P L D 1976 Lahore 105 (PLP)

Muhammad Shafiq, Clerk in the office of Station Superintendent Railway,. Rawalpindi, was tried for accepting Rs. 20 as illegal gratification. Khan Muhammad Jan Khan, Special Judge, Anti-Corruption, Peshawar, Camp Rawalpindi, convicted him under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to suffer R. I. for six months and to pay a fine of Rs. 200 or in default of its payment to further suffer R. I. for four months, vide his judgment and order passed on 7-1-1969. The convict has come up in appeal.

2. Briefly, the prosecution case as disclosed in the F. I. R. is that Muhammad Abdul Khaliq complainant P. W. was posted as a shunting porter in the yard at Railway Station, Rawalpindi. He was drawing Rs. 80 per month. Although for the last two years his increment at the rate of Re. 1 per year had been sanctioned according to which the complainant P. W. was to draw a sum of Rs. 82 per month but the appellant, who was posted as a concerned clerk, had kept the increment file pending and used to demand Rs. 20 as illegal gratification failing which the appellant would not draw the salary of the complainant at the rate of Rs. 82 per month. On 13-10-1966, Muhammad Abdul Khaliq, complainant P. W., promised the appellant to pay Rs. 20 as illegal gratification on the next day but since he did not want to pay that money he approached the Anti Corruption Establish ment Police, Rawalpindi who arranged the raid. On 14-10-1966, the raid party comprising of Abdul Khaliq complainant (P. W. 1), Mahmood Shah Hamdani (P. W. 3), Magistrate 1st Class, Rawalpindi, Rab Nawaz Khan Niazi (P. W. 4), Circle Officer and Sardar Ali (P. W. 5), Additional Circle Officer, Anti-Corruption Establishment, Rawalpindi, went to the platform of the Railway Station at Rawalpindi where Mahmood Shah Hamdan

6. P. W. went in the Inter-class Refreshment Room, the two Police Officers,. waited outside while the complainant went and brought the appellant in the Refreshment Room. Eventually Muhammad Abdul Khaliq complainant P. W.. succeeded in passing on the tainted amount of Rs. 20 to the appellant alongwith -his application (P. W. 1/A) for the grant of- increment to the appellant within the hearing and sight of the Raid Magistrate, Mahmood' Shah Hamdani P. W. After receiving the money and the application. the appellant left the Refreshment Room followed by the Raid Magistrate, was stopped at the platform by the Police Officers and on search the tainted amount of Rs. 20 and the application (P. W. 1/A) were recovered from the, pocket of the Pant of the appellant. The Raid Magistrate had recorded the statement of the complainant (Exh. P. W. 1/DA) before the raid and supplementary statement after the raid. He also recorded statement of the appellant (Exh. P. W. 3/DA) after the raid. Recovery memos. of the tainted money and the application were prepared and the appellant was arrested under order of the Raid Magistrate. The formal F.

1. R. was registered` at the Police Station Railway, Rawalpindi on 14-10-1966 at 13-40 hours. After completion of investigation the police challaned the appellant.

3. At the trial prosecution examined five witnesses in all. Abdul: Khaliq complainant (P. W. 1) repeated his allegations made earlier in his: application and in his statement before the Raid Magistrate. Mahmood; Shah Hamdani (P. W. 3), Magistrate 1st Class, who conducted the raid proved his proceedings of raid and further deposed that the complainant passed on the tainted money and the application to the appellant within his hearing and sight. Mr. Rab Nawaz Khan Niazi (P. W. 4) end Sardar Ali (P. W. 5), the Police Officer, corroborated the Raid Magistrate and the complainant. Abdul Majid (P. W. 2), Head Clerk, Office of the Station Superintendent Railway. Rawalpindi produced the record of incro ment statement for the month of June 1966, and deposed that Abdul Khaliq complainant P. W. was shown posted at Sargodha, was granted increment on 1-6-1966 raising his pay from Rs. 81. to Rs. 82 and the appellant was the dealing clerk of the complainant during those days. In cross-examination he deposed that the complainant was shown in the statement as pointsman and was not shown as shunting porter, there was an irregularity in the increment statement wherein the increment , of the complainant was shown from Rs. 81 to Rs. 82 but it should have been from Rs. 80 to Rs.

81. In further cross-examination he admitted to be correct that owing to those irregularities the complainant could not be paid increment, the statement produced by him had not been prepared by the appellant and the appellant could not be blamed for the non-payment of the increment to the complainant.

4. The appellant pleaded not guilty to the charge. In his statement (P. W. 3/DA) recorded by the Raid Magistrate immediately after the raid the appellant stated that Abdul Khaliq complainant had taken a loan of Rs. 20 from him and the tainted amount of Rs. 20 had been given by the complain ant to the appellant as return of that loan. He also stated that increment of the complainant had been stopped for previous one year although the reason was not known to the appellant and that the complainant bad asked the appellant to charge the increment but the appellant had expressed his inability to do so. He also stated that the complainant gave an application to the appellant to be forwarded to the higher officers and the appellant received the application from the complainant for that purpose when the same was recovered by the Raid Magistrate. In his statement under section 342, Cr. P. C. the appellant stated that his answer was the same which he gave before the Raiding Magistrate just after the raid. He further stated that the appellant was innocent, bad been falsely charged, that the complainant was a notorious mischievous man. He examined Muhammad Ashraf Butt (D. W.) who was a Clerk in the office of the Divisional Superintendent Railway, Rawalpindi. He brought the relevant file and deposed that Exh. D. W. 1 /DA was the correct copy of the letter issued by the Divisional Superintendent, Railway to the Superintendent of Police, Anti-Corruption Establishment, Rawalpindi; that the appointing and dismissing authority of the appellant was Divisional Superintendent Railway, Rawalpindi who had written that letter; that the appellant was still in service. In cross-examination by the prosecution he deposed, that the letter, dated 20-4-1968, (Exh. D. W. 1/DA) refusing sanc tion for prosecution of the appellant was signed by Taj Muhammad Khan for Divisional Superintendent, Rawalpindi while the order (P. W. 5/A) sanctioning the prosecution of the appellant was signed by one Mr. A. H. Qazmi, a Divisional Transportation Officer, on behalf of the Divisional Super intendent Railway and that the D. T. O. was Assistant of the Divisional Superintendent. In further cross-examination he deposed that in reply to the letter referred to above the Superintendent of Police, Anti-Corruption Establishment, Rawalpindi had replied vide his letter No. 2459/C dated 2-5-1968, that it was decided by the Divisional Anti-Corruption Committee that the case be sent to Court and that the sanction be accorded.

5. The learned trial Judge believed the prosecution evidence and found that the tainted money of Rs. 20 had been passed on by the complainant to the appellant alongwith the application for the grant of increment within the hearing and sight of the Raid Magistrate who was also believed. He further found that the appellant did not deny the receipt of tainted money and the explanation given by the appellant was rejected by the learned trial Judge. He also disbelieved the defence plea and found that valid sanction for prosecution of the appellant had been accorded.

6. The learned counsel for the appellant argued that trial of the appellant was vitiated in law because of the absence of valid sanction for his prosecution. His objection was that the appellant was employee of the Railway Department for whose sanction to prosecute appropriate Government was the Central Government in spite of transfer of the subject to Provincial Government till such time as the law was amended; that section 2(a) of the Pakistan Criminal Law Amendment Act, 1958 had not been amended; that only the Divisional Superintendent Railways competent to appoint and dismiss the appellant could give sanction for prosecution who refused it and instead the Divisional Transportation Officer who was Subordinate to him accorded the sanction; and that the trial of the appellant should have been by a Special Judge (Central) and not by a Special Judge (Provincial) as in the present case of the appellant. He cited State v. Dr. Abdul Aziz Qureshi (P L D 1963 Lah. 374). He submitted that even assuming that there was a valid sanction for prosecu tion it was not accorded voluntarily by the Divisional Transportation Officer who acted on the decision of the Divisional Anti-Corruption Committee and that the sanction was originally refused by the Divisional Superintendent. He relied on Sher Muhammad v. State (P L D 1962 Kar. 658). The subject of Railway was transferred from the Central to the Provin cial Government on 9-6-1962, the raid was conducted on the appellant on 14-10-1966 while the trial against him commenced on 3-10-1968. Therefore, there is no dispute that the offence was committed by the appellant at the time when Railway was a Provincial subject. According to the provisions contained in section 2(a) of the Pakistan Criminal Law Amendment Act, 1958 in relation to a Railway employee the Central Government was defined to be the appropriate Government. No amendment or adaptation in legislative sphere was carried out in that section and as held in State v. Dr. Abdul Aziz Qureshi for the Railway employees the Central Government continued to be the appropriate Government for the grant of sanction to prosecute. Therefore, there was no valid sanction for prosecution of the appellant. The second objection that only the Divisional Superintendent Railways could accord the sanction has no force. In Item No. 9 of the Schedule (under rule 5) attached with the Railway Servants (Efficiency and Discipline) Rules, 1961 a Divisional Transportation Officer in his capacity as Senior Scale Officer was authorised to accord sanction for prosecution of the Railways employees working under him. No matter the appellant was appointed originally by the Divisional Superintendent in his office but on his transfer out of that office he became subject to the control of the Divisional Transportation Officer during the tenure of his posting as a clerk in the office of the Station Superintendent Railways, Rawalpindi which is not factually in dispute. The objection of the appellant that he could not be tried by a Special Judge (Provincial) is of a technical nature. It cannon be said that the appellant was not employee of Provincial Government at the', time he committed the offence, on 14-10-1966. As such there is no irregularity in the trial of the appellant by the Special Judge (Provincial). So far as the last objection is concerned it is in evidence that the Divisional Superintendent refused to accord sanction vide his letter, dated 20-4-1968. It is also in evidence that thereafter the Police addressed a letter indicating decision of the Divisional Anti-Corruption Committee to prosecute the appellant when the Divisional Transportation Officer accorded the sanction. In the circumstances of the case it cannot be held that the sanction for prosecution by the Divisional Transportation Officer was accorded voluntarily. Even otherwise the Divisional superintendent who remained overall incharge having refused to accord sanction his subordinate, the Divisional Transporta tion Officer, could not reverse it so as to accord the sanction. The evidence on record discloses that at no stage the department suspended the appellant. The appellant continued to work in the same post at the same station throughout which circumstance leads me to the conclusion that they authority for sanction of prosecution was not inclined to accord sanction and did so on the advice of the Police. Therefore, I am of the view that there was no valid sanction for prosecution of the appellant and his trial vitiated on that score.

8. On merits the learned counsel for the appellant argued that the defence version of the return of loan was reasonably possible and got support even from the prosecution evidence; that the complainant was unreliable person who arranged the trap in mala fide manner; the meeting place for passing the tainted money was not previously fixed; that the com plainant admitted that he took loan from the appellant and the evidence showed that it was a case of return of loan. I have been taken through the entire evidence which I have considered in the light of his submissions.

9. It is in evidence that the complainant was in the habit of taking loan from the appellant from time to time. The learned trial Judge was impressed by the circumstance that 14-10-1966 being not a pay-day was not a proper date for return of the loan. The over-all appraisal of the evidence makes out a case of a reasonable doubt that the amount of Rs. 20 which was passed as tainted money by the complainant to the appellant was on account of return of the loan to the appellant. The defence version is probable. On the evidence on record and in the circumstances of the case, the prosecution has failed to prove guilt of the appellant beyond reasonable doubt.

10. As a result of above discussion, the appeal is accepted, the conviction and sentence of the appellant are set aside and his bail bonds are discharged. S. Q. Appeal accepted.