P L D 1964 Supreme Court 482 (PLP)

CORNELIUS, C. J.

‑The appellant Dr. Abdul Khaliq Shukrani appeals by special leave against a judgment of a learned Single Judge of the High Court at Lahore confirming his conviction by a Special Anti‑Corruption Judge and the sentence awarded under section 161, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947. The substance of the charge was that the appellant being Medical Officer of the Civil Hospital, Ahmadpur East in the district of Bahawalpur on the 19th December 1956, received from the complainant, Ghulam Haider P. W. 2, a sum of Rs. 100 which he had earlier demanded as a bribe for certifying that an injury received by Ghulam Haider of which he had made a complaint was of a grievous character. Ghulam Haider had been taken to the Hospital on the 4th December 1956, and was admitted as an indoor patient. The injury was of such a nature that it could not at once be determined whether it was grievous for that depended upon the result, i.e. whether it would lead to permanent impairment of the use of a member, namely, a hand. Accordingly, it was necessary first to heal the wound S and then to examine the hand to determine whether there had been such permanent damage to the interior structures as would cause permanent impairment in the use of the hand. This explains how it came about that the medical report was delayed. The final examination was made by the doctor on the 18th December 1956, and it is the doctor's case that on the same date he issued a certificate to the effect that the injury was grievous and had it posted the same afternoon to the S. H. O. Chani Goth, which was the Police Station concerned. Actually, the certificate was received at Chani Goth on the 20th December 1956, although there is evidence on the record to show that it could not be presumed with safety that a letter posted at Ahmadpur East would necessarily be delivered at Chani Goth on the following day. The point with respect to this matter is made by the prosecution that the certificate was only issued after the bribe had been taken, but as the doctor was arrested immediately after, it would seem that a certain amount of manipulation was necessary to procure such a result. On the other hand, the letter does bear the stamp of the 18th December 1956, of Ahmadpur East but the time given in the date‑stamp is 3 p. m. and the certificate states that it was written at 4 p.m. The evidence is thus conflicting, but nothing much turns on the point, for it is immaterial when the certificate had been signed and sent on, so long as the bribe was taken in relation to the issue of this certificate, this being an act performed within the accused's public duty. The cage furnishes an instructive example of the extent to which the laws relating to corruption by public servants are loaded with complexity and the extent to which that complexity operates in aid of the accused persons, and tends also to maintain a kind of real interest to such cases in the legal profession. The accused having been caught red‑handed on the 19th December 1956, so it is held by both the Courts below, sanction for his prosecution was not given until January 1959, that is after a delay of two years. As will be seen presently, the delay was not without its effect upon the evidence which the prosecution was to lead in the case. Under the West Pakistan Ordinance No. XXXI of 1958, which was to apply from the 19th December 1958, the Pakistan Prevention of Corruption Act, 1947, replaced the pre‑existing law of the Bahawalpur State viz., the Bahawalpur Prevention of Corruption Act, 1950, which was in fact a copy of the Pakistan Act, in its original form. But in the Bahawalpur State, where the Criminal Law Amendment Act of 1948 had not been adopted, the case might have been sent for immediate trial to a competent Magistrate, to be proceeded with as a warrant case. Under the laws of West Pakistan, the case had to go before a Special Judge appointed under the Criminal Law Amendment Act of 1958 which had replaced the earlier Act of 1948. By notification of West Pakistan Government, dated the 18th December 1958, "all Sessions Judges, Additional Sessions Judges, District Magistrates and Additional District Magistrates in the Province of West Pakistan who have for a period of not less than three years exercised whether continuously or not powers under the Code of Criminal Procedure 1898 of a Sessions Judge or of an Additional District Magistrate" were appointed ex‑officio Special Judges within their respective Sessions Divisions/District for the trial of offences under the Act. The Provincial Government was the "appropriate Government," as the official in question was a Provincial Government Officer. The case against Dr. Shukrani was placed on the 24th June 1959, before the Additional District Magistrate, Bahawalpur, Malik Abdur Rashid. There was an adjournment to the 23rd December 1959, and on the 10th December 1959, the case was taken up by a Mr. Durrani, presumably Additional District Magistrate, who was apparently not qualified. There were some 15 other cases of the same nature in his Court, and on the 21st December 1959, the District Magistrate, Bahawalpur referred all these cases to the High Court for an order of transfer to the Additional District Magistrate of another district, namely, Bahawalnagar. This matter was decided by a learned Single Judge in the High Court on the 14th April 1960, when it was stated before him that the Additional District Magistrate, Bahawalpur at the time was competent to hear the cases. This episode has significance. The reference to the High Court was strictly not necessary, if there was available at Bahawalpur, an official qualified to be a Special Judge, who could have heard these cases. Reference may here be made to section 4 of the Criminal Law Amendment Act of 1958. Sub section (1) of this section gives all Special Judges jurisdiction within their territorial limits to take cognizance of offences committed within those limits, upon (a) receiving a complaint of facts constituting the offence or (b) upon a report of such facts by a police officer. Subsection (2) lays down that where in a certain territory there are two or more Special Judges, it is the duty of the Government by notification to declare one of them to be the Senior Special Judge for that area, and sub section (3) provides that the Senior Special Judge has power to specify which one out of the Special Judges in the territory shall try a particular case. This is a power of allocation of cases. The proviso to the same subsection enables the Senior Special Judge to transfer a case from one Special Judge's Court to another within the same territorial limits, at any stage of the trial. At the time the Sessions Judge at Bahawalpur was Mian Muhammad Saleem. We have been furnished with details of his career in the judicial service. He took over charge as officiating District and Sessions Judge at Bahawalpur on the 22nd November 1958, and continued in that appointment until the 26th March 1962. This was the first occasion on which Mian Muhammad Saleem exercised powers as a Sessions Judge. His career up to that time, extending over 21 years, had been spent purely as a Civil Judge, with the exception of two short periods, when he held charge of the "current duties" of the District and Sessions Judge at Rawalpindi. "Current duties" do not include the trial of cases. Accordingly, Mian Muhammad Saleem's record of service makes it clear that in December 1959, when the question of the further steps to be taken in the 16 corruption cases pending before the Additional District Magistrate, Bahawalpur, came up, Mian Muhammad Saleem had had just about a year's experience of work as a Sessions Judge. He was therefore not qualified to be a Special Judge, in terms of the Provincial Government's notification of the 18tb December 1958. Reference may now be made to another notification of the 18th December 198, by the West Pakistan Government, under subsection (2) of section 4 of the Criminal Law Amendment Act, 1958. By this notification, it was declared that all Sessions Judges were to be Senior Special Judges for their respective Sessions Divisions, but if a Sessions Judge was not qualified to act as Special Judge "within the meaning of clause (b) of subsection (2) of section 3 of the said Act, the District Magistrate concerned shall perform the functions of the Senior Special Judge within his district." Reference to subsection (2) of section 3 of the Act shows that a person may be qualified to be appointed as a Special Judge under two heads, (a) and (b). Under clause (a), he may be qualified under Article 167 of the ((hen) Constitution of Pakistan for appointment as Judge of a High Court, that is, that he should have held a judicial office for at least 10 years, and Mian Muhammad Saleem did indeed possess this qualification. He did not possess the other qualification, under clause (b) of the subsection, viz., that for a period of not less than three years, a person should have exercised under the Criminal Procedure Code, powers as "al Sessions Judge, an Additional Sessions Judge, or an Assistant Sessions Judge". Not only was he not qualified to be a Special Judge, for the trial of a Provincial officer, but for the same reason, he was not qualified to be a Senior Special Judge, so that the power of allocation of cases too did not belong to him. In the meantime, on the 30th January 1960, the West Pakistan Government created a number of posts of Special Anti‑Corruption Judges with jurisdiction over more than on district. One of the posts thus created was that of the Anti -Corruption Special Judge at Multan with jurisdiction to try cases arising in Bahawalpur as well as six other districts Sheikh Faruq Ahmad, a retired Sessions Judge was appointed on the 7th March 1960, to be Special Judge at Multan and he assume charge on the 9th March 1960. On the 16th February 1960. a notification was issued in relation to these Anti‑Corruption Special Judges, declaring them to be Senior Special Judges for the areas within their respective jurisdictions provided that "neither the Sessions Judge, nor the District Magistrate having jurisdiction there under is qualified for appointment as a Special Judge within the meaning of clause (c) of section 2 of the Act." Clause (c) of section 2 of the Act reads as follows :‑ "Special Judge" means a Special Judge appointed under subsection (1) of section 3 . If these words be substituted for the last clause of the notifi cation, it would read somewhat as follows :‑ "is qualified for appointment as a Special Judge that is a Special Judge appointed under subsection (1) of section 3 of the Act." That is plainly non‑sensical, for being qualified for an appointment and being appointed thereto are two different categories. For the State, Mr. Zullah argued that to give meaning to this notification, emphasis should be laid on the fact that it starts wit the words " in pursuance of the West Pakistan Government Notification No. 13‑73‑H. Judl./58 dated the 18th December 1958, and the West Pakistan Government Notification No. Judl. 1‑3(2)/59, dated the 30th January 1960, and in exercise of the powers conferred on him by subsection (2) of section 4." In other words, the argument is that the intention was that this fresh notification was to operate in consequence of and in consistency with the notification of the 18th December 1958, by which it was provided that only Special Judges who, in the relevant circumstances, had been Sessions Judges or Additional Sessions Judges or Assistant Sessions Judges fore not less than three years, were declared under the notification to be Senior Special Judges, but otherwise it was the District Magistrate, who would discharge the functions of the Senior Special Judge. As has been seen already, Mian Muhammad Saleem was not so qualified. In view of the meaningless nature of the last clause in the aforesaid notification of the 16th February 1960, the argument is undeniable that at the relevant time. Mian Muhammad Saleem was not the Senior Special Judge in Bahawalpur. The position thus develops that it was either the District Magistrate who was to exercise the functions of the Senior Special Judge in relation to Bahawalpur, or the new Special Anti‑Corruption Judge, and in view of the latter having been declared to be Senior Special Judge, and of the former being merely authorised to discharge the functions, in default of the Sessions Judge of the district having the necessary qualification, it seems quite clear that it was Sheikh Faruq Abmad and no other who was the Senior Special Judge in respect of Bahawalpur from the 9th March 1960, onwards when he assumed charge in Multan. It remains to consider how this case came before Mr. Faruq Ahmad. It was one of the cases returned by the High Court following the order of the 14th April 1960, mentioned above, and presumably it was by order of the District Magistrate who had made the reference to the High Court, that this case along with the other cases was sent to Sheikh Faruq Ahmad, for there has been placed upon the record a letter from the Secretary to the West Pakistan Government in the Anti‑Cor ruption Department, dated the 16th March 1960, addressed, inter alia, to the District Magistrate of Bahawalpur, directing that all anti‑corruption cases pending in different Courts should be sent to Sheikh Faruq Ahmad for speedy trial. An application by the accused to Sheikh Faruq Ahmad, dated the 22nd May 1960, has been placed on the record requesting transfer of the case to the A. D. M. Bahawalpur who was now qualified to hear it and giving as a reason that the witnesses belonged to the locality. On this Sheikh Faruq Ahmad made an order dated the 23rd May 1960, to the effect that he was required by Government orders to try these cases. On the point of jurisdiction of Sheikh Faruq Ahmad, a lengthy argument was presented by Mr. Mahmud All in the course of which this application by the accused to Sheikh Faruq Ahmad dated the 22nd May 1960, was relied upon as an objection to his jurisdiction. It could equally have been regarded as a prayer that under his powers as Senior Special Judge, he should transfer the case to A. D. M. Bahawalpur. As a result of examination of all the various notifications applicable in the case. I am satisfied that Sheikh Faruq Ahmad was properly seized of the case when he commenced the trial on the 2nd June 1960, and that he was so seized in the capacity of Senior Special Judge in relation to Bahawalpur District. But it is difficult to withhold the comment that the complexities creates by the changes in the laws, and in the notifications have furnished material for many hours of argument before the High Court, as well as in this Court. In the High Court, the learned Single Judge was led to hold that the transmission of the case to Sheikh Faruq Ahmad was irregular. I find that conclusion to be insupportable. And I am fairly certain that if the case had not been diverted by the laws from the ordinary Courts, it might very well have been brought to a final conclusion within a year of the occurrence, that is, some six years ago. An exploratory argument of similar nature challenging the applicability of the Prevention of Corruption Act. 1947 in respect of the offences here in question, which were committed at the time when the Bahawalpur Prevention of Corruption Act, 1950 was in force, was presented by Mr. Mahmud Ali. Section 5 of the latter Act defined criminal misconduct in discharge of official duty, and Mr. Mahmud Ali particularly stressed that under subsection (1), clauses (a) and (b) specified that to be guilty of this offence, a public servant should habitually accept or obtain, etc, illegal gratification. However, clause (d) in the same subsection renders a public servant guilty of the offence of criminal misconduct "if he, by corrupt or illegal means or by otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage." On the facts alleged in this case, namely, that acting in his official capacity as Medical Officer of a Government hospital, with a duty to certify the nature of injuries referred to him, the accused demanded and succeeded in obtaining a sum of Rs. 100 by way of illegal gratification, it would seem sufficiently clear that even under the Bahawalpur law, the act would prima facie have been one performed in discharge of official duty, and there would be abuse of position by a public servant, resulting in pecuniary advantage to himself. Accordingly, it is clear that at the time when the offence was committed, it was punishable under the law then in force. As has been stated already, with effect from the 19th December 1958, by virtue of West Pakistan Ordinance No. XXXI of 1958, the Prevention of Corruption Act, 1947, became law for Bahawalpur. Under section 51 (1) (d) of this Act, it is criminal misconduct for a public servant by corrupt or illegal means or by otherwise abusing his position as a public servant to obtain pecuniary advantage for himself. The Act of 1947 does not require that the criminal misconduct should be expressly in the discharge of official duty, and again in clauses (a) and (b) of section 5 (1) the word "habitually" has been removed, but as has been seen, that would not prevent the offence from falling under clause (d) of the corresponding provision in the Bahawalpur Act. It is clear that the offence is equally an offence under section 5 (1) (d) of the Act of 1947, there being no change whatsoever in the ingredients of the offence, which may for purposes of the Act of 1947 be in discharge of public duty or not, without affecting the liability. The punishment under the two Acts was precisely the same. Mr. Mahmud Ali pointed out that under the Bahawalpur Act, the accused would have been entitled to trial under the warrant procedure, but it is clear that in 1958, the Pakistan Criminal Law Amendment Act was passed into law and thus became the law for the area of Bahawalpur as well as which had by this time been incorporated in West Pakistan. The change of procedure was effective since it did not violate any vested right. The trial commenced with an appearance in Court for the first time on the 24th June 1959. By that time the substantive ands procedural law applicable to the offence was the Pakistan law in supersession of the Bahawalpur law. I note that by the West g Pakistan Ordinance XXXI of 1958, the Bahawalpur Prevention of Corruption Act 1950 was repealed, and at the same time, the Prevention of Corruption Act, 1947 was extended to that area, and there was thus an effective re‑enactment so as to bring past offences within the purview of the new law. There is of course no allegation that thereby something was converted into an offence which had not been an offence prior to the change in the law. A very lengthy argument was addressed in regard to the merits of the case. Both the trial Court as well as the High Court have found it to be established beyond reasonable doubt that Dr. Abdul Khaliq Shukrani had in fact received Rs. 100 from Ghulam Haider by way of illegal gratification. The basis for prolonged argument was provided by the fact that a number of prosecution witnesses including, regrettably, the Magistrate who supervised the trap in this case had made statements tending to show that the transfer of the money and its recovery did not take place in the manner alleged by the Investigating Officer and Ghulam Haider. Ghulam Haider's evidence regarding the suggestion to him that a bribe would be necessary, his procuring of the money, his reporting to the Anti‑Corruption Authorities, the laying of the trap, and the visit to the hospital where the money was paid, are not challenged. The suggestion was made for the defence that the case was manoeuvred by the Thanedar Shakir Ali Khan, P. W. 1, out of hostility towards the doctor, but certain grounds of hostility when put to Shakir Ali Khan in his cross‑examination were denied, and the defence made no effort to establish the truth of these allegations. Moreover, Shakir Ali was posted at Bahawalnagar and the accused was at Ahmadpur East, and it is not easy to imagine that they had fallen foul of each other. In any case the detailed allegations upon which that suggestion was based have not been established. The case for the prosecution was somewhat weakened by the statement of My Sukhera, the Magistrate who conducted the raid, elaborating upon what he had said in his report written at the spot, that when on receiving the signal he went to the spot and questioned the doctor, about the money, the latter said that he had not taken any bribe and had only Rs. 54 on him which he handed over. Thereupon, the doctor removed his coat and the Magistrate searched the pockets, but did not find the 100‑rupee note, and then "Shakir Ali after shuffling the coat and re‑shuffling it, produced the currency note of Rs.

100. In cross‑examination this witness said, it was "probable that he (Shakir Ali) might have put the currency note in the coat and it was "equally probable that the note was in fact in one of the pockets and he (himself) had missed it." All this is not in the raid report, but the Magistrate also said in his evidence that Shakir Ali "did not enjoy a good reputation, for it had been complained that he had been harassing the people", and ordinarily, that would be a reason for treating the entire recovery proceedings with suspicion, What is regrettable is that a Magistrate having been appointed to supervise the proceedings precisely in order to safeguard against any sharp practice by the Police Officer should, nevertheless four years after the occurrence and in the absence of any record, come forward with an instance of deficiency on his part in the performance of his duty, and a suggestion that this deficiency may have provided an opportunity to the Police Officer to play a trick. It is noteworthy, however, that Ghulam Haider did not vary from his position, which was that the doctor on seeing him at the hospital asked him whether he had brought the money and he replied in the affirmative and handed over a I00‑rupee note to the doctor, who put it in his pocket. After that a little trick was practised, namely, a constable Ghulam Hussain who had gone with Ghulam Haider pretended to have severe pain in a molar‑tooth, and prevailed upon the doctor to attend to him. This was probably done to gain time until the Magistrate and the Thanedar on receiving the signal should reach the spot. Something was made in argument of the admission by Ghulam Hussain that the Thanedar had told him to act with cleverness so that the trap should succeed. The cleverness that was practised was apparently this stratagem by Ghulam Hussain to hold the doctor in his place. In the raid report, the Magistrate did not put down anything concerning what the accused said when he was trapped, and in his evidence he said he could not remember whether the accused told him that Ghulam Haider had given him a currency note of Rs. 100 saying that he (accused) should get Rs. 10 out of x~ as his fee to examine a patient and return the balance to him." It is clear that this was in effect a plea set up by the accuses for having handled the money. It is a plea that was first put on record in December 1957, when in a different case, Ghulam, Haider aforesaid filed an application in a Magistrate's Court saying that he was being forced by a certain person to make a false case of bribery against Dr. Shukrani, and that in fact, what had happened was that Ghulam Haider had asked him to see his brother, and to take Rs. 5 for his conveyance to which the doctor agreed, and Ghulam Haider gave him a currency note of Rs. 100 whereupon the doctor said he only wanted Rs. 5 but Ghulam Haider said "get the note changed on the way in the Bazar." There was also produced in evidence a copy of the statement made by Ghulam Haider in the other Court where he repeated the story, but substituted "brother's wife" for `brother' as the (pretended) patient whom he wanted the doctor to see, and also said that what the doctor was to deduct was Rs. 10 as his fee. In Court, however, Ghulam Haider denied having made either the application or the statement. The defence, however, were not content to leave the matter there. Muhammad Hafeez, P. W. 8. dispenser at the hospital, gave some formal evidence in examination‑in‑chief, but in cross‑examination, the defence plea was put to him and he said that he was present at the raid, that Ghulam Haider gave a currency note to the doctor saying that he wanted him to see a patient living in Ahmadpur town, and the doctor said that his fee was Rs. 10 and Ghulam Haider handing over a 100‑rupee note said that he could deduct that amount and return Rs. 90 to him, whereupon, the doctor called his peon, Faiz Muhammad by name to get the change for the note but before he could arrive, the raiding party reached the spot, and Shakir Ali Khan snatched the currency dote from the accused's hand. Another witness, Muhammad Abdul Khaliq, P. W. 11, who was also dispenser at the Civil Hospital was called to give some technical evidence, but in cross‑examination, it was put to him and he supported the defence plea saying that he had been told by Ghulam Haider that he wanted the doctor to see a patient in Ahmadpur city, but at that time the doctor had gone to the treasury, and later when he returned to the hospital, this witness saw the doctor holding a 100‑rupee note and directing his peon Faizu to get it changed and just then the Magistrate and the Sub‑Inspector came up and caught the doctor. Ghulam Haider's statement regarding the passing of the money is corroborated in necessary details by Ghulam Hussain, constable, and has the support of the statement of Shakir Ali Khan. P. W. 4, who further said that the Magistrate himself took out Rs. 154 from the pockets of the doctor's coat. It is also supported by the Magistrate to the extent already stated. When this evidence is taken in defence plea, which was supported by two witnesses were clearly persons over whom the accused could exercise influence, a situation arises in which under section 4 of the, Prevention of Corruption Act, 1‑9q7, the Court has to presume that the gratification was received for a criminal purpose as defined f, in the Act, until the contrary is proved. In this case, all the evidence to the contrary is contained in the statements of the two dispensers, which have been disbelieved by the Courts below. As was remarked at the outset of this judgment, the delay of over three years in bringing the case to trial seems obviously to have affected the quality of the evidence given at the trial. Assuming that it was Ghulam Haider. P. W. 2, who made the statements Exh. D. B. and Exh. D. C. yet it is remarkable that he should choose to make them in another case, and later should deny them in the case in which the relevant facts came up for consideration. It is remarkable again that the Magistrate should after three years remember certain important matters of details in an incident of only a few minutes duration, when never mentioned totem in his raid re ort at all. A doctor is in a position to confer aid comfort to persons in a walks of life, particularly if he is attached to a Government Hospital. The learned Single Judge in the High Court has strongly criticised the conduct of the Magistrate in this case, and there seems to, be no question but that that criticism is deserved. It is difficult to suppose that the variations in the Magistrate's statements were due to recollection. It is more natural to regard them as erred by other considerations, including perhaps recollection of services rendered. As for the two dispensers, being men under influence of the accused, their story was worthy only of summary rejection. It is a very usual plea set up by persons caught in the act of receiving illegal gratification that the money was paid in discharge of a debt, or as advance payment for some purchase to be made or service to be rendered. The explanation here offered is in line with that practice, and it is to be noted that it was not put in plain terms to Ghulam Haider, P. W. 2, that these were the circumstances in which he passed the money to the doctor. Taking the evidence in relation to the circumstances, the view taken by the Courts below was plainly a tenable one. Mr. Mahmud Ali complained of an irregularity on the part of the trial Judge in taking a statement from Dr. Shukrani on the day which was fixed for pronouncement of judgment, at a time when the entire case had been completed and arguments had already been heard on an earlier date, and the accused was only present in order to hear judgment. A trial Court undoubtedly has authority to question the accused person at any stage of the trial. Section 342 of the Criminal Procedure Code makes provision to this effect. But it would obviously be an irregularity going to the legality of the trial if a Sessions Judge were to question the accused person after the assessors had given their verdict, and to allow his judgment to be influenced by what was said. In the present case, there is no such prejudice. It is true that in his examination at the close of the prosecution evidence, the doctor was not asked to state his version of the case, nor did he say anything to suggest that he had received the money from Ghulam Haidar. But as has been pointed out, it was the defence plea throughout the presentation of the pro secution case that the money had been received by way of advance payment for examination of a private patient, and the balance out of the 100‑rupee note was to be returned. In other words, the presumption in section 4 of the Prevention of Corruption Act, 1947, arose upon the assumption of these facts as the basis of the defence case, and if the accused desired that this should be accepted in bar Of the offence, the burden was upon him to establish by positive evidence that the truth was as had been put to certain prosecution witnesses. He chose not to produce any defence evidence, and the matter appearing in support of the defence plea on the record has been held, on good grounds, not to be sufficient to establish that plea. Consequently, the examination of the doctor just before judgment was pro nounced was not of prejudice to the defence case. The offence was committed nearly eight years ago, and the sentence awarded is a year's imprisonment and a fine. This Court, however, does not interfere with legal sentences, and in this case it must be said that having regard to the nature of the offence, the sentence awarded is not excessive. Circumstances such as the delay which occurred may, however, be taken into account by the Provincial Government for exercise of their power of remission or reduction. 1 would dismiss this appeal. FAZLE‑AKBAR, J.‑I agree. HAMOODUR RAHMAN, J.‑I agree. A. H. Appeal dismissed.