P LD 1956 (W (PLP)

Dates of hearing: 23rd February 1956 and 19th March 1956. RAHMAN, C. J.‑Khalid Waheed and Badr‑e‑Alam were convicted under section 162 P. P. C. and section 5 of the Prevention of Corruption Act, 1947, and each one of them was sentenced to one year's rigorous imprisonment on each count, (the sentences to run concurrently), by Mr. A. U. Qureshi, Special Judge, Punjab. An appeal has been preferred on their behalf through counsel. The relevant facts are that the Co‑operative Multi purposes Society, Multan, had its income‑tax and sales‑tax assessment cases pending with the Income‑tax Officer, Companies Ward No. 1, Lahore, from the year 1950‑

51. The two appellants were employed in the Office of the said Income -tax Officer, Khalid Waheed being the record keeper in respect of the income‑tax cases and Badr‑e‑Alam the record keeper pertaining to cases of sales tax. It was alleged that these two persons demanded illegal gratification from Mushtaq Hussain (P. W. 1), the Manager of the Society, on the understanding that by this means they would ensure speedy disposal of the cases and the assessment would also be reduced to a reasonable figure through their influence with the Income‑tax Officer. Mushtaq Hussain conveyed this information to the accountant of the Society, Iftikhar Hussain (P. W. 3). Both these officials visited the two accused on the 29th of May 1954, together. The demand for bribe money was repeated before them. On that date the cases of the Society were adjourned to the 31st of May 1954. There was no hearing of the cases on the latter date. On the 16th of June 1954, both Iftikhar Hussain and Mushtaq Hussain attended the office of the Income‑tax Officer when the demand for illegal gratification was reiterated by the accused. They represented that they would accept Rs. 200 for themselves and Rs. 2,000 for the Income‑tax Officer whom they could ‑ influence into giving judgment favourable to the Society. It was settled between them that the pay ment of Rs. 200 would be made on the 19th of June and with regard to the amount of Rs. 2,000 intended for the Income‑tax Officer, it was stipulated that payment would be made if the officials of the Society were satisfied that the existing ex‑parte to assessment was not to be enforced. In view, however, of the fact that Rs. 2,000 was a large sum, Mushtaq Hussain decided to contact the Special Police Establishment. As a result of the information supplied to the Special Police, Inspector Maqsud Ahmad (P. W. 6) registered a formal first information report (Ex. P. S/1) at 11 a. m. on the 19th of June 1954. On the application of the Inspector to the District Magistrate, the latter deputed a Magistrate to supervise the raid which was organised for catching the two accused red‑handed. Inspector Maqsud Ahmad gave a currency note of the denomination of Rs. 100 (Ex. P. 1) and ten notes of Rs. 10 denomination each (Exs. P. 2 to P. 11) to Mushtaq Hussain P. W. in the presence of the Magistrate, Mr. Maqbul Ahmad (P, W. 5). The Magistrate recorded the numbers of these notes in a memorandum. He then accom panied the Inspector and Mushtaq Hussain and Muhammad Sultan P. Ws. to the house of Syed Qaim Hussain (in Gian Street, Krishan Nagar), brother‑in‑law of Mushtaq Hussain, where it had been arranged that the money would pass. The members of the raiding party were seated in the baithak of the house. The two accused arrived there at about 1‑45 p. m. Mushtaq Hussain conducted them to a room in the upper storey of the house. The hundred rupee currency note was then passed on to Badr‑e‑Alam and the ten rupee notes to Khalid Waheed accused. Mr. Maqbul Ahmad had stood outside the room in which the money had been paid and over‑heard the conversation that took place between the ‑accused and the bribe‑giver. Surmis ing from the talk that the money had been paid, he quietly came down. The pre-arranged signal was then given and the members of the raiding party rushed up to the upper storey. The two accused were seen coming down with Mushtaq Hussain. The Magistrate detained them and on demand, Khalid Waheed and Badr‑e‑Alam produced the currency notes whose numbers tallied with the numbers noted in the memorandum. When questioned in the Special Judge's Court, both the accused pleaded not guilty. Khalid Waheed admitted that ten notes of Rs. 10 denomination, had been recovered from him. His story was that he had paid Rs. 100 to Mushtaq Hussain P. W. in the presence of Khawaja Abdul Hamid, Income‑tax Practitioner, Lahore, for purchasing kheses from Multan for the marriage of his sister. On the morning of the 19th May 1954, Mushtaq Hussain met him in his office and gave him to understand that the accused could get his things from his house that day in the afternoon. He gave him the address of‑the house. The accused proceeded to the house indicated, in Giar Street, Krishan Nagar. On the way he met Badr‑e-Alam, his co‑accused, and he accompanied him. Mushtaq Hussin met them outside the house and took them to the upper storey and served them with some refreshments. Mushtaq Hussain then apologised for not having brought the kheses due to lack of time and enquired whether the kheses were still wanted or the accused desired return of his money. The accused said that he would consult his father and let him know if they still needed the kheses. The money was then returned to him in the shape of ten rupee currency notes. Badr‑e‑Alam, however, denied that any hundred-rupee currency note was received by him or was taken from his possession by the Magistrate. The hundred rupee note, it was suggested, was part of some other money which was recovered at the time of the search. The prosecution story was supported at the trial by the testimony of Mushtaq Hussain (P. W. 1), Iftikhar Hussain (P. W. 3), Muhammad Sultan (P. W, 4), Mr. Maqbul Ahmad, Magistrate (P. W. 5) and Inspector Maqsud Ahmad (P. W. 6). None of the prosecution witnesses was proved to be in any mariner inimical to the accused, and they gave a consistent story. Nothing; was brought out in their cross‑examination which could shake their credit. In defence, four witnesses were examined. Khwaja Abdul Hamid, Income-tax Practitioner (D. W., 1), stated, that on the 12th of June 1954 he and Mushtaq Hussain ho had engaged him in‑his case; were standing in front of the office of the Income‑tax Officer when Khalid Waheed accused passed near them, Mushtaq Hussain called him and had some talk with him in his presence. Khalid Waheed requested Mushtaq Hussain to obtain kheses for his sister's marriage from Multan for him and gave him a hundred rupee currency note. In this Abdul Hamid was corroborated by Abdul Waheed (D. W. 2); the father of Khalid Waheed accused. He alleged that he had given his son Rs. 150 for the purchase of kheses and some other articles for the marriage of his daughter. His son later told him that he had given Rs. 100 to a person for the purchase of kheses at Multan. The other two D. Ws., Muhammad Ishaq and Muhammad Sharif, merely deposed that the accused had never demanded any money from them. This evidence was quite unimpressive and was rightly rejected as false by the learned Special Judge. It provided no rebuttal of the disinterested prosecution evidence. Mr. Nazir Ahmad Khan, who appeared for the appellants, did not challenge their conviction on the merits. He, however, raised a legal point. The order of sanction for the prosecution of the two appellants emanated from the Ministry of interior. Government of Pakistan, under the signatures of Mr. Hamid ud‑Din Ahmad, Deputy Secretary. After setting out the allegations against the two accused, the order recited that the Central Government was pleased, under subsection (5) of section 5 of the Pakistan Criminal Law Amendment Act, 1948, to sanction the prosecution of Khalid Waheed and Badr‑e Alam for the offences falling within section 162 P. P. C. anal section 5 of the Prevention of Corruption Act, 1947, in the Court of the Special Judge, Lahore. Mr. Nazir Ahmad Khan did not controvert the fact that the Deputy Secretary had authority under the rules of business framed under section' 17 of the Government of India Act, 1935, to sign and authenticate an order on behalf of the Central Government. He, how ever, contended that the order of prosecution was not a valid order inasmuch as it was not expressed to be issued in the name of the Governor‑General, as was required by subsection (1) of section 17 of the Constitution Act. The learned counsel very fairly conceded that he was unable to cite an authority in favour of the proposition that an order, which did not comply in its form with the provisions of subsection (1) of section 17 of the Constitution Act, would be invalid. He, however, pressed for the consideration that a constitutional provision should not be allowed to be con travened with impunity, as otherwise the provision in question would be reduced to a nullity. I am conscious of the pre- eminent position occupied by a constitutional statute in the heirarchy of legal enactments. It seems to me, however, that the provision in question is directory rather than mandatory, I am therefore, inclined to hold that non‑conformity with the provisions of subsection (1) of section 17 would not invalidate a the order if in fact it proceeded from the appropriate authority after a consideration of the relevant facts. I am fortified in this view by a reference to certain authorities cited at the Bar, which I proceed to examine. Not all constitutional provisions have the same peremp tory character. In Sarfraz Khan v. Crown (P L D 1950 Lah. 384) the vires of the Punjab Public Safety Act, 1949, were attacked on the ground that the Governor‑General, for whose assent the bill had been reserved by the Governor, did not accord his assent " in His Majesty's name " as was required by section 76 of the Constitution Act. It was held by a Full Bench of the Lahore High Court that the assent given by the Governor‑General was valid. This authority is not directly in point and the decision proceeded principally on the ground that His Majesty's Government in the United Kingdom ceased to have any responsibility for, or to exercise any form of control on, the Government of any of the territories that came to be called Pakistan, after the enforce ment of the Indian Independence Act, 1947. It was pointed out that sections 32, 76 and 77 of the Government of India Act, 1935, that related to the reservation of Bills for the signification of His Majesty's pleasure or the power of His Majesty to disallow Acts of the Central and Provincial Legislatures had been omitted from the Constitution Act by the Pakistan (Provisional Constitution) Order, 1947. The Governor‑General under the new dispensation was the re presentative and not the agent of His Majesty for the purposes of the Government of the Dominion and, therefore, it was found that his act in giving assent to the Bills was always symbolic or representative. A closer analogy is provided by the decision of the Federal Court of United India in c

7. K. Gas Plant Manu facturing Co. v. Emperor (AIR 1947 FC 38). It was held therein that the provisions of section 40, as given in Schedule IX of the Government of India Act, 1935, which required all orders and proceedings of the Governor‑General in Council to be expressed to be made by the Governor‑General in Council and to be signed by a Secretary to the Govern ment of India, or otherwise as may be directed, were not mandatory but merely directory, and non‑compliance with them would not invalidate an order. In that case the expression " Central Government " had been used in the order in question instead of " Governor‑General in Council", and the Distribution Order, whose vires were attacked, was held to be not vitiated. It was laid down that the provision of the Constitution Act should be given a large and liberal construction. Section 40 was construed as laying down only the form in which the order was to be expressed but contravention of this form was held not to entail invalidity. My attention has been invited to a decision of my learned brother, Kaikaus J in Qamar‑uz‑Zaman Khan v. The Punjab Province (PLD1955 Lah. 612) in which an order of requisition of a certain evacuee property, purporting to have been passed under, rule 21 of the rules framed under the Civil Defence Ordinance (VI of 1951), was questioned as contravening the provisions of section 12 (3) (b) of the Pakistan Adminis tration of Evacuee Property Ordinance, 1949. The previous sanction of the Central Government to the requisition of the evacuee property was held to be necessary by virtue of the enactment last referred to. Under section 3 (8 a b), General Clauses Act (X of 1897), the expression " Central Government ", inter alia, means, in relation to anything done or to be done after the establishment of the Federation of Pakistan, the Governor‑General, and under section 17 of the Government of India Act, 1935, all executive action of the Federal Government was necessarily to be taken in the name of the Governor‑General. In that particular case only an office note approving of the proposed requisition was produced, signed by two secretaries of the Central Government. The learned judge thought that this order did not prove that the Central Government had passed it. He drew a distinction between the power to sign or authenticate an order and the power to make one. I do not feel it necessary to discuss this case, which is the subject of a Letters Patent appeal pending in this Court. A division Bench of this Court, in Criminal Appeal No. 51 of 1955, Crown v. Abdur Rashid, (Criminal Appeal No. 51 of 1955) decided by Abdul Aziz Khan and Ortcheson JJ. on the 20th January 1956 referred to the provisions of section 17 of the Constitution Act and held that an order emanating from the Central Government, although not expressed to be passed in the name of the Governor‑General, was nonetheless valid. It was pointed out by the learned judges that Schedule 3 to the rules of business framed under section 17 of the Constitution Act, empowered Secretaries and Deputy Secretaries etc. to make and execute orders and other instru ments in the name of the Governor‑General, and this amounted to clear delegation of powers. The precise point, however, in the form urged in the present case, was not adjudicated upon in that appeal. The Supreme Court of India in a recent case reported as State of Bombay v. Purushottam Jog Naik (A I R 1952 S C 317 ) upheld the validity of an order passed under section 3 (1) of the Preventive Detention Act, 1950, which recited that " the Government of Bombay was satisfied . . . . " whereas by article 166 (1) of the Indian Constitution, it should have been expressed to be issued in the name of the Governor. The learned Judges in that case observed that it was true that under section 3 (43‑a) of the General Clauses Act, the words "the State Government", which was the competent authority mentioned in the Preventive Detention Act, 1950, meant the Governor. They added, however, that the order impugned, itself used the expression "the State Government" (the Government of Bombay) and, therefore, must be given the same meaning as in the General Clauses Act. In the present case also the assailed order uses the expression "Central Government" and by parity of reasoning its validity should not be open to doubt. It is to be noticed that in the Constitution Act, there is no express provision that if the form laid down for orders in subsection (1) of section 17 of the Constitution Act is not adhered to it would deprive the order of all efficacy. In the absence of any such indication, it would be too much to make a fetish out of this provision and to give it a construction which might entail a considerable amount of inconvenience not only to the Government but also to the public at large and might even be calculated to l bring the business of Government to a standstill. It is a relevant consideration that the provision is couched in affirmative terms and is not expressed in the form of a preemptory prohibition. It appears to relate to the form which an order should take when being published and no; to the method of making the order which is a process to c be distinguished from the expressional pattern of the order in writing. The interpretation contended for by Mr. Nazi. Ahmad Khan would necessarily imply that even if per incuriam or by inadvertence an order is passed by the Central Government, without strict compliance with the form prescribed in section 17 (1) of the Constitution Act, though it may be duly authenticated by a Secretary to Govern ment, it would nevertheless be non est in law. I find no warrant for such an extreme view being taken on the basis of the contentions raised before me. On a consideration of these authorities, I am of the view that the objection raised to the validity of the order of sanc tion is without force. As has been mentioned above, the propriety of the con viction has not been challenged on the merits. It is supported by good evidence on the record. Pending hearing of this appeal, however, the appellants were enlarged by me on bail. They have undergone a substantial portion of their sentences, and it seems unnecessary to send them back to jail to serve out the remainder of their sentences. While, therefore, maintaining their convictions, I reduce their sentences to the terms of imprisonment already undergone by them. A. H. Sentences reduced.