P L D 1964 Supreme Court 266 (PLP)

On this occasion too, Ali Kausar and S. I. Ghulam Haider were there, sitting outside in the same car. They went off and the next morning he learnt that Saeed Ahmad had been arrested. Later, Saeed Ahmad was released on bail and the money was paid back about a month later. Another significant statement made by Hakim Sher Ahmad is as follows :‑ "I knew that the accused was innocent as he had gone to get somebody trapped for bribe but the next morning I learnt that he had been trapped himself for no fault of his." Evaluation of the merits of these two totally different versions of how Saeed Ahmad was taken to the Inspector was essential ford decision in the case. The Special Judge doubted the truth of S. I. Ghulam Haider's evidence, mainly because while the Magistrate said he was "loitering on the lawn" when Saeed Ahmad was with Inspector Cheema, that he came into the Rest House after the conclusion of the first talk and that he appeared after the arrest had been effected, he himself had given the impression that he ceased to take any active part in the matter after taking Saeed Ahmad to the Inspector. He also believed the statements of Ali Kausar and Hakim sher Ahmad. In the High Court, stress was laid on the fact that the Police Officers had "no ill‑feeling or grudge against the respondent" and were therefore unlikely to implicate him falsely. Ali Kausar was thought to be interested in Saeed Ahmad as they were both involved in the transactions complained of, and Hakim Sher Ahmad was disbelieved because it seemed that being Saeed Ahmad's "immediate neighbour," it was not improbable that he had chosen to support Saeed Ahmad's version "on account of his relations with him." The High Court's finding of lack of interest in the Police Officers ignores the clear fact that they were trying to arrange for Saeed Ahmad to commit the offence within their trap. Mr. Brohi was therefore justified in arguing that there was a probability of S. I. Ghulam Haider doing a little urging behind the scenes, and he could rely on the visible difference between S. I. Ghulam Haider's statement and that of the other pro secution witnesses regarding S. I. Ghulam Haider's presence and movements during the material time. But these discrepancies are not by themselves support for the presence of Ali Kausar also behind the scenes throughout, or for the truth of Hakim Sher Ahmad's statement. Ali Kausar is clearly an interested witness, and his evidence bears marks of falsity so obviously that it requires corroboration in respect of all material details to be accepted. As for Hakim Sher Ahmad, his behaviour was altogether too naive to be believed. Knowing, as he professes, that Ali Kausar was under arrest, and that Saeed Ahmad was in danger of immediate arrest, as an experienced man of mature years, he would be expected to receive a request for a large loan, at that juncture, with much greater caution than he showed. Further, the excuse given to him, viz., that the money was to be used to trap S. I. Ghulam Haider was one which he should never have accepted in the circumstances. Firstly, he could see that S. I. Ghulam Haider was with the others in the same car. Secondly, it was not for himself that Saeed Ahmad was seeking the, loan, and there was a danger of his declining to accept personal liability later. The risks were such that no reasonable person would have advanced a loan, particularly of so large an amount, in the circumstances. No record of the loan was kept, and none of its repayment. Against this, I would set what I have already found, namely, that the Magistrate's evidence of the conversation between Saeed Ahmad and the Inspector, which is unimpeachable, altogether excludes the possibility that Saeed Ahmad was acting under a threat of arrest, either for himself or for Ali Kausar. The defence went altogether too far in this direction by getting from the mouth of Ali Kausar evidence of a clear threat to both him and Saeed Ahmad, by Inspector Cheema at the Cantonment Police Station that morning. That was a false statement. One principal piece of evidence on which a material part of the case turns is thus the record made by the Magistrate of the conversation between Saeed Ahmad and Inspector Cheema. It serves, in my opinion, to negative the defence allegation of the payment being induced by threats of arrest offered to both Saeed Ahmad and Ali Kausar by S. I. Ghulam Haider, between 8 p.m. and 9 p.m. that evening, by Inspector Cheema to Ali Kausar at about 10 a.m. that morning, and again by Inspector Cheema to Saeed Ahmad in the course of the conversation at the Rest House. But that is not, by itself, sufficient to exclude all possibility of the exercise of influence by one or both of the Police Officers to secure commission of the offence. It is necessary to examine with some closeness the events which preceded the actions on the evening of the 11th June in order to determine what was the moving force behind the payment of the bribe, that is, whether the action proceeded purely from the volition of Saeed Ahmad, or he was not acting as a free man when he did it. The series of events is complex, and there is no question but that the two Police Officers behaved so as to give the impression that one or the other of them was open to such an approach. Consequently, their actions have an equivocal quality, and it is not possible to reach a conclusion by a mere acceptance of their evidence coupled with a brief reason or two for rejecting the defence evidence, as the learned Judges in the High Court have done. The entire background must be con sidered, and each action of the Police Officers must be checked against other proved facts to determine whether it was devoid of the character of pressure upon Saeed Ahmad. Mr. Brohi has stressed that aspect of these actions which inclines in favour of belief in pressure, but on a full analysis, I have come to the conclusion that there was no pressure. The prosecution story is that it was when S. I. Ghulam Haider first asked for certain records for the years 1952, 1953, 1954 and 1955 from the Food Department, on the 20th April 1956, that Sated Ahmad and Ali Kausar made the offer to pay Rs. 1,200 in advance for a favourable report and Rs. 800 when the report was made. S. I. Ghulam Haider had been deputed to enquire into a lengthy complaint made by one Muhammad Bakhsh (whose particulars were given) of misuse of Government property, false charging of travelling allowance, abetment of black‑marketing by specified dealers, taking of bribes for restoring cancelled depot licenses and for purchasing sub‑standard wheat on Government account, living rent‑free in a private house by compensating the landlord by giving him sugar depots and buying wheat through him, and using official influence to secure a supply of cloth from a Multan mill for Saeed Ahmad's brother's shop in Lyallpur. Saeed Ahmad was the person principally complained against, but Ali Kausar was named as an accomplice, and it is to be noted that details of dates and places, and names of dealers, of the landlord, etc. were given. Part of the defence was that persons inside Saeed Ahmad's office, who were working under him were responsible for the complaint, and the wealth of detail in the complaint makes this easy to believe. It also indicate the probability that the records taken by S. I. Ghulam Haider were likely to furnish proof of the irregularities alleged. The criticism of S. I. Ghulam Haider's statement that the bribe was offered on the day on which he first went to the Food Office in Multan was that such conduct was improbable in the extreme. Unless something tangible had been found against the officers concerned, they were unlikely to come forward with such an offer. It had been admitted that Saeed Ahmad at first declined to hand over the records, and had reported the matter to the Deputy Commissioner, who had sent for S. I. Ghulam Haider. But it is also en the record that when S. I. Ghulam Haider said the enquiry had been ordered by the Government, and refusal to hand over the records must be put into writing, the Deputy Commissioner directed Saeed Ahmad to comply. At that stage, it became clear that enquiry could not be avoided, and it being a secret Police inquiry, it would not be unnatural for the persons concerned to lose no time in laying the ground for a favourable result. The evidence of the Police Officers including the Superin tendent of Police, Anti‑Corruption, Mr. Abu Saeed and Inspector Cheema is that on return from Multan, S. I. Ghulam Haider reported that there had been such an offer and gave the details. A good deal turns upon the fact that the sum of Rs. 1,200 which was eventually handed over, and which was mentioned by Saeed Ahmad in the conversation with Inspector Cheema of his own accord (i.e. it was not reached by agreement between Saeed Ahmad and Inspector Cheema in the course of the conversation) had been mentioned two months earlier by S. I. Ghulam Haider to S. P. Abu Saeed in Lahore. This fact enables the conclusion to be reached that an offer of this precise amount was made on the earliest occasion, at the very commencement of the enquiry. For the evidence is that thereafter S. I. Ghulam Haider only questioned the complainant and two or three other persons before reporting to S. P. Abu Saeed, who thereupon handed over the enquiry to a senior officer Inspector Cheema. This officer too made no further enquiry, and only met Saeed Ahmad once, for a few minutes' talk while standing in the Food Office, when he merely told Saeed Ahmad he was in Multan for a secret enquiry, without giving any further details. The argument was raised when the enquiry was at a standstill, and nothing is said to have appeared against Saeed Ahmad, why should the latter come forward with so large a bribe ? The prosecution reply is that the action taken by the Police Officers was designed to test the earlier promise of a bribe for a favourable report, and it is not unreasonable that being called upon to deal with an allegedly dishonest and corrupt officer, they may have thought that to trap him in an act of corruption towards themselves would be the short way to deal with him. There was an offer, and they had to test whether it was really meant. There is strong support for this view in the recorded words used by Saeed Ahmad when he handed over the envelope with the money to Inspector Cheema, viz :‑ "Here are Rs. 1,

200. Please make sure. You will find how dependable I am, when I meet (you) separately." That is only understandable as the declaration of a man who was giving proof of his being a man of his word, and it becomes necessary then to assume that the man had given his word earlier. The question is then raised for the defence‑how were the Police Officers so sure that Saeed Ahmad would come forward with the bribe on the 11th June, so that they came in a group from Lahore to Multan for this precise purpose ? And if they were not sure, but were going to procure payment of the money, should not the defence allegation of the use of threats of arrest be taken seriously ? The answers are to be found in the facts, for the Police Officers themselves have not been questioned how they proposed to meet al! contingencies. S. P. Abu Saeed stated that he was acting under the instructions of Government in laying the trap, and joined in it himself because the culprit was a Government officer. Receiving the report of a bribe having been offered to S. I. Ghulam Haider, he asked Inspector Cheema to verify it, and both he and Inspector Cheema have said that the latter's report was that such an offer had indeed been made. The trap was intended to test the offer, and it is evident that there was no firm expectation that it was certain of success. The Magistrate's report itself shows that when Saeed Ahmad left the Rest House at the end of his first con versation with Inspector Cheema, and the watching officers met together, the reaction was‑ We thought that this was the end of it, anyhow we stuck to our guns . . . . . . S. I. Ghulam Haider was present when this was said. That circumstance negatives the story of continuous behind‑the‑scenes pressure upon Saeed Ahmad by S. I. Ghulam Haider until he came forward with the money, and further establishes that the culprit was being left free to walk into the trap or not, as he chose. The sole purpose operating on his mind that appears from the facts was that on which the Police Officers were relying, namely, fulfilment of the promise made earlier. For their part, the investigating officers had acted so as to gain the culprit's confidence by going easy with the enquiry. The defence story of how the accused was taken to the Rest House that evening has already been stated, together with Ali Kausar's account of the pressure put upon him by S. I. Ghulam Haider as well as Inspector Cheema that morning. I find it impossible to accept that story as true, for nothing in the proved conduct of Saeed Ahmad at his meeting with Inspector Cheema provides support for it. The prosecution version is entirely different. It is that following upon the arrival of S. I. Ghulam Haider in Multan on the 8th June, and of S. P. Abu Saeed and Inspector Cheema on the 9th June, the 10th June being a Sunday, S. I. Ghulam Haider in obedience to instructions went to Saeed Ahmad's office on the morning of the 11th June, and meeting him there, asked him to hand over further records. Saeed Ahmad's reaction was as follows:‑ He said that I should be kind to him, and accept Rs. 1,200 which he had already promised and not to take the record into possession. S. I. Ghulam Haider refused the offer, and told him that Inspector Cheema was in charge of the enquiry now, whereupon Saeed Ahmad asked him to wait and not take the record until he himself had met Inspector Cheema, which he would do that evening. S. I. Ghulam Haider told him where the Inspector was staying in Multan. When this was communicated to S. P. Abu Saeed, he then went forward with the arrangements for the trap. He went to Muzaffargarb, a District headquarters only 25 miles from Multan, and obtained the services of Mr. Zakaullah, a Magistrate posted there, to supervise the trap, as he did not trust the local officials, how high so ever, not to tip off Saeed Ahmad. So the trap was successfully laid. But as to S. I. Ghulam Haider's meeting with Saeed Ahmad in his office on the morning of the 11th June, the defence met it not only with Ali Kausar's statement as a witness, but also with a statement by Saeed Ahmad that he only went to his office that morning for a few minutes, and then went away to Mian Channu, about 25 miles away, on official business, from where he only returned in the evening. Ali Kausar's evidence has already been considered and found wanting in conviction. It is curious that all he could say about Saeed Ahmad's movements that morning was that he learnt he had come to the office that morning and had gone out somewhere. An officer working immediately under another is expected to know about the latter's movements in some detail. And Saeed Ahmad has led no other evidence to show that he went to Mian Channu that day, or that he did not see S. I. Ghulam Haider in his office that morning. When records were first asked for on the 20th April by S. I. Ghulam Haider, Saeed Ahmad had had recourse to the Deputy Commissioner, who supported him up to a point. If on the 11th June with no sign of any enquiry in the interval, Ali Kausar had been faced with a demand for a bribe, under threat of serious consequences, as he says, the natural thing to expect would be that (a) he would get into touch with Saeed Ahmad at once, wherever he was, and (b) he would, even in the absence of Saeed Ahmad have recourse to the Deputy Commissioner once again. The Police Officers in the case were themselves doubtful whether the Multan District authorities would support them. The merest hint to Ali Kausar or Saeed Ahmad that they must not pay anything would have been sufficient to foil the trap. Nothing of the kind appears, and what remains is‑(1) a request by Saeed Ahmad to be permitted to fulfil his promise, (2) another to be allowed to meet Inspector Cheema, (3) an actual meeting covered by a trap which was arranged only when it was known that the culprit was coming, and (4) following a conversation in which Saeed Ahmad took initiative throughout in the references to a bribe, in the sum of Rs. 1,200 (5) payment of that sum to Inspector Cheema, (6) with the remark "Here are Rs. 1,200 make sure‑you will find how dependable I am." As to the presence of S. I. Ghulam Haider at the Rest House, it was natural that Saeed Ahmad should ask this officer to accompany him to Inspector Cheema, but the fact that he was still There when Saeed Ahmad left the Rest House to fetch the money gives the lie to the defence story, as told by Ali Kausar and Hakim Sher Ahmad, sufficiently to exclude the allegation of continuous pressure being applied by him to secure payment of the bribe. Once it was known, and Sated Ahmad had made sure, that Inspector Cheema was in charge of the enquiry, payment to S. I. Ghulam Haider was out of the question, and the doubts appearing on the point in the evidence as to Saeed Ahmad's behaviour are clearly to be traced to the Inspector refusing to take the money, and saying at the same time that Saeed Ahmad could pay it to S. I. Ghulam Haider, if the latter would accept it. It was entirely natural for Saeed Ahmad that he should have contrived to put the money into the Inspector's own hands, and so he fell into the trap. His explanation that he tried to induce the Inspector to go towards the car, so that the passing of the money should be witnessed carries no conviction. There was no independent witness outside, for according to his version only S. I. Ghulam Haider and his own assistant Ali Kausar were in the car. The reason appearing from the Magistrate's evidence, namely, that he wanted to go into the dark, where the passing of the money would not be seen by any one is a sufficient and satisfactory explanation. It has been necessary for me to re‑examine the entire evidence and circumstances at considerable length in this judgment before coming to these conclusions owing to the very exceptional nature of the case. The Special Judge's acceptance of the story of Ali Kausar and Hakim Sher Ahmad is based on a failure to appreciate that the conduct of the Police Officers was designed to be an invitation to Saeed Ahmad to commit a crime, and consequently bad the appearance of complicity in that crime. Superficial examination of the facts was not sufficient for deter mination of the question whether they ware acting in good faith. It was necessary to relate their account of their actions and the to discover whether their intentions at all stages were borne out by the central facts, which could be held proved beyond doubt. The case was clearly of the agent provocateur type, in which the Police Officers were themselves the agents. Their evidence could not be accepted at its face value, but required for more careful scrutiny than was given to it by the learned Judges in the High Court, before being accepted in full. It remains to consider, finally, two questions, namely (1) whether the offence can be found to have been committed, after the change in the law effected in 1962, which exonerates a person who pays a bribe under inducement, and (2) what is the degree of criminality displayed by Saeed Ahmad, which determines the punishment he should receive. On the view which I think is the correct one, Saeed Ahmad acted throughout on his responsibility. If there was inducement, it was by Saeed Ahmad to Inspector Cheema, to "be kind" and take the money. Things were arranged so by the Police Officers that Saeed Ahmad thought he was being "met separately" and so could make the payment without being observed. That does not amount to inducement, and the change in the law made in 1962 is therefore without effect on the case. But there can be no doubt that the final action of the accused was influenced by the equivocal attitude displayed by Inspector Cheema when he told Saeed Ahmad that he was free to pay the bribe to S. I. Ghulam Haider, if the latter would accept it. His proper duty was to warn Saeed Ahmad to do no such things, and Saeed Ahmad, being aware of this, could not but have felt that although both S. I. Ghulam Haider and Inspector Cheema had individually refused to accept the bribe from him, he was now bound to pay the promised amount if he valued his safety. The situation was one of his own making, through his haling come forward with the offer, but a word in the opposite sense from Inspector Cheema would have left him free to pursue the matter or not as he chose. As a result of what Inspector Cheema said, he was no longer entirely free, and that is a factor which, in my opinion, should be given weight in relation to the punishment he deserves. The case against him is reaching finality more than seven years after the commission of the offence, and he has undergone the anxiety and expense of a protected trial and two appeals. Bearing the circumstances in mind, I would, while maintaining the convictions under section 165‑A, P. P. C. reduce his sentence) to the imprisonment already undergone, and fine of Rs. 1,000 or in default two months' rigorous imprisonment. B. Z. KAIKAUS, J.‑

‑The plea of the accused is that he paid the money under pressure of the threat of arrest. We have to determine in the first place whether this plea receives support from the record. If we find on this point in favour of the appellant the next question would be whether the appellant is on account of this finding absolved altogether of liability or whether he will still he guilty of some offence. While determining of the appeal before the High Court would debar the Courts from pronouncing the appellant guilty. With respect to the plea of threat of arrest there are two points which are prominent. On the one hand it does not appear reasonable that without any previous talk whatsoever between the appellant and the Sub‑Inspector with respect to the payment of a bribe a raid was arranged with the object of arresting the appellant in the act of paying a bribe to Inspector Cheema. There does not appear any reason why Sub‑Inspector Ghulam Haider or Inspector Cheema should have assumed that they will be able to arrest in the act of giving bribe P person with whom there had been no negotiations about a bribe at all. It is to be observed that according to the appellant the first time when there was any talk of payment of money between him and Ghulam Haider was the evening of the 11th June, that is, the day of the raid. It is also to be noted that Ghulam Haider, Sub‑Inspector, had mentioned a sum of two thousand rupees and had said that twelve hundred out of it was to be paid at once and eight hundred after a favourable report was made. It is hardly probable that he could anticipate without any previous talk about a bribe that he will be able to prevail upon the appellant to pay a sum of exactly twelve hundred rupees on the 11th June to Inspector Cheema. On the other hand it is difficult to accept the prosecution version with respect to the offer of a bribe. That version is that on the very day when Ghulam Haider came to the office of the appellant asking for records and the appellant made a reference to the Deputy Commissioner as to whether the records should be handed over, the appellant made an offer of Rs. 2,000 to Ghulam Haider. According to the statement of Ghulam Haider the appellant did not know what the complaint was which was being inquired into. No enquiry had as yet been made against the appellant. It is true that before the Deputy Commissioner when asking for records of the Department Ghulam Haider had said in the presence of the appellant that if there was nothing in the records then the appellant had nothing to fear which meant that the inquiry did involve the appellant. But the mere existence of an inquiry would not be a sufficient motive com pelling the appellant to take immediate steps to offer a bribe. This is one circumstance which does not support the prosecution case. Another circumstance is the attitude of Inspector Cheema. Mr. Abu Saeed, S. P. had, according to the prosecution case, directed Inspector Cheema not only to take over the inquiry against the appellant, but also to inquire into the report made by Ghulam Haider as to the offer of a bribe. Inspector Cheema says he made an inquiry and confirmed the report of Ghulam Haider. But when questioned as to what inquiries he made he replied that the inquiries were secret and he did not disclose their nature. He did not say whom he had examined to find out whether the bribe had been offered. Obviously the only persons whom Cheema could contact were the appellants or Ali Kausar Zaidi. Admittedly he did not contact either of them. This want of inquiry raises a suspicion as to the allegation of Ghulam Haider that he had been offered a bribe by the appellant. Giving serious thought to the matter it appears to me that it is possible there was some talk of a bribe between Ali Kausar Zaidi and Ghulam Haider. It would be remembered that Ali Kausar had sent a telegram to the appellant to return on the 9th. It may be that the telegram was the result of some pressure by Ghulam Haider. It is not impossible too that even on the earliest visit of Ghulam Haider there had been some talk between him and Ali Kausar Zaidi as to the payment of a bribe. It may be that this is the explanation of the arrangement of a raid. It may have been assumed that Ali Kausar Zaidi was speaking not only for himself but also for the appellant and in any case the raid might have been expected to be successful against Ali Kausar Zaidi if not against the appellant. However all this is conjecture and it is sufficient to say that in view of the improbability of the prosecution case I would not held it proved that the appellant had offered a bribe to Ghulam Haider before the 11th June. The next point to consider is whether on the 11th June it was the appellant who, without any duress, made an offer of a bribe or whether he acted under the pressure of a threat of arrest. The appellant had made payment of twelve hundred rupees. Apart from the threat of arrest there is no other circumstance appearing in the record which may have obliged the appellant to make the payment. The inquiry against the appellant bad not as yet been commenced by Inspector Cheema. According to Ghulam Haider he had met the appellant in his own office on the 11th June and had just asked him for some more records when the appellant repeated his offer of a bribe. I have not accepted the previous offer and if there was no previous offer there does not appear to be any good reason why the appellant should have himself made an effort to pay a sum of Rs. 1,200 that very day. I think, what happened on that day is incapable of any reasonable explanation except that a threat of arrest% was held out. The talk between the appellant and Inspector Cheema also supports the version of the appellant. The appellant had gone and asked Inspector Cheema whether he should pay Rs. 1,200 to Ghulam Haider. This would show that Ghulam Haider was already demanding this sum of Rs. 1,

200. The impression which the talk between Inspector Cheema and the appellant creates is that the appellant was not quite sure as to the attitude of Inspector Cheema and wanted to act in accordance with that attitude. If Inspector Cheema did not approve of the act of Ghulam Haider then he would make a complaint against Ghulam Haider, and if on the other hand Inspector Cheema raised no objection to the demand of bribe by Ghulam Haider it would mean that the two were co‑operating and that the bribe was being asked for with the approval of Inspector Cheema. On the facts, therefore, I would hold that any previous offer of bribe by the appellant to Ghulam Haider is not proved and that the payment which he was making on the 11th was on account of a threat that he would be arrested if he did not pay this amount. The question now for consideration is whether the appellant would be guilty of offence under section 165‑A of the Pakistan Penal Code. The contention on behalf of the appellant is that there being no material at all as yet before Inspector Cheema against the appellant the threat held out was not the threat of an act in the capacity of a public officer ; the receipt of money by Inspector Cheema would in these circumstances not amount to an offence under section 161, P. P. C. and, therefore, the question of abetment of such an offence would not arise. Before proceeding further it will be convenient to reproduce sections 161 and 165 A of the Pakistan Penal Code. "

161. Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, (with the Central or any Provincial Government or Legislature), or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. "165‑A. Whoever abets any offence punishable under section 161 or section 165 shall, whether the offence abetted is or is not committed in consequence of the abetment, be punished with the punishment provided for the offence." An offence under section 165‑A is only the abetment of an offence under section 161, P. P. C. In order to determine whether an offence under section 165‑A was committed the question to determine is whether in receiving Rs. 1,200 Inspector Cheema would have been guilty of an offence under section 161, P. P. C. if it was not a mere trap but a true occurrence. When considering the question whether the appellant would be guilty under section 165‑A we have to take into con sideration not the state of mind of Inspector Cheema, but of the appellant. We have to determine the guilt of the appellant on the basis of what he believed to be the facts. If on those facts Inspector Cheema would be guilty under section 161, P. P. C. then the appellant would be guilty under section 165‑A, P. P. C. The contention on behalf of the appellant is that the offence committed by Inspector Cheema would under the circumstances be one under section 384, P. P. C., that is extortion, and not one under section 161, P. P. C. The ground urged in support of this contention is that there were no materials at all before Inspector Cheema for arresting the appellant and the arrest would under the circumstances be a wholly mala fide act which could not be regarded as an official act. I would first state the circumstances as the appellant believed them to be and for this purpose I will reproduce the relevant portion of his own written statement. It may be explained here that when examined under section 342, P. P. C. the. appellant had simply stated that he would file a statement in which he would explain all the circumstances. The relevant portion of his written statement runs "In the evening I was sitting with my neighbour Hakim Sher Ahmad in the lawn of my house that Ghulam Haider S. I. and the A. F. C. came in a car and I was told by Ghulam Haider that I was to be interrogated by the Inspector of Police, who was staying in the Railway Rest House, in connection with an enquiry, for which he had earlier taken the records. He further revealed that the enquiry was against me and Ali Kausar A. F. C. Ali Kausar took me aside and he was physically and mentally shaken and said that he was virtually under S. I's. arrest and that similar fate awaited me. On this I was non‑plussed and could not remain unaffected and Ghulam Haider further threatened that the matter had come to a final head and that I should accompany him to the Rest House. At the same time he offered to help us if we would pay him and his Inspector Rs. 1,

200. Ghulam Haider again argued that we should not waste time and meet the demand of his Inspector, because there is no other way out. We accompanied Ghulam Haider under duress. On reaching the Rest House Ghulam Haider took me alone, leaving the A. F. C. in the car. On reaching there Inspector met me in the lawn and after having a few preliminary talks indicating that he was in charge of the enquiry, involving very serious allegations against me and the A. F. C. He further indicated that the inquiry had reached a stage which may result in our arrests and then asked me to accompany him in the Verandah of the Rest House for interrogation. There I tried to humour him in every way and during the talk I hinted that his S. I. Ghulam Haider was extorting a sum of Rs. 1,200 and asked his advice what to do in the matter, expecting that he would discourage or entrap the S. I. as usually happens when a report is made to a higher officer. Surprisingly the Inspector told me that I may give the money to him, i.e., the S. I. The Inspector further asked me if I bad the money with me and I replied that I had not the money with me. The Inspector then hinted that I should bring the money. I came out to apprise my companion of the situation. Then Ghulam Haider S. I. again insisted that the Inspector was out to take money and that without meeting this demand we could not avoid arrest. Under this stress the S. I. escorted us in the same car and we borrowed Rs. 1,200 from Hakim Sher Ahmad. On being brought to the Rest House Ghulam Haider S. I. again stayed out in the car and I went inside to bring the Inspector so that he may witness the payment of the amount to the S. I., but the Inspector declined to go out. I then went to the car and was again told by the S. I. that the Inspector himself desired the money and therefore, we should pay and be free. It was in these circumstances that when I went in with the money, I was arrested. The whole drama had been pre‑planned and arranged. I was not a free agent. The money had been extorted as stated above." An offence under section 161, P. P. C. is committed if a public servant accepts or obtains any gratification from a person for doing or for bearing to do any official act. Would the act of arrest by Inspector Cheema under the circumstances be an official act? It will be observed that according to the written statement of the appellant there was an inquiry pending against him ; his records had already been taken possession of by the Special Police Establishment for the purpose of that inquiry ; Ghulam Haider bad gone to call the appellant for interrogation by Inspector Cheema in connection with that inqury ; Inspector Cheema had told the appellant that there were serious allegations against him and he was liable to be arrested ; and the Inspector had asked him to come to the Verandah of the rest house for interrogation. I will not add to these some circumstances that appear in the evidence against the appellant and will consider the effect of the circumstances accepted by the appellant. Can it be said that under the circumstances if Inspector Cheema in fact took the money which he appeared to be taking, he would not be guilty of an offence under section 161, P. P. C. ? The answer to this question would depend upon whether we are prepared to hold that an act purporting to be an official act would cease to be official if it was mala fide. The sole basis of the argument as to the non‑applicability of section 161, P. P. C. is that there was no material at all as yet before the Inspector on the basis of which he could have arrested the appellant. I may point out here that this point does not appear to have been made the ground of attack in the Courts below and it is possible for the prosecution to urge that this is not a proper stage for an argument being advanced on the assumption of fact with respect to which there was no contest in the Court in which evidence was led. There are, however, some indications on the record that in fact there was no sufficient case against the appellant for the appellant was never sent up for trial nor proceeded against departmentally and as I am dealing with an accused I would assume that there was no good ground for the arrest of the appellant at that stage by Inspector Cheema. But then is it possible to support the proposition that when some proceedings are pending against a person before a public servant, the public servant can receive money from that person without being guilty of an offence under section 161, P. P. C. if his official act against that person would be mala fide and not based on any material. Although we are here concerned with the case of a person who has paid a bribe, the determination of the question of law before us is as to the person who receives a bribe and we are being asked to hold that a bribe ceases to be one if it is taken by a public servant who intends to act mala fide. If there be a case pending before a Magistrate and as a matter of fact there be no material at all before the Magistrate to convict that person should he not be guilty of an offence under section 161, P. P. C. if he by a threat obtains a bribe from the accused for not convicting him? The Magistrate knows full well that no case has been made against the accused and that if he convicts the accused it would be a wholly mala fide act. Can we say that such an act will not be an official act and if on a threat of conviction he receives money from the accused he is not guilty of an offence under section 161, P. P. C. ? To take an example of a non‑judicial act, if an Import Controller threatens persons holding permits for import that their licences will be forfeited and starts proceedings against them just for show knowing full well that in law there is no ground whatsoever for forfeiture of the permits and obtains money from persons holding permits by this threat would he not be guilty of an offence under section 161, P. P. C.? "Official act" under section 161, P. P. C. could not possibly have been intended to apply only to acts which are performed bona fide. A public servant is guilty of an offence under section 161, P. P: C. not only in a case where except for the bribe he would have passed an order bona fide but even in a case where he is quite prepared to pass a wholly improper and mala fide order which the party concerned wants to avoid by paying the bribe. It will be pertinent to observe that the interpretation of section 161, P. P. C. put forward by learned counsel for the appellant would result in the mala fide nature of the proposed act of the public servant being a complete answer to a prose cution under section 161, P. P. C. The accused would have simply to show that the act to avoid which bribe was to be paid was a mala fide act. If a Magistrate who received a bribe for acquitting an accused could show that there was no material on which the accused could have been convicted and the ac which was being avoided by the payment of a bribe was a mala fide act, he would be entitled to an acquittal. It may perhaps be said that although the public servant who receives a bribe for failing to perform a mala fide ac cannot be prosecuted under section 161, P. P. C. he would b liable to prosecution under section 384, P. P. C. This argument is in my opinion without force. It is not necessary for the public servant to hold out an open threat of a mala fide act. He may just insinuate or have it conveyed by some means to the person concerned that there would be an order against him if he did not pay a bribe. The public servant concerned would not be liable in such a case either under section 384, P. P. C. or under section 161, P. P. C. At the same time it is to remembered that there is a big difference in a trial under section 384, P. P. C. and a trial under section 161, P. P. C. In the former case the whole onus is on the prosecution and in the latter case when payment of money is proved there are certain presumptions under section 4 of the Prevention of Corruption Act against the accused. I have next to consider a contention put forward by learned counsel for the appellant that if money is paid under a threat it does not constitute abetment at all. This argument can be rejected on a simple reading of the provisions of the Pakistan G Penal Code relating to abetment as well as on a consideration of section 94 of the Pakistan Penal Code. Even section 165‑B which came into force after the appeal was filed in the High Court contains a strong argument against the contention of learned counsel. Under section 107, P. P. C. a person abets the doing of a thing if he inter alia aids by an act or illegal omission the doing of that thing. Under explanation 2 a person who either prior to or at the time of the commission of an act facilitates the doing of an act is said to aid the doing of that act. The offence of which Inspector Cheema would have been guilty under section 161, P. P. C. would be the obtaining of gratification. It is obvious that for the obtaining of gratification the payment was necessary and he who pays aids in the obtaining. As a matter of fact learned counsel for the appellant does not contend that payment of gratification does not amount to aid in the obtaining of gratification, his contention being that because the payment was under a threat it is not a voluntary act and therefore should not be regarded as his act. The argument of learned counsel amounts to a general proposition that when a person does an act which otherwise amounts to an offence it ceases to be an offence if it is performed under threat of some injury. Not only is there in the Pakistan Penal Code no warrant for such a proposition there is a clear provision in section 94 to the contrary. Section 94, P. P. C. runs "

94. Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint." It is obvious from this section that even if there is a threat of death, but not of instant death, the person who does an act in consequence of such a threat is liable in the same way as a person who does it without any such threat. Section 165‑B, P. P. C. which came into force on 6‑6‑1962 runs: "165‑B. Certain abettors excepted.‑A person shall be deemed not to abet an offence punishable under section 161 or section 165 if he is induced, compelled, coerced, or intimidated to offer or give any such gratification as is referred to in section 161 for any of the purposes mentioned therein, or any valuable thing without consideration, or for an inadequate consideration, to any such public servant as is referred to in section 165." By means of this section a protection was given to those who paid bribes on account of threat, inducement, etc. The implication of this section is that previous to its coming into force the payment of a bribe in the circumstances to which it relates did constitute an abetment for otherwise the section would be redundant. The marginal note to the section says "certain abettors excepted, which means that although these persons were abettors they were exempted from the provisions relating to abetment. The word "deemed" also points in the same direction. I would hold therefore that the appellant would be guilty of an offence under section 165‑A, P. P. C. I would like to point out here that the appellant was convicted not only under section 165‑A, P. P. C., but also under section 5 (2) of the H Prevention of Corruption Act. As the latter section applies to public servants who receive gratification, it appears to me that the learned Judges of the High Court while holding the appellant guilty under section 5 (2) were only convicting him of the abetment of an offence under section 5 (2). Had I not convicted the appellant under section 165‑A I would not have found much difficulty in convicting him of an abetment of "misconduct" the offence punishable under section 5 (2) of the Prevention of Corruption Act. A perusal of section 5 (1) which defines miscon duct would show that so far as this provision is concerned there is no scope for any argument based on mala fides. Clauses (b) and (d) of section 5 (1) would be clearly applicable even to an act which is not an official act. Inspector Cheema would clearly be guilty of an offence under section 5 (2) of the Prevention of Corruption Act even if he was acting altogether mala fide. So even if it could be held that the act of the appellant would not fall under section 165‑A, P. P. C. there would be no escape from the conclusion that he was guilty of abetment of the misconduct of a public servant an offence punishable under section 5 (2) of the Prevention of Corruption Act. There remains only the argument put forward by learned counsel for the appellant that as during the pendency of the appeal before the High Court the Pakistan Penal Code was amended and section 165‑B was introduced, the learned Judges of the High Court should have decided the guilt of the accused not on the basis of the law as it stood on the date when he committed the offence, but in accordance with law as it stood when they decided the appeal. As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects which are to be determined, the law is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law which comes into force either during the pendency of the proceedings in a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication. If a person died before 1948 and he was governed in matters of inheritance by custom, an act passed in the year 1948 according to which all his property is to descend to his heirs in accordance with Muhammadan Law has obviously no effect whatsoever on the rights of parties even though the litigation began after the new act came into force. When rights once vest in parties they are not affected by any legislation that has merely prospective effect. This is the position so far as substantive rights are concerned. So far as the procedural provisions are concerned the ordinary rule is the Courts continue to have the jurisdiction which they had at the time when a proceeding was instituted even though that jurisdic tion is subsequently taken away, but an interpretation of the new Act may lead to a different result. Not long ago we held that all appeals which were competent under the old Constitution could be filed if the judgment under appeal had been delivered when the previous Constitution was still in force. Even if the appeal was in such a case filed after the coming into force of the new Constitution that would make no difference to the competence of the appeal. It is true that sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass an order of that kind even in a pending proceeding, but as I have said this will depend upon the interpretation of the new statute. It is not necessary to argue this matter at length in vie of the provision that is contained in section 6 of the General Clauses Act. This section runs: "

6. Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not‑

(a) revive anything not in farce or existing at the time a which the repeal takes effect ; or (b) affect the previous operation of any enactment s repealed or anything duly done or suffered thereunder ; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." It will be observed that in accordance with this section all rights, liabilities, etc. continue in spite of repeal and all proceedings can be taken and continued which could have been taken o continued if the repealing Act did not come into force. When I asked learned counsel for the appellant what he had to say in reply to this section his only answer was that this section applies to a repeal and not to an amendment and before us there is a case of an amendment. Every amendment contains a repeal for the law in the form in which it stood previously disappears and a new law comes into force. There is no difference at all between a case where the Legislature says that a particular section will stand amended in a particular way and a case where it says that the section stands repealed and its place will be taken by a new section, if the new section is the same as the amended section. Whenever there is an amendment the Legislature could very well have said that the previous provision would be omitted and the provision as amended would be inserted. There is no reason for giving any different effect to these two methods which achieve the same result. At the same time there is no difference in principle between repeal and amendment and if in the case of a total repeal a proceeding can be continued as if there was no repeal why should the proceeding not be continued in the case of an amended provision ? Whether by an act a person commits or does not commit an offence is a matter not of procedure but of substantive law. A person who commits an offence incurs a liability at the time when he commits it. That liability sticks to him and does no disappear by any subsequent amendment or repeal unless to the amendment or repeal be added something that expressly takes away the liability. We are dealing here with a case of sub stantive right or liability, but ‑ even if we were dealing with a procedural amendment section 6 of the General Clauses Act would be a complete answer to the argument put forward on behalf of the appellant. It was urged that the word "deemed" in section 165‑B is to be regarded as a direction to the Court to convict or not to convict. It is hardly necessary to discuss this argument at all in view of section 6 of the General Clauses Act, but let me state that the word "deemed" does not bear this interpretation. The word "deemed" was used because an exception was being created in favour of certain abettors. Although the acts of those persons fell within the definition of abetment it was being provided that their acts would not b abetment. The intention of section 165‑B was not that those persons who have by law committed an offence should be held not guilty. The intention was that their acts would henceforth not constitute an offence at all. It is impossible to attribute an intention to the Legislature that it pronounces an act to be an offence, but gives a direction that the person who commits it should not be held guilty. Section 165‑B relates to sub stantive law and it states what is henceforth not to be an offence. I would, therefore, hold the appellant to be guilty under section 165‑A, P. P. C. So far as punishment is concerned, however, I do not think that the circumstances call for any more than a nominal punishment. I have found the appellant guilt of what is no longer an offence by the enactment of section 165‑B. The Legislature has while enacting section 165‑B shown its attitude towards persons who pay gratification under threats, inducements, etc. The only case made out against the appellant is that being afraid of an immediate arrest he paid a bribe to Inspector Cheema. The fact that no proceedings had been taken against him in respect of his alleged misconduct goes to show that as a matter of fact there was no material before the police against him. I would maintain the conviction of the appellant under section 165‑A and would sentence the appellant to imprisonment till the raising of the Court and a fine of Rs.

200. HAMOODUR RAHMAN, J.‑

I have had the advantage of reading in advance the judgments proposed to be delivered by my Lord the Chief Justice and my learned brother Kaikaus, J. who are both agreed that the conviction of the appellant under section 165‑A of the Pakistan Penal Code by the High Court should be maintained. I, too, am of the view that the convictions of the appellant under section 165‑A of the Pakistan Penal Code and section 5 (2) of the Prevention of Corruption Act, 1947, should be maintained substantially upon the same grounds as given in the judgment of my Lord the Chief Justice. I entirely agree with him that the evidence in this case sufficiently establishes that the payment alleged to have been made by the appellant was with a view to induce the Inspector of Police to make a favourable report and that the story that the payment was made to avoid a threatened arrest has not been established upon the evidence. I am also in agreement that the appellant was not successful in establishing that he paid the money under any pressure. In this view of the matter I do not find it necessary to enter upon the other questions of law ; namely, as to whether the offence under section 165‑A of the Pakistan Penal Code can be committed where the official act sought to be influenced by the payment of the bribe is itself a mala fide act, and as to whether the commission of an offence of this nature under a threat involves the same degree of criminality or not ; and would, therefore, reserve my opinion on these questions for the present. So far as the other question is concerned ; namely, as to whether the incorporation of section 165‑B in the Pakistan Penal Code, during the pendency of the appeal in the High Court, made the immunity given by that section available to the appellant ; I also agree that the guilt of the appellant had to be determined according to the state of the law prevailing a the time the crime, alleged in the present case against the appellant, was committed, namely, the 11th of June 1956. So far as the question of sentence is concerned, I am in agreement with my Lord the Chief Justice that this is a fit case in which some reduction should be made therein. I would, therefore, agree with the order proposed by my Lord the Chief Justice. We maintain the conviction of the appellant, but in accordance with the view of the majority, we reduce his sentence to the imprisonment already undergone, and fine of Rs. 1,000 or in default two months' rigorous imprisonment. A. H. Order accordingly.