P L D 1961 Supreme Court 224 (PLP)

We consider that the argument is sound and unassailable the word "illegal" is defined in section .43 of the Penal. Code a being "applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action". In the present case, the relevant rule is worded not in terms of prohibition but, in affirmative terms as below :‑ "(c) if a Medical Officer whether of‑ the Provincial or the Subordinate Service examines a private medico‑legal (non cognizable) case other than a post‑mortem in his capacity as a I private medical practitioner he will, according to his rank, be entitled to charge the following fee from the party concerned. Rs. (1) District Health Officer or Medical Super in tendent 10 (2) Medical Officer 4 (3) Assistant Medical Officer 2 It is not indicated that the intention is to prevent these Medical Officers from charging any fee higher than that mentioned. On the other hand, it is possible to construe the rule as providing minima in respect of fees, but without going to that extent, it is sufficient to say that the rule cannot be construed and applied as if it were worded so as to prohibit the charge of any sum in excess of that specified. Even if it was so worded, it might still be a question whether, bearing in mind that this was a rule included in a large set of detailed rules applicable to Medical Officers, it could by any means be regarded as having the force and effect of law, as generally understood, so that contravention would necessarily involve an illegality. But as the wording of the rule stands, that is to say, worded as it is in the affirmative form the sense of a prohibition clearly does not appear. It is equally clear that there is nothing in the Rules or in any other law to make it an offence per se, for a Medical Officer to charge more than the prescribed sums. And finally, it is very much open to doubt whether any civil action for a payment in excess of the sums mentioned in the Rules can be maintained by a private person who has made such a payment. Therefore, it seems to us to be quite plain that the receipt by the doctor of money, for his professional services as a private medical practitioner, in excess of the small sums specified in the relevant rule does not amount to the gaining of pecuniary advantage by "illegal means". It may be a breach of Rule inviting sanctions of a departmental character, and we may be permitted to express surprise that for so small a matter, the entire machinery of criminal justice was set in motion by the Govern ment when the matter could so easily have been investigated and duly visited on the departmental side. It may perhaps be useful to state the argument which induced the learned Judges in the High Court to hold that Dr. Niaz Ahmad was guilty of criminal misconduct in this case. It had been pressed before them that the money was received by the doctor in his private capacity, but they declined to accept this on the following grounds, viz. that the doctor had been approached at the Government Hospital in his capacity as a Government doctor, that the certificate which was intended to be obtained was a certificate from a public servant which would have a higher value than a certificate from a private practitioner, that Dr. Niaz Ahmad examined Sana Ullah during office hours in the Civil Hospital, and had signed the medical certificate at Assistant Medical Officer. In the absence of anything to show that Medical officers are debarred from attending to a private case in the Government Hospital to which they are attached, during officer hours, or that they cannot use their official designation in the certificates they issue, these circumstances are clearly insufficient to constitute Dr. Niaz Ahmad's examination and certification of Sana Ullah, on official act. The learned Judges went on to say that even if the case did not fall under section 5 (1) (a) of the Prevention of Corruption Act, "it clearly falls under clause (d) of subsection (1) of section 5 of the Act, namely, that he by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself a sum of Rs. 8 which was a pecuniary advantage". The conclusion is not preceded by any examination of terms of clause (d) nor is it supported by any argument. The true- meaning to be attached to the expression "illegal means" never received consideration in the High Court. The expression is found in other legal provisions of no less importance than the Prevention of Corruption Act. It forms for instance an essential ingredient of one kind of criminal conspiracy as specified in section 120‑A of the Pakistan Penal Code. It is therefore of great importance that the expression should be used and interpreted with particularity. On examining the case we are clearly of the opinion for the reasons already given that the employment of "illegal means,' for personal enrichment has not been established in this case. We accordingly allow this appeal and acquit the appellant. S. A. RAHMAN J.‑I have had the advantage of reading in advance the judgment proposed to be delivered by my lord the Chief Justice in this case and have reached the same conclusion as my lord has arrived at, though by a slightly different route. I agree that section 161, Pakistan Penal Code, is not. attracted to the case inasmuch as the petitioner examined a private medico -legal case as he was allowed to do, under the rules and this had no reference to his official capacity and could not be described as an official act. The opposite view that prevailed in the High Court on this point is plainly untenable. The petitioner, however undoubtedly transgressed Rule 4 (c) of the Rules governing such matters. To my mind the prescription of a specific fee in the rule, by necessary implication prohibited the petitioner from demanding a higher fee. The rule had statutory force being one of the Rules promulgated by the Governor under section 241 of the Government of India Act, 1935 and continued in force by subsequent constitutional instru ments. I also find it difficult to resist the conclusion that the petitioner gained a pecuniary advantage to the extent of Rs. 8 as he charged Rs. 10 by way of fee instead of Rs. 2 as permitted by the Rule. As he obtained this advantage for himself by contravening a statutory rule, I consider that the means adopted could fairly be described as "illegal" as the act was contrary to "law". A statutory rule in my view is included within the generic term "law". The provisions of Art. 224 of the late Constitution would seem to support this view. It is not necessary that the mere infraction of a rule should amount to the commission of an offence, per se. However the contravention of a statutory rule may become punishable if the Legislature so provides, either in the rule itself or by means of a separate statute. The question, however, is whether clause (d) of subsection (1) of section 5 of the Prevention of Corruption Act covers such a case. The preamble of Act II of 1947 shows that it is designed to make more effective provision for the prevention of bribery and corruption. In other words, it aims at preserving the purity and integrity of the public services. The scheme of the Act and the provisions of Chapter IX of the Penal Code contain clear indications that they are intended to deal with offences committed with reference to the official character or capacity of public servants, whether the offender be a public servant himself or someone else who either acts as an agent for such public servant or represents that he can influence him in the performance of official acts. Coming to the specific provisions of section 5 of Act II of 1947, that clauses (a) to (c) of sub section (I) of section 5, clearly envisage a nexus between the offence contemplated and the officer concerned or his official functions. Even in clause (d) of that subsection the words "corrupt means" arid "by otherwise abusing his position as public servant", evidence an intention to reach acts which the public servant purports to perform in his official capacity It would not; therefore, be unduly straining the rules of construction to suggest that the words "illegal means" occurring therein should also have some relation to an official act or one purporting to be such an act or the official character or capacity of the public servant as such and his action in a private context would not be covered by this clause. The opening words of the section are "A public servant is said to commit the offence of criminal misconduct

"These words in my opinion lend support to the view that the acts of a public servant qua public servant are meant to be brought within the enactment. It is not to be imagined that if a public servant commits an offence in his house, having not the slightest connection with his official functions but which illegally enriches him, the Legislature con templated its punishment under this particular Act. I am, therefore, disposed to hold that the act complained of in the present case, not being one which had any relation to the petitioner's official functions or capacity or character is not within the purview of clause (d) of subsection (1) of section 5 of the Act and the appeal should be allowed on this ground. A. H. Appeal allowed