P L D 1964 Dacca 208 (PLP)

7. On these facts the learned Special Judge came to hold that though the realisation of Rs. 3 by the appellant Jabed Ali was proved, the case under section 162 of the Penal Code was not made out as the appellant had not done anything to induce any police officer to do or forebear from doing any official act or to get anything done favourable to the Beparis in the matter and as the evidence did not justify the finding that actually any Gaibandah Police had any duty on that particular day in the hat and as the evidence was not clear enough to indicate that the appellant raised money from the Beparis as a reward for getting anything done by a public servant by corrupt or illegal means.

8. But at the same time the learned Special Judge was of the opinion that the evidence and circumstances as available indicated that the appellant was in the habit of realising money from the purchasers of paddy of the Kartimari area from Kamarjani hat "by false pretext and show of threat" and that in the instant case the appellant illegally realised money from the Beparis by holding out a threat, namely, that they would not be allowed to purchase and take away the paddy from the Kamarjani hat. In that view, he convicted the appellant Jabed Ali under section 384 of the Penal Code.

9. Mr. Abu Hussain Sarker, the learned Advocate appear ing for the appellant has contended that the learned Special Judge had no jurisdiction to convict the appellant under section 384 of the Penal Code as the said offence has not been included within the Schedule mentioned in the Pakistan Criminal Law Amend ment Act, 1948 as amended up‑to‑date being Amending Act XL of 1958 (hereinafter called as the Act). Mr. Sarker has placed section 5 (1) and section 5 (2) of the Act as under: Section 5 (1); "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge." Section 5 (2) ; "The appropriate Government may, from time to time, by notification in the official Gazette, include in the schedule such other offences as it deems necessary or expedient." The amendments made from time to time do not indicate that section 384 of the Penal Code has been included in the Schedule. The learned Advocate for the State Mr. Syed Mohsin Ali on his part has also not shown any notification including section 384 of the Penal Code in the Schedule, but has referred to subsection (4) of section 6 of the Amending Act XL of 1958 which reads as under :‑ "Notwithstanding anything contained in this Act, the Special Judge may convict the accused of any offence which from the fact admitted or proved he appears to have committed."

10. Mr. Syed Mohsin Ali, the learned Advocate for the State has contended that by virtue of this provision the learned Special Judge has jurisdiction to convict the accused of any offence of the Penal Code other than offences as specified in the Schedule which from the facts admitted or proved, he appears to have committed. To throw light on the subject, Mr. Mohsin has referred to two decisions of this Court in the cases of Azizul Islam Chowdhury v. The State (9 D L R 226) and Abdul Barkat Sharnamot and others v. The State (P L 1) 1959 Dacca 617).

11. Mr. Sarker has relied on the decision of Abdul Barkat Sharnamot and others v. The State in which it was held as under: "The provisions of section 6 (4) of the Pakistan Criminal Law (Amendment) Act, 1958 do not say that the Special Judge has jurisdiction to convict the accused of any offence of the Pakistan Penal Code other than the offences specified in the Schedule to the Act which, from the facts admitted or proved, he appears to have committed. The provisions of the said sub section do mean that the Special Judge may convict the accused of any offence specified in the Schedule to the Act which from the facts admitted or proved he appears to have committed although he was charged under some other offence specified in the said Schedule." Mr. Sarker has urged that there being no charge under section 384 of the Penal Code and the appellant having no notice of such offences the conviction thereunder was void.

12. The decision in the case of Abdul Barkat supports the stand taken by Mr. Sarker. In the other decision placed by Mr. Mohsin, namely, that Azizul Islam Chowdhury v. The State which is an earlier decision of this Court it was held as under :‑

"The case against the appellant was one under section 161 of the P. P. Code, and that section finds place in clause (a) of Schedule 2 of Pakistan Criminal Law (Amendment) Act, 1948. In trying the case under section 161 and having regard to subsection (7) of section 4, Pakistan Criminal Law (Amendment) Act, 1948 the accused in fit cases could be tried for an offence under section 384, Pakistan Penal Code, even though the later section does not find a place in Schedule 1 or Schedule 2 of the Criminal Law Amendment Act."

13. It is true that in the latter decision it was observed that in trying the case under section 161 of the Pakistan Criminal Law Amendment Act, 1948 the accused in fit cases could be tried for any other offence which is not included in Schedule 1 or

2. But at the same time the learned Judges found and held that as the accused was not asked anything as to any offence under section 384 of the Penal Code as made out the conviction thereunder of the accused could not be maintained. The learned Judges, however, having found that the learned Special Judge was wrong in acquitting the accused of the offence under section 161 of the Penal Code, converted and altered the conviction under section 384 of the Penal Code to one under section 161 of the Code.

14. In our present case, I have heard both sides on the merits also and I, do not find that any case had been made out under section 162 of the Penal Code so that the earlier 9 D L R 226 decision for whatever it is worth is not attracted in the present case. The observation in that case that the accused could be tried under section 384 of the Penal Code in fit cases, remained a mere observation which no doubt is in conflict with the latter decision reported in 11 D L R 173.

15. In the facts and circumstances of the present case, and the case of Abdul Barkat Sharnamot and others v. The State is attracted and I accept that decision as binding upon me. I, there fore, hold that the learned Special Judge had no jurisdiction to convict the appellant under section 384 of the Penal Code. The only alternative, therefore, is to order retrial of the appellant under section 384 of the Penal Code by a Magistrate of the First Class. To avoid prejudicing the retrial, I refrain from saying anything on merits as to this offence.

16. In the result, the appeal is allowed, the conviction and sentence set aside and I direct that the accused be retried according to law on a charge under section 384 of the Penal Code by a Magistrate, First Class. The appellant Jobed Ali who is on bail will continue to remain so until retrial. S. Q./K. B. A. Appeal allowed.