P L D 1956 Supreme Court (Pak (PLP)

CORNELIUS, J:-In this appeal by, special leave, the appellant is one Muhammad Farooq who has been convicted under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947. The provisions of section 161, P. P. C. to the extent that they are relevant to the present case, are contained in the following words : "Whoever, being a public servant, accepts or obtains for himself or for any other person any gratification other than legal remuneration as a motive or reward for showing or for bearing to show in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service to any person, with any public servant; as such, shall be punished with imprisonment . . . . . . .". For the purposes of the case, the offence has been assimilated to that of "criminal misconduct" punishable under section 5 of the Prevention of Corruption Act, 1947 by the addition of the following words in the charge, viz. "read with section 5 of the Prevention of Corruption Act". Clause (a) of subsection (1) of section 5 reads as follows :- "A public servant is said to commit the offence of criminal misconduct (a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code." In conformity with this section, section 161, P. P. C. should be "read with" section 5 (1) (a) of the Prevention of Corruption Act rather than as stated in the charge. By subsection (2) of the same section, a punishment is provided for the offence of criminal misconduct which is a great deal more severe than that which may be ordered under section 161, P. P. C. It seems clear that the two offences are identical. Under section 26 of the General Clauses Act, 1897 Muhammad Farooq could have been charged under either or both of the. enactments mentioned above, but could not be punished more than once for the same offence. The conviction by the Special Judge, Shahpur is "for offences made punishable under section 161 of P. P. C. and section 5 of the Prevention of Corruption Act, 1947" and was upheld in the same terms by the learned Single Judge of the Lahore High Court in appeal. Although the sentence awarded is only a year's rigorous imprisonment and a fine, which might have been awarded under either of the two enactments, it seems proper to regard the conviction as falling under section 5, sub section (2) of the Prevention of Corruption Act rather than under section 161, P. P. C. The relevant facts are admitted. Muhammad Farooq was employed as Sales Assistant in the office of the Thal Develop ment Authority at Shahpur. In that capacity he used to deal with land grants made by the Authority, though only on the clerical side. His superior officer namely Ch. Sardar Muhammad, Superintendent described his functions as follows :- "The accused was the Sales Assistant employed under me. He could not get any 'money from any purchaser. He cannot deal with money matters at all. Briefly the duties of the Sales Assistant are to check the clerical work of his branch and pass it on to his higher officers." Muhammad Farooq however, admitted that at the request of Abdul Hakeem, an applicant for a grant of land for which he (Abdul Hakeem) had deposited Rs. 775 as the first instal ment of the consideration, to arrange for the sale of his plot at a premium of Rs. 200, Muhammad Farooq informed a potential purchaser, Din Muhammad, who came to his office and offered him the sum of Rs.

975. As regards Rs. 200 out of this amount, he told Din Muhammad to pay it to Abdul Hakeem direct. His case appears to be that he did not object to receive from Din Muhammad the sum of Rs. 775, and for this amount he wrote out a receipt and left it on his table, when he was called away by the Secretary of the Thal Development Authority. While he was away, Din Muhammad slipped the money, Rs. 975 in all, along with an application asking for transfer of the land in his name, into Muhammad Farooq's desk. The evidence is to the effect that before going to Muhammad Farooq's office on the 24th November 1952 to pay this amount, Din Muhammad had informed the authorities, and they had appointed some police officers as well as a Magistrate to make a raid immediately after the transaction was completed. Upon a signal, .the raiding party appeared and the money was duly found in Muhammad Farooq's desk, at which Muhammad Farooq was standing at the time. As the currency notes had been marked previously by the Magistrate, there was no difficulty in identifying them. They were recovered from an envelope in which was also found an application by Din Muhammad to have the plot in question transferred in his name. The receipt which was issued by Muhammad Farooq was produced by Din Muhammad, and read as follows :- "Received Rs. 775 as advance money for site of shop No. 196 in Bazar of Jauharabad for adjustment pending the approval". The evidence of two defence witnesses may be briefly mentioned. The first Ch. Niaz Ali a retired S. D. O. stated that he was present, at Muhammad Farooq's table when a person whom he did not know, and was not asked to identify, came there and asked Muhammad Farooq to receive a sum of money as the price of a plot. The man was insisting on making the payment and getting a receipt, which Muhammad Farooq was declining to receive or write, when the Secretary sent for Muhammad Farooq and the witness also went with him. He did not see the raid. His evidence is obviously of little value. Muhammad Gulzar, P. W. 2, is partner to Abdul Hakeem and gave evidence of the negotiations prior to the actual transfer of the money. It came out in his evidence that the offer by Din Muhammad was conveyed to Abdul Hakeem and Muhammad Gulzar by the accused Muhammad Farooq. This aspect of the case is more fully explained by Din Muhammad as a prosecuting witness. He was told about the plot being available by the accused himself, and that a premium was being demanded. This was on a visit paid by Din Muhammad to Muhammad Farooq but as for the vendors, it seems that Muhammad Farooq took the trouble to inform them regarding the prospective purchaser by means of a letter. These being the facts, the findings of the learned trial Judge (Special Judge) are as follows. He held firstly that the intending transferors were under obligation not to transfer the plot granted to them by the Government without the consent of the Thal Development Authority in writing and, concluded from this that the transaction entered into by Abdul Hakeem and Muhammad Gulzar was without authority "and was thus illegal and irregular". He held further that Muhammad Farooq being a public servant and not a broker acted irregu larly in negotiating this private transaction and his conduct accepting even the sum of Rs. 775 from thin Muhammad for which amount he issued a receipt, was not honest and above board as it was out of his sphere of duty. With reference to the sum of Rs. 200 the learned Special Judge held that this amount was also accepted by Muhammad Farooq at the same time as the sum of Rs.

775. The learned Special Judge then referred to section 4 of the Prevention of Corruption Act, which lays down that if it is established that a public servant has accepted for himself or for any other person any "gratification (other than legal remuneration) or any valuable thing" it should be presumed that he accepted it as a motive or reward such as is mentioned in section 161, P. P. C. Muhammad Farooq acted outside his sphere of duty when he brought the private parties together, and thus "showed favour to them (i.e. the transferors) in the disposal of the plot in question and realization of any amount over, and above its actual pricey". It was held that the means employed were illegal, and there had been abuse of Muhammad Farooq's position as a public servant which rendered him liable to punishment under section 5 (1) (d) of the Prevention of Corruption Act, 1947. This clause provides that it is criminal misconduct in a public servant if he by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any gratification or pecuniary advantage. In the High Court, the view taken appears to have been that the receipt of Rs. 200 in addition to Rs. 775, and the mention of only Rs. 775 in the written receipt, indicate a personal motive, and that the extra sum was not intended to go to the transferors. As the matter lay. within the sphere of Muhammad Farooq's duties it was thought that Muhammad Farooq "must have demanded and accepted the sum of Rs. 200 by virtue -of the influence which he wielded in obtaining the sanction for this transfer from the Thal Development Authority". It was also thought that as the transferors were disposing of the plot because they lacked the funds necessary to build a shop on it, it was not probable that they were in a position to demand the premium of Rs.

200. Thus it is clear that in the view of the learned Single Judge sitting in appeal, the premium of Rs. 2(,0 was intended as a bribe for Muhammad Farooq himself. The learned Single Judge does not appear to have been impressed by the conclusion of the trial Court that there had been abuse of official position by Muhammad Farooq for he has declared that :- "If the prosecution case was based merely upon the oral testimony of the prosecution witnesses, it ought to have failed in view of the statements of Abdul Hakeem, Din Muhammad and Muhammad Gulzar". It seems to me, however, that these statements taken with the admissions made by Muhammad Farooq himself clearly show that the purchaser whom Abdul Hakeem and Muhammad Gulzar were seeking was found for them at their request by Muhammad Farooq and the existence of this purchase was communicated to them by him, in the form of a letter. In acting thus, Muhammad Farooq made use of his position as a public servant, and of inside information which had come to him in that capacity, and on his own showing he was instrumental in procuring a premium of Rs. 200 for the transferors. There would thus appear to be plainly a case of abuse of official position, accompanied by pecuniary advantage to a private party. The contention has however been raised on behalf of the appellant that he was never charged of the offence described in section 5 (1) (d) of the Prevention of Corruption Act, and that if he had been so charged, he might have been in a position to put forward a defence, or to furnish an explanation sufficient to secure his acquittal. I shall deal with this aspect of the case later. At present I propose to deal with the applica bility of Section 5 (1) (n) of the Prevention of Corruption Act to the facts of the case. On the evidence, it would appear necessary to hold that, while there may be considerable ground for suspicion that Muhammad Farooq was not acting gratuitously in procuring a premium of Rs. 200 for the transferors, it will be safer to find that the premium was accepted on their behalf. The statements of the transferors in this respect tally with those made by Din Muhammad as well as by Muhammad Farooq. The function of Muhammad Farooq in relation to the trans action was to assist in procuring the consent of the Thal Development Authority to the transfer which had beet; negotiated through himself. This would amount to the rendering of as service to both the transferors as well as the purchaser, with certain public servants, namely, the superior officers of the Thal Development Authority having power to approve the transfer. It is not necessary to believe that Muhammad Farooq had in fact the power to render such a service. In this respect the conclusion of the learned Single Judge of the High Court that Muhammad Farooq must have accepted the premium by virtue of the influence which he wielded in obtaining the sanction for this transfer, would appear to go beyond the necessities of the case and to run counter to the evidence of Ch. Sardar Muhammad, Superintendent which has already been introduced above. It is sufficient that he should have represented himself to be capable of rendering such a service, and so much may be inferred from the statements of the transferors as well as the intending purchaser. Under the provisions section 4 of the Prevention of Corruption Act such a conclusion is also admis sible, prima facie, from the fact of acceptance of "gratification (other than legal remuneration) or any valuable thing" by a public servant, for himself or for any other person. The question which now arises for consideration is whether upon the view of the facts which I have accepted, the sum of Rs. 200 can be described as "gratification other than legal remuneration". Undoubtedly, the sum of Rs. 200 ill money is a "valuable thing", and was not a sum to which Muhammad Farooq was entitled by way of "legal remuneration". The latter expression occurs in section 161 of the Pakistan Penal Code, and in the period of about 96 years which have elapsed since that section was passed into law, it does not appear that any definition of this expression has been attempted or achieved other than that contained in an early commentary on the Code by Morgan and Macpherson which runs as follows :- "What is given to a public servant by the Government which he serves or by any person having authority from that Government to give or what is given to him by any person Whosoever, if the Government permits him to accept the gift." (This definition will be found in the Law of Crimes by Ratanlal and Dhirajlal at page 383 of the Eighteenth Edition). But, the question here is as to the character to be placed upon the sum of Rs. 200 received, not for himself but for the transferors, by Muhammad Farooq. The argument has been raised that they were at liberty to sell the rights which vested in themselves at any price which the -prospective purchaser was willing to pay, and consequently there was nothing illegal about their demanding and receiving a premium of Rs.

200. The matter is however not quite so simple as that. There is on the record a copy of the lease purchase agreement which is in use by the Thai Development Authority. This shows that grantees were required to build a bazar shop on the plot granted, and thereafter to use it as a bazar shop and keeping it in a clean and sanitary condition. The total price fixed was Rs. 2.538 of which the first instalment was Rs. 775 and the balance was to be payable by instalments. So long as compliance was made with these conditions, the grantees were secured in peaceful posses sion of the plot, and upon completion of the payments as well as of the building they were entitled to have a sale-deed executed in their behalf by the Thal Development Authority, vesting the ownership of the plot in themselves. Until such time, the grantees undertook not to transfer or lease the land or any part thereof without first obtaining the consent of the Thal Develop ment Authority. At the time when the transfer in the present case was being negotiated none of the obligations of the grantees had been performed by the transferors except the initial payment of Rs. 775, The occurrence in the present case was on the 24th Novem ber 1952 and up to that date no formal agreement had been executed between the parties, although the application for grant of the lease had been made on the 6th May 1952. The obligations regarding building were to commence the work ' within six months and to complete it within eighteen months of the execution of the agreement, and it would seem that neither of these obligations had started to run in the present case. Moreover, it appears from the evidence that the transferors were not in a position, on the date of the occur rence, to perform that obligations and it may well be that in these circumstances the Thal Development Authority may have decided to reject the. application which had been made for the allotment of the plot in question. From this it is clear that, at the time of the alleged transaction in this case, the transferors did not in fact possess any defined rights in they land which they were capable of transferring. In this view of the matter, any sums of money received by them or on their behalf could not be regarded as "legal remuneration". That expression clearly carries the sense of a quid pro quo, and in this case, it is doubtful whether the application for allotment had yet been sanctioned, so that the transferors appear to have owned nothing which they could give in exchange for the money received by the appellant on their behalf. On this view of the matter, the necessity of rendering service appears plainly, together with the fact that any money which was received, that is to the sum of Rs. 775 as well s the sum of Rs. 200, did not partake of the character of "legal remune ration", even as respects the transferors. I am therefore of the opinion that a case has been made out against Muhammad Farooq of an offence of the nature defined in section 5 (1) (a) of the Pre vention of Corruption Act. The other aspect of the case, to which reference has already been made, namely, the abuse of his position by Muhammad Farooq resulting in pecuniary advantage to the transferors may be thought to appear somewhat more plainly. A public servant who makes use of information which he gains in the course of his, public duties to procure advantages for private persons, certainly abuses the position which he occupies. The pecuniary advantage to the transferors is plain. But, it is urged that if such had been the offence charged against Muhammad Farooq, he might have been in a position to raise a defence a g. as was suggested, be might have been able to show that it was a part of his duty to promote settlement of the area by assisting in procuring intending grantees who would be prepared to carry out the directions of the Thal Development Authority. The force of the argument is minimised by the evidence of Ch. Sardar Muhammad, Superintendent. He was called specially for the purpose of obtaining from him a definitive statement of the functions of the Sales Assistant, in order to determine to what extent the acts alleged against the appellant exceeded those func tions. If the promotion of sales in the manner suggested by Mr. Mahmud Ali had in fact been one of his functions, there need be no doubt that it would appear either as the result of a direct question in cross-examination of, or at any rate, could have been a matter of inference from the description of the functions given by Ch. Sardar Muhammad. Neither condition appears on the record, and indeed, the suggestion of Mr. Mahmud Ali goes so far beyond the natural probabilities arising out of the position of the Sales Assistant in a Government Office, holding merely a clerical position, that it must be deemed to be purely speculative, and consequently not worthy of serious consideration in regard to the question of the due administration of justice in the case. Having regard to the nature of the evidence led on both sides, and the wide scope of the facts elicited from the witnesses by examination, and cross-examination, there is, in my opinion, no doubt that an imputation of abuse of official position was being pressed against Muhammad Farooq throughout the proceedings. The law is clear that where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged in respect of a single act or series of acts, then; subject to absence of prejudice, the accused may be convicted of the offence which he is shown to have committed, although he was not charged with it. On the present record. I find it impossible to say that there has been prejudice Accordingly, even if I were not as clear in my mind as I am, that an offence under section 5 (1) (a) of the Prevention of Cor ruption Act has been established, I would be prepared to uphold the conviction under section 5 (2) Previous of Corruption Act, on the ground that, at any rate, an offence under section 5 (1) (d) of that Act has been established. For these reasons, I would dismiss this appeal. MUHAMMAD MUNIR, C. J.-I, agree. MUHAMMAD SHARIF, J.-.I agree. SHAHABUDDIN, J.-I would dismiss this appeal on the ground that the appellant's action amounts to an offence under section 5 (1) (d) of the Prevention of Corruption Act. It is true that the appellant was not charged of the offence described in the above provision but section 237, Criminal P. C. clearly applies to this case. Having regard to the facts for the prosecution and the defence set up, the appellant cannot be said to have been pre judiced on account of a charge under section 5 (1) (d) not having been drawn up against him. A. H. Appeal dismissed.