P L D 1959 (W (PLP)

This is an appeal by one Ghani-ur-Rahman against the order of Mr. Qaisar Khan, Special Judge, Mardan, whereby he has been convicted of an offence under section 161, P. P. C., (read with subsection (2) of section 5 of the Prevention of Corruption Act 1947) and sentenced to imprisonment till the rising of the Court, in addition to a fine of Rs. 200, or in default to undergo three months' R.

1. During the days of the occurrence, the appellant was an Inspector Central Excise and was posted at Tor Dher of Mardan District.

2. Nawaz Khan (P. W. 1) was a- dealer in tobacco business and had duly obtained a license for running a barn. As usual, he used to enter the account of his raw tobacco in a register called "E. B. II", and the output of his cured tobacco in a list known as "Return T. 2", and to submit the same for checking to the appellant to determine the excise duty. He several times approached the appellant with his register and the list for the purpose of checking, but the appellant would refuse to do his job, unless he was paid a bribe of Rs.

20. On the last occasion, which was the 15th of January 1957, Nawaz Khan again visited the office of the appellant for the purpose. He had taken along with him his cousin Sada Khan (P. W. 2), who was friendly with the appellant, so that he may request him (appellant) to check his register and list without demanding bribe. This attempt also proved unsuccessful. Accordingly, Nawaz Khan and Sada Khan completely disappointed left the office. While walking away, they came across one Twahir of village Tor Dher and complained to him, that the appellant was not checking the registers, unless he was paid illegal gratification. Twahir informed them that an Inspector of the Special Police Establishment was present in the village, and that they should report to him. Nawaz Khan and Sada Khan contacted Fazal Raziq, Inspector Special Police Establishment (P. W. 4), and apprised him of what had happened. On his suggestion, Nawaz Khan submitted a written application to him. The Inspector asked Nawaz Khan and Sada Khan to wait in the village until his return, while he himself hurried to Swabi, where he made an application to the Sub-Divisional Magistrate for permission to investigate the case. The S. D. M. accepted the request and passed an order granting permission to the Inspector to conduct investigation, and also deputed a Naib -Tehsildar, Said Akbar Shah (P. W 3), who is a Magistrate, to accompany the Inspector and to supervise the trap, which was to be arranged. The Inspector and the Magistrate reached Tor Dher the same evening and contacted Nawaz Khan and Sada Khan, but since it was late and the office of the appellant was closed, the matter was postponed until next morning. 3: On the morning of the 16th January, the party moved to action, according to the plan they had prepared. Four currency notes of Rs. 5 denomination each, the numbers and particulars whereof were duly noted on a paper, were handed over to Nawaz Khan and he and Sada Khan were detailed to go, to the office of the appellant. Nawaz Khan and Sada Khan entered the Excise Office, where the appellant was present. They asked him to check the registers. The appellant told them, that he would check the registers only, if he was paid Rs.

20. Nawaz Khan gave him the money, which he (appellant) put in the pocket of his shirt. In the meantime Sada Khan went out on some pretext and informed the Inspector and the Magistrate, who were waiting outside in a safe place. Thereupon the Inspector and the Magistrate followed by Sada Khan hastened to enter the office. On seeing the two officers, the appellant promptly put his hand inside his pocket, took out the currency notes and hurriedly placed them under the registers, which were lying in front of him on the table. The Inspector and the Magistrate were quick to seize the money. The appellant became nervous and confused and his face fell at once. The, Magistrate asked him to make a statement and to explain the circumstances under which he had received the money from Nawaz Khan. The appellant denied the charge and said in reply that "he was not in normal condition and that he would make his statement on a subsequent occasion". According to the Inspector, the appellant was "trembling and was in a very excited state of mind". and on demand by the Magistrate he replied that "he would make statement after he would fully think over the matter". The Magistrate prepared on the spot a detailed note of what had taken place during the raid. On his order, the Inspector arrested the appellant, who was then produced before the S. D. M. who remanded him to custody. Later he was released on bail.

4. In the course of his statement at the trial, explaining the circumstances of the incident, the appellant said :- "On 16-1-57 early in the morning I went to my office to take some record there-from as I was going to village Lahor on tour. In the meantime, Nawaz Khan and Sada Khan came there. I told them as to why had they come and they told me that they had brought their returns for checking. The return is prepared in Form R. T.

2. I told them that I was going to Lahor on tour and that I would check their returns on the spot with the stock. Both of them told me that they had brought a tonga and that I should accompany them in their tonga. Nawaz Khan sat down on a chair lying near a table, while Sada Khan remained standing at some distance from him. I was busy taking out record from an almirah. When I took out some record from the almirah and placed it. on the table, I found that Sada Khan had gone out by that time. Soon after an Inspector followed by the Naib-Tehsildar entered my office, I went forward towards the door to receive them. Che Inspector introduced himself and the Naib-Tehsildar to rile. I told them to sit down as I knew the Naib-Tehsildar, but the Inspector told me that they were to search my person. I removed my blanket which I was wearing and offered myself for the search The Inspector touched my pocket but Nawaz Khan told him that the money was not there but was lying on the table under some papers. The Inspector and the Naib-- Tehsildar went towards the table and after searching some books and papers lying there, produced four notes of Rs. 5 each from some papers on the showing of Nawaz Khan. The papers were lying close to Nawaz Khan. The Inspector showed the notes to the Tehsildar and enquired from him as to whether the notes were the same of which he had noted the numbers and the Tehsildar replied in the affirmative. I told the Tehsildar to note the situation and told him that I had made a case against the two persons Nawaz Khan and his partner Wasil Khan and that the case had therefore been concocted against me, The Tehsildar did not give any reply and the Inspector told me that he knew that Nawaz Khan and Sada Khan were not persons of good character. The Inspector, however, told me that I should accompany him to the Tehsil so that he may record the statements of Nawaz Khan and Sada Khan for proceedings against them. In Swabi I was put up in judicial lock-up. The Inspector did not record my statement. I file certified copies of my application against Wasil Khan, the statement of Wasil Khan and the order of the Deputy Collector. These are Exhs. D. A., D. B. and D. C., respectively; Wasil Khan, Nawaz Khan and Sada Khan run a joint business. The quantity of tobacco cured less than hundred maunds is not checked by the Inspector through R. T. 2". He, however, admitted that he gave no statement, which he made at the trial, to the Magistrate at the time of the occurrence.

5. The learned counsel for the appellant contends that an officer below the rank of Deputy Superintendent of Police, is required under section 5-A of the Prevention of Corruption Act to obtain an order of a Magistrate of the 1st Class for the purpose of instituting investigation and a warrant for the arrest of the accused officer, and since in the present case no such warrant was obtained, the arrest was illegal, and consequently the entire proceedings were vitiated. The argument is without any substance. Section 5-A says :- "Notwithstanding anything contained in the Code of Criminal Procedure . . . . . . . . . . no officer below the rank of Deputy Superintendent of Police shall investigate any offence punish able . . . . . . . . . . . without an order of a Magistrate of the first class or make an arrest therefore without a warrant". The use of the word "or" in the section clearly shows, that if the officer concerned intends to investigate any offence under the Act, he has to obtain an order of a Magistrate, .but if he wants to arrest the accused officer, without first obtaining an order of a Magistrate for starting investigation, he is required to take out a warrant. It would have been a different matter, if instead of the word "or", the word "and" had been used. In that case, the officer was bound to obtain an order for the purpose of investigation and also to take out a warrant later for the purpose of arrest. When once order of a Magistrate is obtained for the purpose of investigation, arrest is the sequal, and in that case warrant need not be taken out, for arrest of an accused person after investigation has started forms part of that investi gation within the meaning of the word. But even if it be conceded that in the present case the arrest was not strictly in accordance with the requirement of section 5-A, it was legalised within 24 hours, when the accused officer was produced before the S. D. M., who remanded him to custody. The mere fact that his detention in police custody for a few hours was not in accordance with law, cannot in any way render the entire proceedings of the trial illegal, for it is obvious that the arrest was made legal by the order of the S. D. M. long before the trial commenced. In Promod Chandra Shekhar v. Rex (A I R (38) 1951 All. 546.) it was held that "the failure to comply with the proviso to section 3, Prevention of Corruption Act, is an irregularity falling within section 156 (2), Cr. P. C., and the proceedings of the investigating officer cannot be called in question". It is not the appellant's case, that the irregularity in his arrest has occasioned any failure of justice. That being the case, the contention of the appellant's learned counsel is repelled.

6. Next, it was objected that there was no evidence on the record to show that the officer conducting the prosecution in the Court of the Special Judge was appointed by the appropriate authority mentioned in subsection (6) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1948. It is true that the order appointing the Special Prosecutor is not forthcoming, but it is evident from the record, particularly the order dated the 27th November, 1957 of the Special Judge noted in the order- sheet, that the prosecution was conducted by Hazimud-Din, "Special Public Prosecutor". The words "Special P. P." clearly denote, that the officer was especially appointed for the prosecu tion of the case. In law, every official act is presumed to have been legally performed, unless the contrary is shown. But even if no person had been especially appointed for conducting the prosecution, the omission will not vitiate the proceedings, for there is nothing in the subsection to indicate any intention to' that effect.

7. It was further argued for the appellant that since the tobacco stock of Nawaz Khan did not exceed the prescribed quantity of hundred standard maunds, he was not required by the rules to maintain any register, such as "E. B. II", or the "List", and the question of checking by the appellant did not arise, and as such, he was not in a position to show any favour to the complainant by taking illegal gratification from him. The argument is simply baseless. It is now well-settled beyond any controversy that to constitute an offence under section 161, P. P. C., it is not necessary that the public servant must be capable of doing favour. It is enough if the person giving the bribe thinks that the public servant has an opportunity or is in a position to show him favour. If a public servant gives an impression to a person that he is capable of rendering him some service, the offence is complete when he accepts illegal gratifi cation, even though he had no power to render service. For this proposition, the learned Assistant Advocate General relied on Syed Jafar Shah v. The Crown (P L D 1955 Bal. 6), and Muhammad Farooq v. The State (2), and the learned counsel' for the appellant had no reply. In this connection it will be significant to reproduce in his own words the relevant portion of the appellant's statement made at the trial. He said :- "In the meantime Nawaz Khan and Sada Khan came there (office). I told them as to why had they come and they told me that they had brought their returns for checking. The return is prepared in Form R. T.

2. I told them that I was going to Lahor (village of Nawaz Khan complainant) on tour, and that I would check their returns on the spot with the stock. Both of them told me that they had brought a tonga and that I should accompany them in their tonga". It is quite plain from the above statement that Nawaz Khan and Sada Khan were under the impression that the appellant had the power to check the registers and was in position to show them favour, for if the tobacco stock had been certified to be less than hundred standard maunds, the result would have been different and Nawaz Khan would have gained financially.

8. As regards the merits. of the case, it will be noticed that the prosecution story and the version given by the appellant are substantially identical except on one point, namely, that while the prosecution witnesses allege that the appellant put the money in his pocket and later took it out when the Magistrate and the Inspector entered the office and placed it under the papers, the appellant asserts that the money was already lying under the papers from where it was seized. The appellant admits the presence of Nawaz Khan, Sada Khan, Fazal Raziq Inspector and Said Akbar Shah Magistrate at the time of the recovery of the currency notes, and when Nawaz Khan and Sada Khan swear that the appellant put the money in his pocket, and the Magistrate and the Inspector solemnly affirm in unequivocal terms that they actually saw the appellant taking out the money from his pocket and placing it under the papers, one finds no earthly reason to disbelieve them. The mere fact that some time before the occurrence one Wasil, a partner of Sada Khan in tobacco business, was challaned and fined at the instance of the appellant, could not furnish any motive for the Magistrate and the Inspector to enter into a conspiracy with Nawaz Khan to have the money planted on the appellant and to involve him in a false case. If the evidence of the prosecution witnesses, particularly of the Magistrate, -to the effect that the appellant was seen taking out the money from his pocket and placing it under the papers is believed, then the defence version, uncorroborated as it is, that the money was planted on the appellant, must be rejected. It will be recalled that when after the recovery of the money, the Magistrate called upon the appellant to explain the circumstance under which he had put the marked currency notes in his pocket, he did not offer any explanation and replied that he would make his statement later after thinking over the matter. That clinches the matter. It also must be pointed out in this connection that if the witnesses wanted to tell lie, there was nothing to prevent them from asserting that the marked currency notes were recovered from the person of the appellant.

9. Attempt was made at the trial to show that the appellant was an honest officer and that he had never before accepted illegal gratification from any person, and witnesses were produced in defence to prove the integrity of the appellant. This evidence which is of the customary type, usually relied upon by an accused officer, cannot be accepted against the clear ocular testimony of responsible and respectable witnesses produced by the prosecution, as in the present case. The evidence of the Magistrate the Inspector, Nawaz Khan and Sada Khan is quite sufficient to prove beyond any reasonable doubt, that the appellant accepted bribe in order to show undue favour to Nawaz Khan.

10. Consequently for the reasons given above, the conviction and the sentence of the appellant are maintained, and the appeal is dismissed. K.B.A./A.H. Appeal dismissed.