P L D 1956 (W (PLP)

S. S. Mirza for Respondent. INAMULLAH, J.‑

The appellant has been convicted by the Special Judge, Karachi under section 161, P. P. C. and has been sentenced to imprisonment for one day and a fine of Rs. 200 ; in default of the payment of fine, the appellant was to undergo rigorous imprisonment for nine month's. The facts, shortly, are that one Mst. Chandabai occupied an evacuee house at Sukkur. One Mukhtarbai was also staying with her as a guest. After some time Mukhtarbai applied to the Custodian Department for allotment of the half portion of that house. On the other hand, Mst. Chandabai also applied for the allotment of the‑house on 26th January 1953 It is the prosecution case that the appellant was employed as a clerk in the office of the Deputy Custodian, Sukkur. Mst. Chandabai and one Amirali, who was clerk of an Advocate; had approached the appellant in this connection. The appellant used to receive such applications. The appellant demanded Rs. 40 as bribe but ultimately it was settled at Rs.

20. Mst. Chandabai made a report to the Anti‑Corruption Department on 17th February 1953, with the result that a trap was laid on 18th February 1953, and the appellant was caught red‑handed with the marked currency notes in his pocket. The appellant admitted having received Rs. 20 from Chandabai, but stated that Chandabai, had given the money to pass on to one Niaz Muhammad who was to engage an advocate for her. The main contention of Mr. Kaikobad, the learned Advocate who appeared before me for the appellant has beers' that on the day that the appellant is alleged to have accepted the bribe, he was not in a position to render any service to Mst. Chandabai. In other words, the appellant was functus officio, and as such no offence under section 161, P. P. C. can be said to have been made out. The learned Advocate relies on Eah. 10‑E. There is an entry which is dated ,4th February 1953 and reads as under :‑ 369/ 27-1-53 Chandabai Prostitute, D.251 Half portion Shikarpur Road, Chakla, splitted vide Sukkur case No. 356/ 53/1 4‑2‑53" The genuineness of this entry is not challenged by the learned Additional Advocate‑General. It is also not con tended that the allotment of half portion of the house in question had not been made on 4th February 1953. The contention of Mr. Kaikobad is that the application of Mukhtar bai having already been disposed of against Mst. Chandabai, the question of the appellant showing favour to Mst. Chandabai did not arise. It would appear from the prosecution case that the only duty of the appellant was to receive applications for allotment. Moreover it is contended that even if the appellant could render some service to Mst. Chandabai as regards the allotment of the house in ‑question, the same had already been disposed of by the Custodian Department on 4th, February 1953, and therefore, it cannot be urged that the appellant was in position' to `show favour' to Mst. Chandabai within the meaning of section 161, P. P. C. There is much force in this contention. Whatever offence the appellant may be said to have committed by accepting Rs. 20 from Chandabai can 18th February 1953, he cannot be said to have accepted bribe within the meaning of section 161, P. P. C. There is nothing on the record to show how the appellant was in a position still after 4th February 1953 to render any service or to show any favour to Mst. Chandabai. In this connection, the observation of Courts Trotter C. J. in the case of Vankatarama Naidu (30 Cr. L J 1055) is relevant. It was observed in that case that no offence under section 161 of the Penal Code was made out if the public servant to whom the bribe was given was functus officio as to the matter in respect of which the bribe was offered. In that case what had happened was that a Reserve Inspector had found the appellant physically unfit for appointment as a policeman. Thereafter the appellant gave him a five‑rupee note. It was urged in that case that the officer had already performed the duty, and therefore, the offer of the bribe did not constitute an offence under section 161, P: P. C. To the same effect is the case of Qazi Rahimullah v. The Emperor (36 Cr. L J 626). A Division Bench of the Calcutta High Court in the case of Chanan Singh and others v. Emperor through Basant Singh (44 I C 369), enunciated the same principle. I would, for the reasons given above, set aside the conviction of the appellant. The fine, if paid, to be refunded to the appellant. H. Conviction set aside.