P L D 1959 Supreme Court (Pak (PLP)

No question of locus penitentiae arises in such cases. Where the accused, who was a serishtedar of a Magistrate's Court attempted to receive bribe and in order to get it he put pressure on the complainant by refusing to number and seal the release orders of the complainant's party and his attempt would have succeeded, but for the circumstance that the com plainant had not sufficient money on his person and could not succeed in collecting the sum which would satisfy the accused. Held, that the offence of "attempt" under S. 161, P. P. C. was complete: Jamil Hussain Rizvi, Advocate‑General, West Pakistan (Abdul Qadir, Advocate,, Supreme Court, with him) instructed by Ijaz Ali, Attorney for Appellant. Khalid Ishaq, Advocate, Supreme Court, instructed by Zahir Abbas, Attorney for Respondent. Date of hearing: November 14, 1958. AMIRUDDIN AHMAD, J

the judgment and order of a single Judge of Court of West Pakistan, Karachi Bench, by which the learned Judge set aside the conviction and sentence imposed on the respondent by the Special Judge of Larkana and ordered him to be released on a point of law. The appeal is by the State. The facts giving rise to this appeal are that in April 1954 there were proceedings under section 107 of the Code of Criminal Procedure against two parties of Maris and Bugtis, both of whom were defendants in two separate proceedings. They made up their differences and bails were allowed to both the parties. On the 16th of April 1954 the Sub‑Divisional Magistrate, Larkana, allowed bail to 20 or 25 persons belonging to the Mari party who were to be released. The release orders in the usual course were sent to Serishtedar Illahi Bux, who is the respondent in this case, to be numbered and stamped with the seal of the Court and to be made over to Behram, the representative of the Maris, to be taken to the Jail authorities by him for release of his men. When the papers reached the respondent, who was a public servant, he demanded his "dues" before he would do the needful with regard to the release orders. When Behram said that he had no money, the respondent asked him to get out and made a gesture as if he wanted to tear up the orders. Behram then took out Rs. 15, all that he had at the time, and gave them to the respondent who after taking the money threw it away as being insufficient. Behram then went out and succeeded in collecting another Rs.

10. He then went back to the respondent, picked up the Rs. 15 that were lying on his table and gave Rs. 25 to him. The respon dent again threw away the money saying that it was not enough and rode away on his bicycle. After the respondent had gone away, Behram and others went to the Sub‑Divisional Magistrate in the evening at his bungalow and complained to him about the accused not having handed over the release orders to them. The Sub‑Divisional Magistrate then called the accused from his house, got the bonds from him, found that they were not sealed, had them sealed and completed by the respondent and handed them over to Behram and others. He then made a report to the Collector about the conduct of the respondent. An Investigation followed, which dragged on for some time. Sanction was obtained from the Deputy Commissioner in due course and the respon dent was sent up for trial early in 1957. The defence of the respondent was that it was Behram who offered money to him as bribe, which he refused to accept; that he put down the numbers on the release orders but by over sight forgot to put seals on the papers and after handing over the same to Behram he had gone away; and that he was over worked that day and on account of oversight omitted to put the seals. After discussing the entire evidence in the case and con sidering the discrepancies in minor points in the evidence, the Special Judge disbelieved the statement of the respondent that he failed to seal the bonds through over‑work or over‑sight, and found that the bonds were deliberately not only not sealed but also not numbered by the respondent because he was not paid the amount demanded; that the respondent demanded money for doing his duty as Serishtedar for getting the warrants signed from the Sub‑Divisional Magistrate and for doing other procedural work in connection with the release of the defendants and when Rs. 25 were paid to him, he refused to accept them as being inadequate. On these findings he convicted the respondent under section 161 of the Pakistan Penal Code and section 5 (2) of Act II of 1947 and sentenced him to undergo rigorous imprisonment for 12 months. On appeal by the respondent to the High Court, the learned Judge, who dealt with it, agreed with the finding of the trial Court that the respondent had made the demand for illegal gratification, but further held that "the normal conception of attempt is that a man has done all that lies in his power towards the commission of an offence, but his efforts are cut short or frustrated by circumstances beyond his control. It has been held that a demand for gratification made and refused amounts to an attempt, but a demand by itself does not appear to me necessarily sufficient to constitute an attempt", and that "a locus penitentiae existed and that the attempt was not carried to completion." On this view of the law the learned Judge of the High Court set aside the conviction and ordered the respondent to be released. As it appeared to us that the learned Judge had taken a wrong view of the law, the respondent was called upon to support the judgment and it was submitted that demand does not amount to attempt which was only an invitation to offer bribe and that the facts proved and found did not warrant the conviction under section 161 of the Pakistan Penal Code or section 5 (2) of Act 11 of 1947. We are unable to accept this argument. Under section 161 of the Pakistan Penal Code and the corresponding section of the Prevention of Corruption Act, 1947, attempts to obtain any gratification whatever, other than legal remuneration, by a public servant is as much an offence under those sections as actual acceptance or receipt of a bribe. On the facts found by the two Courts in this case the respondent attempted to receive bribe and in order to get it he put pressure on the complainant Behram and his party by refusing to number and seal the release orders and his attempt would have succeeded, but for the circumstances that Behram had not sufficient money on his person and could not succeed in collecting the same which would satisfy the respondent. No question of locus penitentiae arises in such cases. To our mind, the offence was complete) and the learned Judge of the High Court decided the case on a wrong view of the law. We, therefore, allow this appeal, set aside the order of the High Court, and restore the original‑con viction and sentence. The respondent should be rearrested and required to serve out the sentence. A. H. Appeal accepted.