P (PLP)

Muhammad Sharif, Assistant to the A.‑G., for Respondent. S. A. RAHMAN, J.‑Ihsan Ilahi, a police constable serving in the Sheikhupura District, was tried under section

161. Pakistan Penal Code in the Court of Malik Hakim Khan, Magistrate 1st class, Sheikhupura. He was convicted and sentenced to undergo eight month's rigorous imprisonment. The conviction and sentence were upheld on appeal by the learned Sessions Judge, Lahore. A revision petition has been presented on behalf of the convict in this Court. The facts are that the petitioner visited the house of Nawab (P. W. 1) in village Leel, on 6th of November, 1949, in the company of another constable and one, Khair Din. The petitioner was in uniform, but the other constable was in plain clothes. Khair Din is said to be a carpenter. These persons told Nawab that the wood lying in his house was evacuee property and charged him with having stolen it. They called upon Nawab to accompany them to the thana. Some other villagers including Ghulam Muhammad, Sajawal, Muhammad Din and Sajjad Hussain turned up at the spot at that time. Eventually the petitioner and his companions expressed their willingness to take no action if they were paid Rs.

140. Nawab agreed to pay them Rs. 105, after some negotiations. He borrowed Rs. 50 from one, Shahab Din, Rs. 25 from Rehman (P. W. 4) and Rs. 25 from Ghulam Muhammad (P. W. 7). He took Rs. 5 from his own house and paid the amount of Rs. 105, thus collected, through Ghulam Muhammad (P. W. 7) to Khair Din, in the presence of the petitioner. As coon as the money had passed hands, the petitioner and his companions left. Subsequently, Nawab, brought the facts to the notice of the Superintendent of Police by a written petition, on the 24th of November, 1949. After investigation, the police prosecuted the petitioner as well as Khair Din. Originally there was a joint trial of the petitioner with Khair Din as a result of which Khair Din was convicted but the petitioner was acquitted on the ground that previous sanction for his prose cution had not been obtained from the Superintendent of Police. Subsequently, this sanction was obtained and the petitioner was tried again for the same offence and convicted as mentioned above. The first point taken up by Mr. Qamar‑ud‑Din on behalf of the petitioner is that the second trial was barred under the provi sions of section 403 of the Criminal Procedure Code. That section provides that if a person has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, he shall not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him, might have been made under section 236 Criminal Procedure C', or for which he might have been convicted under section 237 ' e Code, while the previous conviction or acquittal remains in force. There are certain exceptions to the substantive provisions of this section which are not material to the present case and need not be set out here. The contention raised on behalf of the petitioner is in my opinion unsound. The words "Court of competent jurisdiction" occurring in section 403 are extremely significant. By virtue of section 6 of the Prevention of Corruption Act, 1947, no Court can take cognizance of an offence punishable under section 161 or section 165 of the Pakistan Penal Code, or under subsection (2) of section 5 of the Act itself, alleged to have been committed by a public servant, except with the previous sanction of the authority competent to remove such person from office. It is clear, therefore, that the previous trial of the petitioner, unsupported as it was by the sanction of the competent authority, was without jurisdiction, and it could not be said that the petitioner had been tried by a Court of competent jurisdiction, within the meaning of section 403 of the Criminal Procedure Code. The subsequent trial, therefore, would not be barred under the provisions of this section. This construction of the section is supported by authority. Reference may be made in this connection to Emperor v. Jiwan (1915) I, L. R. 37 All., 107), Emperor v. Ambaji Dhakya Katkari (1928) I. L. R. 3 52 Bom. 257), Nanakram v. Emperor (19 Cr. L. J. 796), Muhammad Yasin v. Emperor (27 Cr. L. J. 849) and Abdul Ghani v. Emperor (1902) I. L. R. 29 Cal. 412). It must be held therefore that the previous trial in 'the circumstances of this case, was no trial at all in the eye of law, and cannot therefore be pleaded in her of the second trial. I have consequently no hesitation in repelling the contention raised on behalf 6f the petitioner. On coming to the merits of the case, I find no ground for differing from the estimate of the evidence arrived at by the Courts below. The prosecution witnesses were not proved to be actuated by malice against the petitioner, and they made consistent state, merits supporting the prosecution case. Learned counsel for the petitioner attempted to argue that the money had been placed in the hands of Khair Din and not in those of the petitioner and he, therefore, suggested that it was not the petitioner who was guilty of accepting illegal gratification within the meaning of section 161 of the Pakistan Penal Code. The argument appears to me to be devoid of force. The statements of the P. Ws. show that the money 'was paid after the petitioner and his companions had threatened Nawab with a prosecution, and the payment was made in the presence of the petitioner to Khair Din, who was obviously his collaborator. It is inconceivable that Nawab and the other villagers would have agreed to part wtth the money unless they bad been overawed by the presence of the petitioner in police uniform. The petitioner and his companions left as soon as money was paid over to Khair Din and the inference is that they must have shared the spoils later. On the facts, therefore, I hold that the ot6nce under section 161 Pakistan Penal Code had been brought home to the petitioner and he was rightly convicted and sentenced. The petition fails and is hereby dismissed. A.H Petition dismissed.