P L D 1960 Supreme Court (Pak (PLP)

CORNELIUS, J.-This appeal by special leave is brought before the court by one Muhammad Zaheer Nadeem who stands convicted under section 161, P. P. C., read with section 5 of the Prevention of Corruption Act, 1947, and sentenced to six months' rigorous imprisonment. He was tried by a Special Judge and convicted on the 2nd January, 1958. An appeal to the High Court was dismissed on the 28th February, 1958. In the application for special leave to appeal the request was added that "as the sentence is a short one, half of which is already gone, the petitioner may be admitted to bail", and on the 15th April, 1958, when granting special leave as prayed, this Court directed that the sentence should remain suspended pending the disposal of the appeal. It would thus appear that before being released on bail Muhammad Zaheer Nadeem had undergone imprisonment for a period of about three months and a half. Muhammad Zaheer Nadeem was a clerk in the office of the Accountant General (Posts and Telegraphs) at Lahore, and it is in that capacity that he is charged with having committed the offence defined in section 161, P. P. C., of which the relevant portion reads as follows :

"Whoever, being . . . . . a public servant, accepts ..from any person, for himself . . . . any gratification whatever, other than legal remuneration, as a motive or reward for doing . . . any official act . . . . . shall be punish ed with imprisonment . . . . ". The facts found against him by the Courts below are of some what unusual character. One Ghulam Yasin (P. W. 3) had enter ed into an agreement with one Syed Mujtaba Haider acting as agent for a Mst. Masooma Begum to sell a certain plot of land for a sum of Rs. 22,

050. Rs. 3,000 were received by Ghulam Yasin as earnest money, and the agreement was that the balance would be paid by the 22nd December, 1954, failing which the agreement would be treated as cancelled and the earnest money would be forfeited. On the 20th December, 1954, Ghulam Yasin sent a telegram to Mst. Masooma Begum reading as follows :

"Get execute and register sale-deed before 22 December, 1954, otherwise you will be responsible for consequences." He received no answer to this telegram, and it seems that the transaction was never completed and he retained the earnest money. Ghulam Yasin in his evidence stated that in April, 1955; he procured a certified copy of the telegram, apprehend ing litigation. He stated further that when receiving the copy from the office of the Accountant General (P. & T.), he mentioned to some of the officials there that he was grateful for being given the copy as otherwise he would have suffered a loss of eighty or ninety thousand." The accused Muhammad Zaheer Nadeem was present at the time. The basis for this. statement has not been clarified on the record; but seems to be that after the date of the intended sale, the value of the land had appreciated a good deal. It is the prosecution case that Muhammad Zabeer Nadeem bore in mind what he had heard Ghulam Yasin say and that some six or eight months later, he made a criminal suggestion to Muhammad Tahir (P. W. 5) who was a sorter in the same office, on the same subject. On the foundation that if Ghulam Yasin stood to lose so much money, Mst. Masooma Begum on the other hand would have stood to gain an equal amount, he suggested to Muhammad Tahir that he should go to Syed Mujtaba Haider and Mst. Masooma Begum and enquire whe ther they would be willing to pay Rs. 2,000 if the original telegram were destroyed. This suggestion was repeated to Muhammad Tahir on one or two later occasions, until Muhammad Tahir decided that he would disclose the matter to his superior officers, and accordingly he related what had happened to the Assistant Accounts Officer Muhammad Usman Qureshi (P. W. 7) under whom he worked. At the request of this officer, Muhammad Tahir procured front the possession of the accused, the file it, which the original telegram was placed and delivered it to Mr. Qureshi. Thereafter, Mr. Qureshi took certain steps which led to the laying of a trap for the accused on the 26th January, 1956. Mr. I. H. Minhas (P. W. 4) a Magistrate posted at Lahore posed as an agent of Mst. Masooma Begum and met the accused at a certain cafe, where he was brought by Muhammad Tahir. There, the question of the destruction of the telegram was raised and Mr. Minhas pretended that he was grateful for the timely information sent to his principal through Muhammad Tahir and in further conversation asked how it happened that the telegram sent by Ghulam Yasin in 1954 had not yet been destroyed. The accused then told him that ordi narily telegrams were destroyed after three months, but if a copy had been obtained, the telegram would be preserved for three years.' Thereupon Mr. Minhas produced a copy of the telegram which Ghulam Yasin had sent. This had been prepar ed from the original for the purposes of the trap. Mr. Minhas gave this to the accused and said that he wished to obtain and destroy the original himself. The accused replied that he would destroy the original in his (Mr. Minhas') presence. Upon this Mr. Minhas handed over to the accused Rs. 300 in currency notes as the first instalment of the sum of Rs. 2,000 which was agreed to be paid to the accused for this service. The accused put the notes in his pocket whereupon the agreed signal was given and a Police Inspector walked in and the accused was arrested. The notes were found in a pocket of his coat. The Inspector, Ch. Aziz Ahmad who officiated on this occasion gave evidence as P. W.

8. The accused in his statement denied having made this criminal suggestion to Muhammad Tahir. He admitted that he had gone with the latter to the cafe, but said that this was only for the purpose of having tea with him, and he denied that there was a Magistrate at the cafe or that he had received any money. He produced four witnesses, none of whom said anything concerning the operation of the trap at the cafe. The evidence for the prosecution on the latter point is thorough and complete, and in the absence of rebuttal there can be no question but that the conclusions reached by the Courts below as to the receipt of money by the accused, and the purpose for which it was received, are perfectly correct. The order granting special leave to appeal reads as fol lows :

"The case held established against the petitioner is clearly an agent provocateur case of the worst type. A temptation which in the natural circumstances would probably never have arisen, was placed before the petitioner by an act of deception, involving false personation, performed by a number of officials including a Magistrate. It has been found that the petitioner succumbed to the temptation, but it is a ques tion of substantial importance whether, in all the circum stances, his conduct amounted to a crime, within the meaning of the relevant statute." It is convenient to reproduce, by way of clarification of the arguments placed before the Court at the hearing of the petition, certain passages from the written grounds of the petition which have obviously been drafted with considerable care :- "

5. That his Lordship has not considered that this is a case of "engineering an offence" wherein :

(i) there is no genuine bribe-giver or one who becomes or is employed as a decoy witness to lay the trap ; (ii) there is no demand made by the accused for receiving illegal gratification ; (iii) there is no .real person to gain anything by the tempta tion offered to secure that gain; (iv) there is nothing that could be done by the bribe-receiver to satisfy the bribe-giver ; and (v) it is a case wherein the whole thing has been made up, by ways and means manocuvered to corrupt the conscience of another by the very agency called `anti-corruption'.

6. That the point round which the whole prosecution revolves, and whereon the conviction is held and upheld, is the evidence of the Magistrate P. W. 4 regarding which the less said the better. According to the trial Court, he played the part of a C. I. D, in the words of his Lordship to use a Magistrate as an intermediary may not be commendable', while in terms of rulings he became `a limb of the police and his personality is submerged into prosecuting agency'.

7. That in this case such a part, as above-said, has been played by the learned Magistrate (P. W. 4), who himself becomes `the bribe-giver', who `falsely personates' to be an agent of Masooma Begum and who in his talk with the petitioner does not mind telling what is not true, and as such is an `accomplice' with all that the word connotes legally and morally.

8. That such a `tainted evidence' has not been corroborat ed, and could not be corroborated, by another evidence of a tainted character, nor had even that much been subjected to that `caution and scrutiny' which prudence demands and rulings enjoin.

9. That his Lordship has not at all referred to, not even touched, the absurd and impracticable manner of payment of bribe, the allegation being that the target of the demand for bribe was Rs. 2,000, that the payment of Rs. 300 on the occasion of raid was the first instalment', without any further stipulations as to `modus operandi' for the payment of the balance that is, to periodical payments of the remaining instalments, when and where ? When was the telegram to be destroyed? What in case of default? And what if the accused changed his mind at any stage ?

10. That his Lordship has not duly considered that the ob ject of the bribe, namely, the destruction of the original telegram Exh. P/A', was incapable of execution, as the same had been taken away by Muhammad Tahir P. W. only two or three days earlier, from the accused' and delivered to the Assistant Accounts Officer P. W. 7 who had kept it with him self' for further action and handed it over to police. The accused was, therefore functus officio he could render no service to the bribe-giver and there the whole make-up col lapsed.

11. That his Lordship has also not appreciated the point that it was all `much a do about nothing' fns when a certifies copy of the telegram Exh. P./A. had already been supplied to the other party (Ghulam Yasin P. W.) which is always in law available as secondary evidence', the present proposed or required destruction of that document was entirely a futile attempt which could deceive no one, and no one could lavish any money on such a foolish fraud." Much that is stated in the grounds as reproduced above must be allowed to possess substance. The transaction which the accused entered into was completely a bogus transaction, to the knowledge of the other participants in it, i.e., Mr. Minhas and Muhammad Tahir, but not to the knowledge of the accused, for otherwise he would not have received the money as he certain ly did. Therefore, it is true to say that there was "no genuine bribe-giver", and perhaps it is also true that the accused made no demand for a bribe although he did throw out the suggestion that he could render a service in return for money. It is true that the accused was not in a position to render that service, since the file containing the telegram had been taken away from his possession, and that even if he had destroyed the telegram, in all probability no advantage of any kind could have accrued to Mst. Masooma Begum. Undoubtedly, the whole thing was "made up," but, although this was done with the collaboration of the Anti-corruption agency, it is probably too much to say that the intention was to "corrupt the conscience" of Muhammad Zaheer Nadeem, since on the facts, and in the relevant respects, that conscience was already corrupted. The attack upon the reliability of the Magistrate seems un warranted. It could be said with a great deal of force that to utilize the services of a Magistrate in the manner Mr. Minhas allowed himself to be used in the present case, is calculated to affect the standing and respect of the Magistrate, and even his capacity, to do justice in cases coming before him. It cannot enhance the position of a person occupying a judicial office, in the eyes of those to whom he dispenses justice, that he engages actively in the carrying out of deceptions and frauds of this nature, even though the purpose of the action may be the public benefit. There are other classes of officials, as well as members of the public, in whom such behaviour might be excused or even regarded as fitting, but it cannot possibly be otherwise than harmful to the mentality and judicial capacity of a Magistrate or other person holding judicial office, and it would necessarily be injurious to the position of the judiciary as a whole, if the practice of utilizing Magistrates as decoys and tricksters became widespread. Nevertheless, the expression "tainted evidence" can hardly be applied to the statement of Mr. Minhas. As to the pay ment of money, it is by no means fatal to the prosecution case that, on the facts as they appear, the arrangements were left somewhat incomplete. The contentions as to the impossibility of the act which the accused undertook to do, and as to the futility of that act in relation to the purpose which the alleged bribe-giver might conceivably have wished to serve, appear to us to be wholly without force. The matter is governed by statute, and it seems to us that upon a proper construction of the section, the conviction which has been recorded against the appellant is correct. It is clear that Muhammad Zaheer Nadeem was acting as a public servant, charged with functions which might have enabled him, by processes of greater or less difficulty, to pro cure possession of the telegram in question, It is clear that he received a sum of Rs; 300, which was gratification other that,, legal remuneration, as a motive or reward for destroying the telegram in advance of the date prescribed, i.e., at a time when under the rules governing the matter, the telegram was required to be retained intact. Even though he had parted with possession of the file containing the telegram, it is clear enough that, situated as he was as an employee of the office where the telegram was kept in safe custody, he could have tried to regain possession of it by means, within his power, not without hope of success. Therefore, to say that once the telegram had gone out of his possession he could not possibly have regained possession of it for the purpose of destroying it, appears impossible. Secondly, the question whether or not any advant age could possibly accrue to any party to the transaction of sale by either preserving or destroying the telegram, would seem to be irrelevant, since the central question for determination is whether, in the circumstances of the case, the act of destroying the telegram in question could be brought within the meaning of the expression "official act" as used in section 161, P. P. C. If the telegram were destroyed upon the expiry of the pre scribed period of three years, the act of destruction would certainly be an "official act". Therefore, if the telegram were destroyed before the expiry of three years, the act of destruction would be an irregular act, but nevertheless it would undoubtedly be an official act. Similarly, if the telegram were preserved for say five years longer than the prescribed period of three years, the act of preservation would be irregular but yet an official act. The question then is narrowed down to this viz. if Muhammad Zabeer Nadeem accepted the money as a motive for destroying the telegram when only about a year of the prescribed period of three years for its preservation had elapsed, could he be held to have accepted the money as a motive or reward for doing an official act? It seems difficult to avoid the conclusion that the act would be an official act, although it might be performed irregularly, and with a criminal motive. There are contexts in which the expression "official act" has been held to carry a narrow or restricted meaning. Under section 270 of the old Government of India Act, 1935, it was laid down that the consent of the Governor-General in the case of Central Government servants, and of the Provincial Governor, in the case of a Provincial employee, should be a necessary condition of the institution of either civil or criminal proceedings "against any person in respect of any act done or purporting to be done in the execution of his duty". The section was intended to operate as a restraint upon the jurisdiction of the ordinary Courts, and it is therefore not surprising that in interpreting the expression "act done or purporting to be done in the execution of his duty" a distinction was drawn by the Courts between acts such as the acceptance of a bribe which could never be done in the execution of duty and acts such as falsification of accounts which could be represented as execution of duty. In the case of Dr. Hori Ram Singh (AIR1939FC42), the question arose as to whether the consent of the Governor of Punjab was a necessary condition to the institution of criminal proceedings under sections 409 and 477-A of the Penal Code against Dr. Hori Ram Singh. The charge under section 409 against Dr. Hori Ram Singh was preferred in respect of certain medicines which he was found to have re moved to his own house from the hospital. The charge under section 477-A was for making false entries in a stock register relating to medicines. It was held by the Federal Court that the misappropriation or conversion of the medicines to the use of the accused was a mere act of embezzlement which could not have been or even purported to have been done as an act in execution of his duty and therefore the consent of the Governor to his prosecution under that section was not necessary. But as regards the falsification of accounts, the view was expressed that it was the duty of the doctor to maintain the register in which such falsification was found, that in making the entries in question he was ostensibly professing to be discharging his official duty and that in making the false entries, he was pretending or purporting to act in the execution of that duty, even though he was acting in direct dereliction of it. The following observation from the judgment of Sir Shah Muhammad Sulaiman on the point at issue may be cited here :

" 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 . . . . . . 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 impres sion that he is so acting". Reference was made to the case of Dr. Hori Ram Singh in a later case before the Federal Court, viz. that of H. T. Hunley. (A I R 1944 F C 66). The judgment of the Court was delivered by Zafrulla Khan, J., who observed with reference to the earlier case that there :

"this Court laid down that to attract the provisions of this section it was not sufficient merely to establish that the person proceeded against was a public servant and that while acting as a public servant, or taking advantage of his position as a public servant, he did certain acts ; it must be established that the act complained of was an official act. In this case the act complained of was the act of receiving illegal grati fication. That surely could not be an act done or purporting to be done in the execution of duty". The need for reproducing these passages from the judgments of the Federal Court arises from the use in each of these judgments of the expression "official act" and the employ ment of that expression in a restrictive sense. As has been observed, the restrictive interpretation adopted in the decisions of the Federal Court was entirely appropriate to these cases, for the simple reason that what was being sought to be enforced was a statutory provision operating in restraint of the jurisdiction of the ordinary Courts. But the position is different here, and consequently a different and a wider in terpretation may appropriately be adopted, for the purpose of enforcing a salutary provision of law designed to maintain a high standard of integrity among public servants generally, such as that contained in section 161, P. P. C. It is permissible to call in aid for the interpretation of section 161, P. P. C., the provisions of the English Prevention of Corruption Act of 1906 whose language is in many respects closely similar to that of provisions in the Penal Code. By section 1 of the English Act, it is provided that if any agent corruptly accepts etc. from any person for himself or for any other person any gift or consideration as an inducement or reward for doing or forbearing to do any act in relation to his principal's affairs or business" he shall be guilty of a misdemeanour and shall be liable to conviction and punishment. By definition included in the same section, the expression "agent" includes "any person employed by or acting for another", and as to public servants the following provision was made :

"A person serving under the Crown or under any municipal, borough, county, or district council, or any board of guardians, is an agent within the meaning of this Act". The section being in pari materia, in relevant respects, it is permissible to conclude that, in the Penal Code, by the use of the expression "official act", what is meant in the case of a public servant is an act done in relation to the affairs or business of the Department in which the public servant is serving. Viewed in this light, it is probable that the act of disposal of medicines by Dr. Hori Ram Singh could be regarded as an official act although irregularly performed, since the disposal of such medicines related to the affairs or business of the hospital to which Dr. Hori Ram Singh was attached. In the present case, no question arises whether the receipt of money by Muhammad Zaheer Nadeem was an official act. The question which arises is whether in undertaking to destroy the telegram before the due date, he was undertaking to do an official act. As has been seen, the destruction of the telegram related to the affairs or business of the office in which Muhammad Zaheer Nadeem was serving. That is the correct basis upon which it should be determined whether the act which he under took to do was an official act, and to adopt any other inter pretation, particularly one by which the content of the expression would at all be minimised, would undoubtedly have the effect of diminishing the scope of the application of the section, and thereby producing the result that the mischief which the law was designed to suppress would on the contrary be perhaps advance. It is necessary in the public interest, and entirely salutary from the point of view of maintaining the integrity oil public servants, that the expression "official act" should be given, in the context of section 161, P. P. C, the widest meaning which the words will carry. On this basis, there is no escape from the conclusion that in receiving money on the one hand, and undertaking on the other hand, to destroy the telegram in question before the due date, Muhammad Zaheer Nadeem committed an offence under section 161, P. P. C. The circumstances in which he committed this offence have been detailed above, and lead to the conclusion that the accused was led into this crime by the instigation of other officials, who had no purpose other than that of procuring the commission of the crime by him. Although this does not detract from the seriousness of the crime of Muhammad Zaheer Nadeem, since the expectation is that public servants will be immune to any kind of tempta tion to deviate from the highest standard of rectitude in dealing with the matters entrusted to them, yet in view of the special circumstances of the case, and in particular of the adoption of a method of inducing the commission of this crime of which we can not at all approve, we allow this appeal to the extent of reducing the sentence of Muhammad Zaheer Nadeem to the imprisonment he has already undergone, while maintaining his conviction. A. H. Sentence reduced.