P L D 1963 (W (PLP)

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.