P L D 1955 Sind 28 (PLP)

VELLANI J.--‑The appellant has been convicted by the Special Anti‑Corruption Judge, Hyderabad, under section 5 (2) of the Prevention of Corruption Act (Central Act II) of 1947, and sentenced‑to 3 years' R. I. The case was investigated by an Inspector‑of Anti‑Cor ruption Police, and was challaned before a Special Anti -Corruption Magistrate, but from the stage after charge, was tried by the Special Anti‑Corruption. Judge, appointed under section 5 of the Sind Prevention of Bribery and Corruption Act XXIV of 1950, which came into force on 27th May, 1950. The date of the offence is 25th May, 1952. It has been said that under section 5 (4) of the Prevention of Corruption Act (Central Act II) of 1947, a police officer below the rank of Deputy Superintendent of Police, shall not investigate any offence punishable under section 5 (2) without the order of a Magistrate of the First Class, and that this case ought to have been investigated by a Deputy Superintendent of Police acid further as that has not happened the trial is vitiated. It is apparent, however that the Sind Act II bf 1952 was already in force at the date of the offence. Section 4 of this Act says that an Inspector of Anti‑Corruption Police Establishment of the Province shall be deemed, to be an officer‑in‑charge of the Police Station in the District in which he is appointed, with the consequence that he may investigate cases mentioned in the schedule to the Act which mentions offences punishable under Central Act II of 1947. The Sind Act being in force and the Anti‑Corruption Police Establishment of the Province in being investigation of the case by the Inspector of Anti corruption Police was lawful. The reason why the case could not be challaned before the Special Anti‑Corruption judge, was that no appointment of such a Judge had by then been made by the Provincial Government under section 5 of Sind Act XXIV of 1950. We therefore hold the investigation of the case lawful. The appellant being a Tapedar, the sanction to prosecute was granted by the Deputy. Collector, Nawabshah, under Clause (c) of section 6 of Central Act II of 1947. It has been said that the trial of the appellant took place before the Special Anti‑corruption Judge and under section 8 of Sind Act XXIV of 1950, the sanction of the Provincial Govern ment was required and the trial is vitiated for want of it. Section 8 of Sind Act XXVI of 1950, reads as follows :‑ "8 (1) Notwithstanding anything contained in the Code of Criminal Procedure 1898, the sanction of the Provincial Government shall be required for the prosecution under this Act of public servants for the said offences for trial by the Special Judge. (2) The Provincial Government may be general or special order authorise any subordinate officer or officers to grant sanction for prosecution on its behalf in respect of various grades of Government servants:" No question of any authorisation under subsection (2) arises. The jurisdiction of the Special judge is set out in section 6 of Sind Act XXIV of 1950, which reads as follows :‑ "(6) The Court of the Special judge shall have jurisdic tion within such territorial limits as may be fixed by notifica tion in the official Gazette in respect of cases directly sent up to it for trial by the aforesaid police establishment." The jurisdiction is confined to cases "directly sent up to it for trial," by the Anti‑Corruption Police Establishment. It has been said that section 8 (1) of the Sind Act makes the sanction of the Provincial Government necessary for prosecution under the Act, and that the wide term 'prosecution' includes all stages of the case till judgment. The case, however, is not one covered by section 6 of the Sind Act. Section 7 (1) of the Sind Act reads as follows :‑ "7 (1) Any case arising out of any of the said offences with may be pending before any Court at the time of appointment of a Special Judge under section 5 above, shall be deemed to be transferred from the said Court to that of the Special Judge exercising jurisdiction in that area." No real jurisdiction existed therefore in the Special judge to try the case, but the case must be deemed to be transferred, by fiction for want of reality, from the Court in which it was pending to the Court of the' Special Judge exercising jurisdiction in that area. It is but appropriate that the requirement of sanction to prosecute under the Act should be construed as having reference to cases which the Special Judge has by the Act, jurisdiction to try, notwithstanding the wide words in which the requirement is expressed in section 8 (1) of the Sind Act. Section 7 (1) renders a case which is to be deemed transferred, 6ne of an entirely different category. Briefly stated the facts of the case are these :‑--Maqbool Ahmed on 24th. May, 1952, went to the appellant, the Tapendar, with s. 2,400 to pay land assessment due by his father, but the appellant insisted upon a payment of Rs. 100 as Lapo before he would accept payment of any assessment. He offered Maqbool Ahmed a receipt for Rs. 2,300 after appropriating Rs. 100 for Lapo, but Maqbool declined. Maqbool then obtained from the appellant the bills of assess ment due and the following letter addressed to his father Exh. 3‑C.; "Mr. Ghulam Mohiuddin Abbasi. It is submitted that today morning of 24/5 your son had brought Rs. 2,400 but the land assessment being more, he is taking the money back to you along with the land assessment bill ; kindly sent the total land assessment at once, Do it within Monday or Tuesday so that there‑should be no further trouble to both the parties." These were handed over by the appellant to Maqbool Ahmed only after‑a promise by him that he would pay Rs. 100 as Lapo the next morning. Magbool then went to the Anti Corruption Officer arid made the following report against the appellant, at 11 a.m. on 24th May, 1952:‑- The complaint is as under: "That my father Ghulam Mohiuddin Khan and my uncle Dr. Abdul Aziz own lands at Deh 45 Nusrat and leased lands at Deh

96. Nusrat. I usually pay the land assessment to tapedar Muhammad Amin. On 24th May, 1952, at about 9.0, I went to pay the land assessment to tapedar Muhammad Amin at Taluka Office Nawabshah where he met me in the office. I gave him Rs. 2,400 towards the land assessment and asked him to issue me the receipt thereof. He refused to accept the said amount saying that I should first pay him Rs. 100 as his lapo. I told .him that my father had given me only Rs. 2,400 out of which I could not pay him anything. Thereupon he said that lie would credit Rs. 2,300 towards land assessment and appropriate Rs. 100 towards. His lapo. I demanded assessment bills and a letter from him for my father's information. He 'asked me to bring Rs. 100 on the following morning and land assessment whenever I liked. I promised to pay him bribe of Rs.

100. I have come over l1ere to file complaint of the same. The amount of Rs. 2,400 towards land assessment which he refused to take and 4 land assessment bills amounting to RS. 4303‑12‑3 along with the letter in his. Own hand‑writing which he had given me for my father, are lying with me. As per his demand, I have promised to pay him Rs. 100 as bribe on the following morn ing. At that time Shoukat Ali Pirzada was present." Illahibux, the Anti‑Corruption Inspector, then set up a trap keeping Wahidbux Resident Magistrate and one Abdul Ghani as mashits. He handed over a Rs. 100 note to Maqbool after making a‑mashirnama which made mention of the number of the note. Maqbool and his friend Shoukat sat on a bench outside the Mukhtiarkar's office 30' to 40 paces from the Court of the Resident Magistrate. The Resident Magistrate opened the western window of his chambers which enabled him to see the place where Maqbool and Shoukat sat. Shoukat went to bring the appellant to the hotel from the Mukhtiarkar's office and when he came Maqbool greeted him and ha$ talk with him. Maqbool then gave the appellant the Rs. 100 note. The appellant held it first in his hand but after proceeding together towards the Mukhtiarkar's office, put it in his pocket. As Maqbool and appellant were moving, the Magistrate and Abdul Ghani came to the North from. which place they saw the appellant putting the Rs. 100 note in his shirt pocket. Maq bool then gave the signal and the Inspector, the Resident Magistrate and Abdul Ghani rushed towards the appellant, the Inspector going ahead and catching the appellant by his arm. The appellant then took the note out of his pocket with the other hand and threw it on the ground. This was observed by the Resident Magistrate, the Mashir Abdul Ghani and Maqbool. The number of the note was verified with the number on the Mashirnama, and the inspector then made a mashirnama of what had taken place and arrested the appellant. The prosecution examined Maqbool, Wahidbux the Resident Magistrate and Illahibux the Anti‑Corruption Inspec tor. The evidence of Wahidbux has not been cross‑examined at all. When he was first examined the Special Anti‑Corrup tion Magistrate declined to reserve his cross‑examination, although the appellant's advocate made a request for an adjournment on the ground that he had not received a copy of the F. I. R. for which he lead applied and was therefore handi capped. When he was re‑called after the charge for further cross‑examination, the advocate for the appellant was absent, and it would seem from the order made by the learned trial Magistrate that the application for adjournment on that ground was handed over to him after Wahidbux had entered the box, was not cross examined and was discharged. Of course we presume the record of the Magistrate to be correct, but we cannot help thinking that the learned Magistrate should before putting Wahidbux in the box or at least before discharging him, have asked the appellant whether he could cross‑examine Wahidbux in the absence of his advocate. After the same learned Magistrate was appointed as Special Judge, that is on 13th October, 1952, the learned advocate for the appellant made an application to recall Wahidbux for cross‑examination in the interest of justice, but the learned Special Anti‑Corruption Judge rejected the application for reasons contained in the following order:‑ "Heard Mr. Akhund and A. P. P. Mr. Noor Ahmed. P. W. Maqbool is present. Let him be cross‑examined by the defence advocate as provided by section 11 of Sind‑Act XXIV of 1950. Mr. Wahidbux, the R. M. of Nawabshah is not present. He cannot be recalled as the defence had two opportunities before this to cross‑examine him but they failed to take advantage of the same. On both the occasions the defence has not cross‑examined Mr. Wahid bux who is a public servant being the R. M. of Nawabshah. He (cannot ?) be called again as I do not find it to be proper in the interest of justice as provided by section 11 of the Sind Act XXIV, 1950". The learned Special Judge had a discretion to exercise under section 11 of Act ‑XXIV, 1950, and for the appellant, the exercise of that discretion in rejecting the application had been questioned. The grounds of rejection indicate a predomi nant desire in the mind of the learned Special judge not to disturb Mr. Wahidbux because he was a public servant anti was then at Nawabshah. That is a ground of mere convenience of a witness. On the other hand Wahidbux was a very material witness against the appellant, who had not in fact been cross‑examined at all in circumstances which were unfortunate on both occasions. We cannot help thinking that the convenience of the witness was put above the interests of justice. Even not taking Wahidbux's evidence into account, we think there is in this case sufficient evidence to establish prima facie the guilt of the appellant. Maqbool Ahmed's evidence is reliable and the refusal to accept Rs. 2,400 as assessment by the appellant is supported by his F. I. R. as well as the letter obtained from appellant by Maqbool set out above. We are satisfied that the appellant refused to accept Rs. 2,400 and to give a receipt therefar to Maqbool. As to the actual payment of Rs. 100 by Maqbool to the appellant, there is the evidence of Maqbool himself and of Illahibux the Anti‑Corruption Inspector, supported by the Mashirnama, and we have no reason for not accepting their evidence. . The object of Maqbool in going to the Anti‑Cor ruption Inspector for making the report was to obviate a suspicion of false implication and to create conditions under which the truth of the complaint may be established by the conduct of the appellant himself. In his examination under section 342 Cr. P. C., the appel lant said that he had not taken Rs. 100 from Maqbool and had not demanded anything from him. As to the chit, he admitted having written it but said he did so at the instance of Maqbool, who said that his father would not otherwise believe that he had to pay so much of land assessment. He said he gave the bills Exhs. 2 (a) to 2 (d) to Maqbool, because his father had to pay much more land assessment. In iris written statement he said that the witnesses were giving evidence falsely against him because Maqbool is the son of a Superintending Engineer, Mr. Ghulam Mohiuddin and his uncle Dr. Aziz is a retired Inspector‑General of Health. We can see no reason for not taking the sum of money offered by Maqbool in part payment or towards the land assessment due and for not passing a receipt for that payment. Indeed the chit Exh. 3 C admits that Maqbool went to the appellant with Rs. 2,400 in cash for payment of land assessment. The explanation put forward by the appellant in his cross‑examination under section 342 does not in fact explain why he did not take the money and issue a receipt in the form mentioned. The conduct on the part of the appellant lends support to Maqbool's allegation that the appellant wanted Rs. 100 for his Lapo. This is the same sum as the appellant obtained from Maqbool in the trap, the ; proceedings of which have been satisfactorily proved. The evidence led in defence does not affect this reasoning. In these circumstances we find the case against the appel lant proved beyond reasonable doubt and dismiss his appeal. A. H. Appeal dismissed.