P L D 1975 Karachi 239 (PLP)

The learned Special Judge appears to be of the view that the mere fact of obtaining of money by a Government servant by illegal or corrupt means. would amount to criminal misconduct, without reference to the fact whether the money had been obtained by him in his official capacity or in the discharge of his official duties. Section 5(1)(d) reads as follows:‑ "5.‑(1) A public servant is said to commit the offence of criminal misconduct :‑ . (d) 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 valuable thing or pecuniary advantage ;". Originally section 5(1)(d) of the Prevention, of Corruption Act reads as. follows :‑ ‑ , "A public servant is said to commit the offence of criminal misconduct. in the discharge of his duty, 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." In Pakistan by Act XII of 1965, the words "in the discharge of his duty were omitted from section 5 (1)(d) of the Prevention of Corruption Act. In any case the words "as public servant" as appeared in the original enactment continue to remain on the statute.

7. The question that directly and prominently arises is whether before attracting section 5(1)(d) of the Prevention of Corruption' Act it is necessary to show that the offence has been committed by the accused in his position as a public servant viz. by reason of his status of a public servant. The learned Special Judge appears to be of the view that in all cases if a public servant employs corrupt or illegal means or abuses his position; then, regardless of his status of public servant, in the employment of' corrupt or illegal means or abuse of his position, he would be guilty under section 5(1)(d) of the Prevention of Corruption Act. The statement in the judgment appears to indicate that the learned Special Judge was of ‑the view that the Accused employing illegal or corrupt means, would be sufficient to constitute an offence under section 5(1)(d) of the Prevention of Corruption Act, regardless of the fact of his employing such means in his position as such public servant. The earlier charge had been amended because the predecessor of the learned Special Judge was of the view that ‑the appellant had not acted in the "discharge of his duties". In such context it would be of benefit to refer to the decision of the Supreme Court .of India in the case of The Stare of Ajmer v. Shivji Lal (A I R 1959 S C 847). In that case a teacher in the service of the Government had obtained money from the complainant in that case, on the pretext of procuring a Job for him. Such pretext or pretence was false so that it was concurrently held by the High Court and Special Judge that the accused was guilty of "misconduct" within the meaning of section 5(1)(d) of the Prevention of Corruption Act. An argument was raised before the Supreme Court of India that mere receiving of money by a public servant even if it be by .corrupt means P was not sufficient to make out an' offence under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act. Wanchoo, J., delivering the judgment on behalf of the Court came to the conclusion that the words "by otherwise abusing his position" read along with the words "in the discharge of his duties" make it ,clear that an offence under section 5 (1) (d) read with section 5(2) of the Prevention 9f Corruption Act cannot be considered to have been committed unless corrupt or illegal means are employed in the discharge of duties. It will be of benefit to reproduce a passage from the said judgment which reads as follows :‑ "The essence of an offence under section 5(2) read with section 5(1)(d) is that the public servant should do something in the discharge of his own duty and thereby obtain any valuable thing or pecuniary advantage for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. The words `by otherwise abusing his position' read along with the words `in the discharge of his duty' appearing in section 5(1)(d) make it quite clear that an offence under that section requires that the public servant should misconduct himself in the discharge of his own duty. In the present case the accused was a teacher and it was no part of his duty to make appointments in the Running Shed at Abu Road." In Pakistan the words "in discharge of his duty" as appearing in section 5(1)(d) of the Act have been omitted by Act No. XII of 1965, although the words "abusing his position as public servant" continue to remain in the subsection. It has thus to be seen whether by reason of omission of the words "in discharge of his duties" the spirit or meaning of the subsection has been so altered that a public servant would be deemed to be guilty of "misconduct" although . the corrupt or illegal means employed by him bear no nexus or relation 'to the discharge of his duties. In such context the words "as public servant" assume importance. The word "as" when used in conjunction with another word and 'particularly when used with holding of an office is equivalent to the phrase "fortune official". The words would mean that a public servant acts as such public servant, when he acts, patently, or at least ostensibly as a public servant. It has to be shown that the public servant has employed corrupt or illegal means in doing an act in relation to or bearing a nexus with his office or his status as public servant. To illustrate the situation may refer to two instances contemplated in the Privy Council judgment in the case of H. H. B. Gill v. The King (A I R 1948 P C 128).. As the illustrations seem to draw a wedge as between such acts of a public servant as are done within the scope of duty and outside such scope. Lord Simonds while stating the case stated as follows "Thus a Judge neither acts nor purports to act as a Judge in receiving. a bribe, though the judgment which he delivers may be such an act nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged,. can reasonably claim that what he does, he does in virtue of his office." In the celebrated case of Hari Ram Singh v. Emperor (A I R 1939 F C 43) Sulaiman, J. while dealing with cases of acts committed by a public servant has distinguished between acts done purely in a private capacity from those done in official capacity and he laid down the tests of determination in The following words "The test appears to be not that the offence is capable of being, committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty that is in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting." No doubt the Judicial Committee and the Federal Court was. considering the effect of section 197, Cr. P. C. but it cannot be overlooked that even the Prevention of Corruption Act is a special statute dealing with lapses committed by public servants. The private conduct of a public servant is not sought to be indicated by the statute and such position is amply clear on the assumption that the Legislature retained the words "as public servant" despite omission of the words "in the discharge of his duties." To me‑it appears that the word "discharge of his duties" and "as public servant" were to a vast extent tautological an the omission of the former is a step to rationalise the statute by removing the tautology because a public servant can discharge his duties only as a public servant and not otherwise or in any other manner The moment he does an act in a different capacity he could not by any interpretation be said to be discharging his duties. The concept of the dual phrases was identical and extremely overlapping because acting as a public servant would include discharge of duties.

8. The test in my humble opinion is whether a public servant expressly or ostensibly commits an offence or does an act in the garb of his office. In other words if the act of misdemeanour bears relation or connection to his status as a public servant or performance of his duties as such public servant, he may attract the penalty 'of‑section 5(1)(d) of the Prevention of Corruption Act. But on the other hand if a public servant does an act which bears no relation or even the semblance of it to the performance of his official duties, he cannot be considered to be guilty of a misdemeanour "as such public servant". Act of public servants to be indictable fall in following groups In the first group fall such acts which attach to the official character of the person doing it, in the second group fall such cases where official character or status of the accused give him the opportunity to commit an offence and in the third and the last group fall such cases where an accused is engaged in his official duty and the alleged offence is committed in his official duties (A I R 1939 F C 43). In all cases it would seem that unless the act of a person can be reasonably construed to be his act in his capacity as a public servant, the accused cannot incur the penalty provided in section 5(1)(d) of the Prevention of Corruption Act for the simple reason that he has to be shown. to have acted "as" a public servant while obtaining any benefit for himself.

9. Applying the principles that I have enunciated above I am clearly of the view that the act of the appellant in obtaining Rs. 4,000 from the complainant Muhammad Ibrahim Shaikh bore absolutely no relation to the performance of his official duties or his acting as a public servant. In fact the original first information report was registered under section 161/384/385, P. P. C. Initially the prosecution thought that in ease was one of simple extortion bearing no relation to the performance of official functions by the accused person. An offence of extortion, it Peed not be said can be committed by any person including of course even a public servant, but if a public servant is to be prosecuted under the Prevention of Corruption Act it will have to be shown affirmatively that while committing extortion he has acted in his capacity of a public servant. The present act of the appellant cannot be considered to be an act of a public servant but is definitely an act in the private capacity other appellant not punishable under section 5(1)(d) of the Prevention of Corruption Act.

10. I have on such state of facts considered the question whether the appellant should be ordered to be retried on proper charges before a proper Court. In that context Mr. Muhammad Hayat Junejo had strenuously argued that even on, facts no case had been made out against the appellant. In the present case one cannot resist the feeling that the facts are a little strange and more akin to fiction than truth. The case of the complainant was that the appellant had a grievance against him because of his transfer and in order to bring the complainant to trouble, the appellant had made applications against the complainant before the Martial Law authorities and the Anti‑Corruption Establishment. Although the applications or a copy thereof has not been produced on the record, the 'appellant has admitted in his statement under section 342, Cr. P. C. that he had made some applications against the complainant. Still one has no means of knowing as to what were the contents of such applications and to what extent the same incriminated the complainant. However, one thing is certain that the complainant felt hurt at the making of such applications which to say the least might have brought harm to the complainant. With that background one has as of necessity to scrutinise the facts with a greater care and circumspection. Initially it cannot be overlooked that the complainant has adopted a circuitous Way of filing the first information report. Although Anti Corruption Office is established. at Larkana the complainant had thought fit to travel the long way to Hyderabad and file an application before the Director of Anti‑Corruption. What is more that the Director of Anti‑Corruption also dealt with this application in an extraordinary manner 'by handing over investigation to Wazir Hussain Shah, a Deputy Super intendent at Hyderabad. It seems that Anti‑Corruption Establishment at Larkana was sought .to be kept out of the picture. Coming to the first information report itself one cannot overlook that the complainant has ,given no date or time when the appellant had demanded money from him: Whether the appellant would have demanded money from the complainant, is also not easily believable. It appears from the record that the appellant bad purposely been keeping away from the complainant because he made .a complaint against him. The appellant has produced a letter written by the complainant on 12‑7‑1971 (Exh. 9/5) showing that in connection with a request of the, appellant for one month's leave the complainant had thought it fit to address a letter to the appellant asking him to appear before him within three days "without fail" in connection with the appellant's request for a month's leave. A copy of such letter was also forwarded to the Assistant Engineer, Ghar Sub‑Division, directing him, to order ,the appellant to see the complainant. ' The appellant and the complainant were both serving at Larkana and such letter would clearly show that the appellant had perhaps avoided to see the complainant for obvious reasons. If that was the state of the mind of the appellant it leaves me a little wondering, as to how the appellant would have approached the complainant for money. The circumstances antecedent to the trap are also far from normal or ordinary. In connection with the applications made by the appellant against the complainant, the Circle Officer, Anti‑Corruption started calling the appellant through the complainant. Two letters have been produced on the record which are addressed to the complainant and have asked the complainant to direct the appellant to visit the Anti‑Corruption Office in connection with the investigation. This is certainly extraordinary behaviour of the Anti‑Corruption Establishment to have called the appellant (who was the complainant against Mr. Muhammad Ibrahim Shaikh) through Mr. Muhammad Ibrahim Shaikh, the person against whom the appellant had made an application.

11. The next point deserving consideration in this case is in regard to the documents which the prosecution alleges to be in possession of the appellant and which according to the prosecution were documents detrimental to the interest of the complainant. Such documents have been produced on record through witness Sardar Ahmed and have been marked as Exhs. 2/A to 2/l. All these documents pertain to the office of the Assistant Engineer, Ghar Sub‑Division, and not to the office of .complainant Muhammad Ibrahim Shaikh. I have examined these docu ments with the assistance of counsel on either side and find that these documents do not incriminate the complainant at all, and for such reason, it is difficult to believe that !he appellant was treading a path of blackmail on the basis of such documents. In regard to these documents, the complainant Muhammad Ibrahim Shaikh has stated that the appellant shad promised to return these documents in case he was paid Rs. 4,

000. However, in cross‑examination the complainant has stated that "the papers given by accused to me pertain to his charge" meaning thereby that the papers related to the official functions of the ,appellant rather than the ,complainant. In another question by the defence the complainant stated as follows : "The accused would have been made to hand over the papers to his successor on his transfer. According to me there was nothing material against me in the papers which the accused had given to me but the accused had been blackmailing me regarding these papers. I had no concern so far the working of the S. D. O.'s office is concerned and the accused would be responsible for his work to the S. D. O. I can send for, any paper from the office of S. D. O. by directing the S. D. O. to produce the same." Since the complainant has made a clear admission that the documents in question contained no material against him there was hardly a necessity for the complainant, who was the boss of the appellant, to pay Rs. 4,000 to the appellant. In fact at the end of the cross‑examination the com plainant has stated that the documents concerned, were from tie record of the Divisional Store Keeper, and for such reason could not pos ibly incriminate the complainant who was the Executive Engineer. Two applications Exhs 10/A and 10/B have been produced on record and these applications which are dated 4‑8‑1971 and 11‑8‑1971 are addressed by the appellant to the Circle Officer, and contained a request that some record from the office of the complainant should be seized before the appellant could give a statement in connection with the applications. Such .applications also show that the documents in possession of the appellant did not incriminate the complainant. It is the prosecution case that the appellant had demanded Rs. 4,000 from the complainant for "disowning the applications" made by the appellant against the complainant. The complainant has stated in his evidence that the appellant had agreed to disown these applications if Rs. 4,000 were paid to him. At the time of trap the complainant produced two unsigned typed copies of an application purporting to have been prepared by the appellant and addressed to the Circle Officer of Anti -Corruption Establishment, Larkana. In order to understand significance of these two applications it will be of benefit to reproduce the following passage from the same : "To me it appears that some enemy of mine has done this in my name just to malign me and put me in trouble bar making me low in the eyes of my officers who are very kind to me and I have got no complaint against any officer. I not only disown the application but I have got no knowledge of any thing mentioned in the application nor I have got any documents concerning any matter mentioned in the application." It would thus seem that the prosecution case was that at the time of trap the appellant had brought two unsigned applications purported to be addressed to the Circle Officer and in effect disowning the applications made by the appellant against the complainant. These two applications which are Exhs. 5/E and 5/F on the record bear no date and are not signed by the appellant. There is as such no guarantee that these applications were brought by the appellant to the complainant at the time, of trap What is more suspicious is the circumstance that the complainant should have paid Rs. 4,000 to the appellant without even asking the appellant to sign such applications. In such context complainant Muhammad Ibrahim Shaikh has been cross‑examined, and he found it difficult to give an explanation for the circumstance of applications not being signed, by the appellant, by stating that although he had asked the appellant to sign the applications, the appellant told him that he was in a hurry and would "give it" to the complainant on some other occasion. This is indeed strange and creates a suspicion in regard to the authenticity of these documents viz. applications. In respect of such applications the. appellant has stated that these were not secured by the trapping party from him and went on to state further that D. S. P. Wazir Hussain Shah had called him in the personal office of the complainant and pressed. him to sign the two applications which he refused to sign. The learned Special Judge while dealing with this aspect of the case has thought that the absence of signature of the appellant on these two applications was. of no consequence, because there was no risk of losing Rs. 4,000 viz. the tainted money in this case. This, to say the least, is an assumption in favour of the prosecution and was not justified in the circumstances of this case. In common course of events these applications should have been., signed by the appellant.

11. In regard to the evidence in the Court I cannot overlook that the two mashirs and D. S. P. Wazir Ali Shah were not produced to give evidence. These mashirs as well as the D. S. P. were present at the time of trap proceedings but no reason has been disclosed why these witnesses were held back. It has also come in evidence that immediately after the trap the appellant made a statement in writing before the D. S. P. and the Magistrate, but even such statement has been withheld by the prosecution. No doubt evidence of these witnesses and the documents were very material in the case and since the same have been withheld an adverse inference against the prosecution has to be drawn. What is indeed more surprising that no witness had deposed as to talks that took place between the complainant and the appellant immediately before the money was passed. The circumstances are that the trap party was sitting in the next adjoining room and even the paint on the glass panes had been scratched so as to enable the trap party to see the actual passing of the money. This would show that the trap party was very near the place where the complainant and the appellant were sitting. The omission of the witnesses to depose as to the conversation that took place between the complainant and the appellant immediately before the passing of the money is indeed very significant. I am of the view that when traps are laid and the evidence discloses that the trapping party had an opportunity of over‑hearing the talks between the complainant and the accused independent evidence in regard to such talks should be available and brought on record. In the present case there is total absence of evidence on that aspect.

12. The prosecution has however, examined two witnesses namely, Feroze Khan and Misbahauddin to show that the appellant had earlier to the day of trap told these witnesses on different occasions and different places that he had made applications against the complainant for obtaining money from him Feroze Khan has stated that he is Editor of a Weekly Newspaper published at Larkana. He claimed to have met the appellant in a Bazar when the appellant had told him the it he had made applications against the complainant. Witness Feroze Khan claims to have written a letter (Fxh. 3/A) to the complainant informing him about what he had learnt from the appellant and further requesting the complainant to patch up his dispute with the appellant. The letter has been produced and the same bears the date 4‑7‑1971. This witness has surprisingly gone on to state that after two months viz. long after the trap the appellant again met him at a hotel and reprimanded the witness for his having informed the complainant in regard to his previous talk. The next witness on the same point is Misbahuddin, who claims to be a P. W. D. Contractor on Rice Canal. the Division which was incharge of the complainant. He has stated that on an unspecified date he found appellant and witness Feroze Khan sitting at Al‑Madina Hotel; the same hotel in regard to which Feroze Khan had stated as the place where he had met the appellant. The witness went onto state that at that time appellant informed him that he would withdraw the applications made by him against the complainant only if the complainant paid him Rs. 4,

000. On a reading of evidence of these two witnesses I have not at all been impressed. It is inconceivable that such talks should take place in the Bazar or at hotels What is more that the time as stated by the two witnesses give a direct lie to their evidence. The first letter which has been sent by witness Feroze Khan is dated 4‑7‑1971 and Feroze Khan has stated in his evidence that he met the appellant at Al‑Madina Hotel after 2 or 3 months which would correspond to a date after the trap. Prosecution witness Misbahuddin again states that he met Feroze Khan and appellant at Al‑Madina Hotel, when the appellant stated that he was attempting to obtain Rs. 4,000 from the complainant. This would show that Misbahuddin had met the appellant and Feroze Khan much after the trap, and in those circumstances the talk about the appellant obtaining money from the complainant was absolutely inconceivable. Misbahuddin also wrote a letter to the complainant and the same letter bears the date as 7‑8‑1971. If Misbahuddin met the appellant and Feroze Khan after 2 or 3 months of the appellant's earlier meeting with Feroze Khan the dates on the two letters do not synchronise. The complainant had not stated in his report submitted to the Director of Anti‑Corruption on 11‑8‑1971 that he had received any letters from Feroze Khan or Misbahuddin. In fact these two letters were produced by the complainant before Investigating Officer on 29‑10‑1971 viz. after more than 2 months of the trap. It seems that these two witnesses were procured by the complainant at a belated stage to further tighten the noose that he had designed to lay around the appellant's neck. The evidence of these two witnesses appears to be false, and I have no hesitation in rejecting the same.

13. On a consideration of all these circumstances, the only evidence which is in regard to recovery of tainted money from the appellant, is rather weakened and doubtful. It has been urged by Mr. Muhammad Hayat Junejo that the design and pattern of the prosecution was such as indicates a desire on the part of the Investigating Agency to provide a total defence for complainant Muhammad Ibrahim Shaikh in the application that was under investigation by the Anti‑Corruption Establishment. Without recording any finding on such contention I must state that the mode of investigation in this case has been a little different from usual. Apart from this the prosecution story itself is indeed novel.

14. For the foregoing reasons I am of the view that the case against the appellant has not been established and he is entitled to an acquittal. In the result I set aside the judgment of conviction and consequent sentence that has been imposed on the appellant and hereby acquit him. The appellant is on bail and he need not surrender. S. A. H. Appeal accepted.