P L D 1959 (W (PLP)

Dated 11th December 1953. It seems that as a result of this application Mr. Abid Raza who was the Additional Treasury Officer, Karachi and was also the Inspecting Officer to the Chief Commissioner, Karachi, was directed by the District Magistrate to inspect the accounts of the Court of Mr. Qizalbash, which he did. Mr. Abid Raza has been examined in this case. This is what he said: " I was directed by the D. M. Karachi to inspect the account of the Court of Mr. Karar Hussain Additional City Magistrate, Karachi. I inspected the accounts of the Court. I see the challans sent by the Traffic Police to the Court of Mr. Karar Hussain A. C. M., Karachi. The Order of the Magistrate on the back of these challans appeared to be over written and tampered one. I see Exh. 2‑A1 to 2‑A26 they are the same and in which the figure of amount of fine imposed was over written `filed'. I saw the Summary Register. At Nos. 10665 to 10690 the accused are shown in the Register as untraceable. No process was on record to show that these accused were not served because they were untraceable. Normally such cases should not be entered in the Register as in fact they are un-disposed of. I produce the entries shown to me. They are the same that I had noted during the time of inspection Exh. 8 (marked red). I submitted my report regarding the amount which appeared to have been embezzled. The total amount mis appropriated amounted to Rs. 6294‑12‑

0. I also found that this amount was not credited to the Treasury. I produce my report which bears my signature Exh. 9." This report of Mr. Abid Raza is dated 23‑4‑1954. The applica tion of Habibur Rehman again was sent to Inspector Abdul Rashid Khan, and on the little investigation that he carried out it appeared to him that instances of corruption were dis closed against Mr. Qizalbash. He transferred the papers to the Special Police Establishment on 18‑8‑1954. One does not know what happened thereafter, but it was on the 20th of August 1956 that Mr. Usman Khan, Inspector of the Special Police Establishment, tock up the investigation, having got the papers from S. I. P. Shamsul Islam. Mr. Usman Khan applied to the District Magistrate for permission to investigate the case which was granted and is Exh.

27. He completed the investigation on 24‑11‑1956 and sent all the papers and his report for sanction for the prosecution of Mr. Karar Hussain Qizalbash, Magistrate and Jalal Khan, the present appellant. The sanction, however, which he received, was only against the appellant and not against Mr. Qizalbash. The case then came to the Court of the learned Special Judge who wrote out the substance of the accusation against appellant Jalal Khan and he having stated that he was not guilty, the case proceeded to trial. At the trial the prosecution examined War Imam, who supported the version stated above in the beginning of this judgment, and the other witnesses who were examined in the matter are the Treasury Officer Mr. Abid Raza, the clerk Habibur Rehman and another clerk Zaid Abdul Ghafoor. The investigating officers Messrs Abdul Rashid Khan and Muhammad Usman Khan were also examined and so were Muhammad Aleem Khan who was in charge of the office of the Police Inspector (Traffic), Karachi and one Khan Bahadur Head Constable who was attached to that office. I have already reproduced the relevant portion of the evidence of the Treasury Officer Abid Raza. Habibur Rehman and Zaid Abdul Ghafoor were the other two clerks of the Court of Mr. Qizalbash. Both of them more or less supported the version given by Habibur Rehman in his application to the District Magistrate, which he had made on 11‑12‑1953. They also identified the handwriting of appellant Jalal Khan on Exhs 2‑A 1 to 2‑A 26 which are on all the 26 challans in question and the endorsement thereon made in the handwriting of Jalal Khan is as follows: "Process issued not available pl. file." All these endorsements are dated 8/12. Above these endorsements in each of these 26 cases there was the amount of fine in the handwriting of the Magistrate Mr. Qizalbash, his signature and date 8/12. In each one of these 26 cases there was an over writing on the amount of fine by the Magistrate who wrote the word "File" on each of the figures of fine on these 26 challans. The Magistrate admits that both the amount of fine and the word "File" over‑written on it is in his handwriting in each of these 26 cases. The prosecution also produced the register of cases of the Court of Mr. Qizalbash wherein the entries Nos. 10665 to 10690 relate to the 26 cases referred to above. Against the first entry bearing Serial No. 10665 in the column where the finding is to be recorded, there was firstly an endorse ment "Pleads guilty. Convicted". This bears the date of 8‑12‑

53. This endorsement has been cut out and underneath it are written the words "File under section 512, Cr. P. C." Mr. Karar Hussain Qizalbash was himself examined as a Court witness in this case on the request of the appellant. He admits that on 8‑12‑53 the challans Exhs. 2‑A1 to 2‑A26 were produced before him and fines were imposed in all these cases. He admits that he has over‑written the word "File" over the amount of fine previously written by him and his explanation of it is that it was subsequently brought to his notice that the fines in these cases had not been paid and the process had returned unserved and therefore he wrote the word "File" over the words showing the amount of fine. The prosecution case against the appellant therefore rested upon the evidence of Zafar Imam, strongly corroborated by the documentary evidence consisting of Exhs. 2‑A 1 to 2‑A 26, all of which bore the endorsement in the handwriting of the appellant, which has been reproduced above and the case register. There was also the evidence of Habibur Rehman and Zaid Abdul Ghafoor which supported Zafar Imam. I have very carefully examined the evidence in this case and the arguments advanced by Mr. Muhammadali Saeed, the learned counsel appearing for the appellant, and I have not the slightest hesitation in finding that upon the evidence the appellant was guilty of an offence under section 161, P. P. C. I shall deal with this aspect of the matter in some detail a little later. But Mr. Muhammadali Saeed has bitterly complained that in this case it was really the Magistrate who, according to the prosecution evidence, was the guilty party and that his client was really innocent. He pointed out that in this case the permission sought by the Special Police Establishment Inspector for the investigation of the case only referred to the Magistrate Mr. Karar Hussain Qizalbash, that nothing was done against the appellant Jalal Khan until very late in the day, and that even when the Inspector submitted his report he had asked for sanction mainly against the Magistrate though the accused Jalal Khan was also mentioned. He says that it was clear that the Magistrate on his own admission had first recorded the sentence of fine imposed in each case and then it was the Magistrate himself who over‑wrote the word "File" on them and that the explanation given by the Magistrate of his admitted acts was such as could never have been accepted. In short, Mr. Saeed's argument is that his client the present appellant, has merely been made a scapegoat to save the Magistrate. I can understand Mr. Saeed's bitterness, though it is plainly not possible for me to hold in consequence thereof that his client is not guilty. Strangely enough the learned Special Judge, instead of addressing himself squarely to the question of guilt or otherwise of appellant Jalal Khan, seems to have taken a great deal of trouble to exonerate the Magistrate. This really he was not called upon to do and the result of which has been that even though the evidence against appellant Jalal Khan was more than sufficient, the judgment of the learned Special Judge appears very weak particularly in those parts where he is at pains to show that the Magistrate was not involved in this affair. The learned Special Judge could only take cognizance of the case upon a sanction and the sanction was only against appellant Jalal Khan. The sanctioning authority had not chosen to grant sanction against the Magistrate though the same was asked for by the investigating officer. The matter therefore, so far as the case of the Magistrate was concerned, came to an end to the extent to which the learned Special Judge was concerned and it was really not necessary for him to find explanations in favour of the Magistrate which obviously was an extremely difficult task. I would only quote two passages from his judgment in this connection: " It is admitted by Mr. Karar Hussain, when he was examined as a Court witness, that mostly in all these cases, the word `file' was written by him over the amount of fine. In this he was totally wrong. He could have passed the same order separately but he has over‑written the word `file' over the amount of fine. The reason why he passed this order is explained in his deposition to be that on all these challans, there is an endorsement of accused Jalal "Process issued, not available please file" The accused Jalal denies that this endorsement is in his handwriting but both Chisti and Habibur Rehman witnesses have identified this handwriting to be of Jalal. Mr. Qizalbash has given us the procedure, by which the cases were conducted. He clearly states, that representative of a company appears, and if he does not pay the fine and leaves the Court without payment of fine, summonses were issued against the drivers and bus conductors against whom the cases were originally filed and when they were also not served, a note was put up by the office that they were not traceable and according to the standing orders of the D. M., he passed orders on these challans file. He admits, that this order of `file' did not dispose of the cases and the police could still reopen the case and get summonses issued." And later he says " No one excepting Habibur Rehman has stated that the Magistrate took the amount through accused Jalal. He admits he was not present nor did he see even Zafar giving the amount to Jalal. Even Jalal does not state he paid this amount to the Magistrate. I have no doubt therefore that Mr. Qizalbash had nothing to do with this payment by Zafar Imam to Jalal accused nor was anything paid to Mr. Qizalbash to pass this order to file. He bona fide believed that this order was justified and he passed it on the basis of this false endorsement of the accused Jalal. The question which still remains to be answered is why did Habibur Rehman make an application dated 11‑12‑1953 against both Qizalbash and accused Jalal. Habib, Chisti and others were transferred to this Court from the Court of Mr. Shameem. Jalal was already there. At the time Habibur Rehman probably intended to kill two birds with one stroke firstly to make up the application as a defence for covering up his own wrongs and also a defence against any report or enquiry which the Magistrate may institute against him and secondly to curb down and depreciate the value of any evidence that Jalal, who was not of their party, may give against them hereafter." It does not require much effort to see that the process of reasoning of the learned Special Judge whereby he was trying to justify the Magistrate's action is faulty. I will only deal with a few of the circumstances. It is an admitted position that the sentence of fine was imposed by the Magistrate on 8‑12‑1953, Such a sentence could only have been inflicted after either the accused had pleaded guilty or the offence had been otherwise proved. It is again an admitted position that, as allowed by the rules, it was not necessary for the driver or the conductor to appear in answer to a summons and that they could be represented by the owner or somebody else. It is quite clear that War Imam had appeared in this case and pleaded guilty. Therefore, as far as the conviction and sentence in this case was concerned it was rightly passed by the Magistrate. The Magistrate says that as the fines in these 26 cases were not recovered and the office reported that process had been sent but the man was not available, he wrote the word "File" over the amount of fine in .each one of these 26 cases. A look at these over‑writings clearly shows that it was a clumsy attempt to wipe out the previous entry of fine and substitute it by the word "File," though a closer examination still shows that this was an over‑writing on certain figures. But then the sub sequent order whereby the Magistrate says that he put down the word "File" could not have been passed the same day. There is not the slightest evidence, either oral or documentary, that after the imposition of fine any attempt was made to recover it or that any process was issued or that it had come back unserved. It is an admitted position that when a fine was ordered and remained un-recovered, process had to be issued against the accused person named in the challan. No such process was issued and if we are to accept the story that as a result of non‑recovery of fine the papers were filed, there would obviously have been a separate order or note of the Magistrate or the office to that effect signed by the Magistrate and bearing the date on which it was passed. It is also important to note that this over‑writing of the Magistrate is over and not under the endorsement of the accused Jalal which says "Process issued, not available. Please file." But that is not all. This endorsement of the accused is itself dated 8‑

12. How then, after the fine was imposed on 8‑12‑1953 upon a plea of guilt, could an endorsement be made by the accused on the same day that process was issued and the man was not available? And how on the same day could the Magistrate wipe out the fine and put down the word "File" on the figures of fine? I cannot imagine a Magistrate over‑writing his subsequent order in con sequence of non‑recovery of fine by using the word "File" on the amount of fine. Then there was the application of Habibur Rehman sent to the District Magistrate on the 11th of December 1953 immediately after this mess had taken place. No, No, the position was hopeless and as 1 have said above it was not necessary for the learned Special Judge to try to explain it. But all this does not really help the appellant. Against him there is the evidence of War Imam, and from the plea of guilt and the imposition of fine on that plea on 8‑12‑1953 it is clear that somebody appeared on behalf of the company to represent all the accused persons and there is no doubt that it was Zafar Imam. War Imam had no reason whatever to falsely implicate the appel lant. In fact he could not have been very anxious to come and say all this in Court. Mr. Muhammadali Saeed suggested that the police got this statement from him to shield the Magistrate. This could not be so because the police had asked for permission to investigate the offence and the accused person that they had named was the Magistrate himself and in fact they had asked for sanction against him also. Mr. Saeed then said that having regard to evidence of the witness it would need corroboration on material points. I entirely agree with him. The witness was in no better position than an accomplice, but the corroboration, both documentary and oral, is such that I have no hesitation in accepting Zafar Imam's version that he paid Rs. 100 to the appellant which, was a gratification for the purpose of obtaining relief from the actual fine imposed in this case, which was Rs. 209 in the aggre gate. His endorsement on all the 26 challans, which I have quoted above viz.: "Process issued, not available. Please file," bears his signature and is dated 8‑12 which is the same date on which the sentence of fine was passed, is not capable of any other expla nation and is not consistent with any other hypothesis except that Jalal was involved in this matter. The learned Special Judge in the first part of his judgment which I have quoted had wrongly stated that the appellant Jalal had denied that the endorsement in question was in his handwriting. This was not so, Jalal had categorically admitted having made all these endorsements. The question No. 6 put to him in his examination and the answer given are reproduced below: "Q : It is alleged by the prosecution that you made an endorsement `Process issued, not available please file' on Exhs. 2‑A1 to 2‑A26 and thus made the Magistrate to write the word file on all the 26 motor challans. What have you to say regarding it ? A : On 8th December 1953 I had written this endorsement because summonses had returned unserved. This endorsement is not false." How could he on the 8th of December write this endorsement and say that he did so on the ground that the summonses had returned unserved, because we know that on the 8th of December the Magistrate had actually imposed the sentence of fine which as I have found was on the plea of guilt stated by Zafar Imam. Then there is the evidence of Habibur Rehman and Zaid Abdul Ghafoor. Their evidence does riot stand by itself. It is supported by Exh. 11, the application which Habibur Rehman had made to the District Magistrate on the 11th of December 1953. I therefore hold that appellant Jalal accepted a sum of Rs. 100 for showing favour to Zafar Imam who represented the accused in the 26 traffic cases in which a total fine of Rs. 209 had been imposed. It would make no difference 'if the appellant obtained this gratification for the Magistrate. The offence under section 161, P. P. C. is committed when the gratification is accept ed by a public servant for himself or for any other person. It is not disputed in this case that the appellant was a public servant. Mr. Saeed also raised a legal argument that in this case there was no permission of the Magistrate for investigation as required by law. The provision referred to by him is section 5‑A of the Prevention of Corruption Act, 1947 which reads as follows in so far as is material: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under any of the sections of the Pakistan Penal Code (Act XLV of 1860), mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the first class or make an arrest therefore without a warrant." Reliance was placed by Mr. Saeed on a judgment of Constantine, J. reported in Abdul Manan v. The State (P L D 1958 Kar. 643). There the learned Judge considered the several authorities referred to in that case and held that where the whole of the investigation from beginning to end in a case under section 5 (2), Prevention of Corruption Act (II of 1947), was conducted unauthorisedly by police officers below the rank of a Deputy Superintendent of Police or without an order of a Magistrate of the First Class as provided by section 5‑A, the conviction obtained in a trial on a report submitted after such an investigation was liable to be set aside. The learned Judge disagreed with the view taken in a Bench decision reported in The Crown v. Nur Alam (P L D 1955 Lah. 667) where S. A. Rahman, C. J. with whom Shabir Ahmed, J. agreed, held upon an examination of the various decisions for and against, that even if the investigation had not been in conformity with the provisions of the proviso to section 3 of the Prevention of Corrup tion Act, it did not necessarily follow that the subsequent trial was vitiated; and this in spite of the fact that the prosecution could not invoke section 156 (2), Criminal Procedure Code in respect of an unauthorised investigation. I would also like to point out here that an observation of our Federal Court which appears in the case reported in The Crown v. Mehar Ali (P L D 1956 F C 106) was not brought to the notice of Constantine, J. when he decided the case referred to above. This is what was observed at page 109 of the report of the Federal Court : "As regards the competency of the investigation, it is by no means clear that even if it could be established that the investi gation by the Sind Anti‑Corruption Inspector was irregular, the result would be to deprive the Special. Magistrate of jurisdiction or otherwise to affect the validity of to proceedings in the trial. But the question does not appear to us to arise, as we find that the investigation was conducted under the provisions‑of the Pakistan Special Police Establishment Ordinance, 1948, with whose provisions there was proper compliance at every stage." For the purposes, however, of the present case, it is not neces sary to go into this question because in this case there was a permission obtained by the Inspector and that permission is Exh. 27 in the case. The argument of Mr. Muhammadali Saeed was that in this permission the name of only Mr. Karar Hussain Qizalbash appeared and the name of the appellant Jalal was not mentioned. Exh. 27 read as follows: "Letter dated 27‑8‑56 from Mr. Mohammad Osman Khan, Inspector, S. P. E., Karachi requesting for permission to investigate the offence under section 5 (d) of Act II of 1947 in connec tion with Case F. I. R. No. 65/56 dated 21‑7‑56 under section 161/468, P. P. C. r/w. section 5 (d) of Act 11 of 1947 against Mr. Karrar Hussain Qizalbash XVth A. C. M., Karachi. Order of the District Magistrate, Karachi Investigation permitted. (Sd.) Z. A. HASHMI, District Magistrate, Karachi." The learned counsel contends that there was no permission as required by section 5‑A of Act If of 1947 and therefore the con viction of the appellant obtained upon an investigation carried out unauthorisedly is vitiated. It would, however, be plain from a perusal of section 5‑A, which has been quoted above, that the order of the Magistrate required is for the purposes of investiga tion of an offence mentioned in that section. The order is not required to be for an investigation against a particular individual. The object of this provision is that having regard to the nature of the offences the investigation should be conducted either by a police officer above a certain rank or with the permission of a Magistrate of the First Class so that the investigation of the offence is more careful and less impeachable. It was therefore the nature of the offence which required the observance of this procedure. Per mission in this instance was in respect of the offence which related, to the F. I. R. in the case. If as a result of the investigation, which was duly authorised, it was found that the appellant Jalal Khan was also liable to be prosecuted, it was certainly not necessary to obtain a fresh order with his name specifically mentioned in it. I therefore hold that the investigation in this case was in accordance with the provisions of section 5‑A of Act II of 1947. Mr. Muhammadali Saeed also cited several cases in support of certain general propositions of law. These are: Lt. Hector Thomas Huntley v. Emperor A I R 1944 F C 66; Emperor v. Anwar Ali A I R 1948 Lah. 27 ; A. Mirzazada v. The Crown P L D 1956 Kar. 273 ; Ata Muhammad Khan Alvi v. Crown P L D 1950 Lah. 288 and The Crown v. Amjad Ali P L D 1954 Sind

126. None of these cases help the learned counsel because the facts in those cases were entirely different. There is no quarrel with the principles stated in the cases cited above but they have no applica tion to this case. On the question of corroboration of the testimony of an accomplice in such cases, I have already said above that such a corroboration is necessary, but as I have said, there was enough corroboration in this case. There is no force in this appeal. I therefore dismiss it. The appellant is on bail ; he shall surrender to custody and serve out the rest of his sentence. A. H. Appeal dismissed.