way of illegal gratification. The evidence of the Magistrate on this point is supported by Inspector Qamar‑uz‑Zaman (P. W. 4). He has also deposed that he heard the conversation just mentioned.
34. It has already been mentioned that the money was not recovered from the person of the appellant, but from underneath a cushion which was lying on the charpoy and the cushion was lying the cap of the A. S. I. At the trial, as well as before me, it was strenuously contended that the money have been planted there by the complainant Qadir Bakhsh without the knowledge of the appellant. In the first place, this contention cannot be accepted in view of the clear evidence of the Magistrate, and the Inspector of the Special Police Establishment that they heard the conversation which took place between the three persons present in the room to the effect that the case should be made strong, and that the money should be counted. No question of counting the money could arise if the money was not passed at that time, and if it had already been planted surreptitiously by Qadir Bakhsh under the cushion. There was also same argument that Qadir Bakhsh had stated that the A. S. I. was still holding the money in his hand when the Magistrate and the Inspector, Special Police Establishment entered the baithak, but these two officers did not find the money in the hand of the appellant or any where on his person. On this point I am inclined to agree with the observations of the learned Special Judge that if indeed the money had been planted under the cushion by Qadir Bakhsh, the simplest thing for him would have been to point out to the raiding party the place where the money was, and to assert that it had been placed there by the appellant. Qadir Bakhsh, however, did not make any such assertion. On the other hand, it was the Magistrate, who discovered the money by chance when he lifted the cushion from the charpoy. A reasonable explanation seems to be that having accepted the money, the appellant immediately placed it under the cushion when he was surprised by the raiding party. The cuchion was lying within easy reach of the appellant, from the chair on which he was sitting. After reading through the evidence carefully, I am left in no doubt that this is not a case where the money was planted under the cushion without tire knowledge of the appellant. It is clearly a case of demanding and then accepting illegal gratification and the fact that the money was not found on the person of the appellant, but under a cushion where the appellant had obviously placed it, does not negative the factum of acceptance.
35. For the reasons given above, I would maintain the conviction of the appellant under section 5 (2) of the Prevention of Corruption Act read with section 161, Pakistan Penal Code. The sentence of one year's rigorous imprisonment awarded by the learned Special Judge on the two counts taken together, is not at all excessive. The appeal, therefore, fails, and is dismissed.
K. B. A. Appeal dismissed.
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