P L D 1954 Lahore 424 (PLP)

SHABIR AHMAD, J.‑Muhammad Hayat, who was a Station Master at Railway Station Daudkhel on the North Western Railway, was sent up by the Special Police Establish ment to stand trial in two cases, in one of which he was alleged to have accepted Rs. 110 as illegal gratification from Liaquat Hussain on the 10th of November 1951, and in the other Rs.24 from Ahmad Khan on that date. Both the cases were tried by Mr. Qadir Bakhsh, Special Railway Magistrate, Punjab, who by his order dated the 4th of August 1952, sentenced Muhammad Hayat in each case to one year's rigorous imprisonment and a fine of Rs. 1,000 in default of payment of which he was to undergo rigorous imprisonment for four months under section 5 of the Prevention of Cor ruption Act (11 of 1947). Muhammad Hayat appealed against the orders of the trial Magistrate to the Sessions Judge, Mian wali. The two appeals were heard by Mr. Masood Ahmad, who was then Sessions Judge, Mianwali, and were accepted. Mr. Masood Ahmad, after holding that the cases against the accused were not proved, went on to say that the sanctions which preceded the cases against Muhammad Hayat were not proper and, therefore, the trials were illegal. Against these orders of acquittal, the Provincial Government has presented two appeals the one relating to the case in which Muhammad Hayat was alleged to have taken Rs. 110 as bribe being Criminal Appeal No. 89 of 1953 and the other one Criminal Appeal No. 90 of 1953: As not only the facts of the two cases are very similar, but because the ques tions of law that require determination in them are the same, the two appeals will be disposed of together. Before I deal with the appeals, I consider it necessary to say that the way in which the cases were dealt with by Mr. Masood Ahmad was not at all proper. If the sanctions on which the prosecution relied were not proper, the Magistrate who tried the cases had no jurisdiction to take cognizance of them, because section 6 of the Prevention of Corruption Act, which existed on the Statute Book on the relevant date, was in the following terms :‑ "No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indiana Penal Code or under subsection (2) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,‑ (a) in the case of a person who is employed in connection with the affairs of the Federation and is not removable from his office save by or with the sanction of the Central Government or some higher authority, Central Government ; (b) in the case of a person who is employed in connection with the affairs of a Province and is not removable from his office save by or with the sanction of the Provincial Government or some higher authority, Provincial Govern ment (c) in the case of any other person, of the authority competent to remove him from his office. If, therefore, the learned Sessions judge had come to the conclusion that the sanctions relied upon by the prosecution suffered from the defects mentioned by him, he should have set aside the conviction on the short ground that the Magis trate had no jurisdiction to take cognizance of the offences for which the accused was tried. It was because of the manner in which the question of sanctions was dealt with by the Sessions Judge that in their appeals the Provincial Government raised the point that in view of his finding that the sanctions were not proper, the findings given by the learned Sessions Judge on the merits of the cases were entirely without jurisdiction. It is clear that if the finding of the learned Sessions judge that the sanctions were defective was correct, his findings on the merits of the case would be entirely without jurisdiction. For a proper determination of the two Government appeals, it is necessary to decide whether or not the sanctions relied upon by the prosecution were valid. The sanctions were given by the Divisional Superintendent, North Western: Railway, Rawalpindi, and their material terms were as follows:

"Whereas as a result of careful perusal of the police record of investigation and other relevant papers, I, the Divisional Superintendent, North Western Railway, Rawal pindi, have reasons to believe that Mr. Muhammad Hayat, Station Master, Railway Station Daudkhel, North Western Raliway, District Mianwali, accepted illegal gratification from one ..rendering himself liable under section 161 of the Pakistan Penal Code. I. hereby accord sanction for the prosecution of Mr. Muhammad Hayat Station Master, Daudkhel, North Western Raliway, as required under section 6 of Act TI of 1947 and (vide F. I. R. No. dated 12th of November 1951 under section 161 of the Pakistan Penal Code, Special Police Establishment, Rawalpindi). Dated 13th February 1952". The main reason of the learned Sessions judge for holding the sanctions to be defective was that the accused was in both the cases charged and convicted not under section 161 of the Pakistan Penal Code but under section 5 of Prevention of Corruption Act (II of 1947). The other reason why the learned Sessions judge thought that the sanctions were not proper was that it had not been established that they had been given by a person competent to do so under clause (c) of section 6 of the Prevention of Corruption Act, 1947. The learned judge further remarked that the sanctions had not been duly proved. Dealing first with the last ground of the learned Sessions Judge, I find that Muhammad Nawaz, D. S. P. Special Police Establishment, who appeared as P. W. 1 in the case which is the subject of Criminal Appeal No. 89 of 1953 and as P. W. 4. in the other case, said in clear terms that he obtained the sanctions (Exh. P. K. in the former case and Exh. P. M. in the latter) from the Divisional Superintendent, North Western Railway, Rawalpindi. This, in my view, was sufficient proof of the sanctions having been granted by the Divisional Superintendent, North Western Railway Rawalpindi, and in the absence of any rebuttal by the defence should have been accepted as such. I will now deal with the point regarding the competency of the Divisional Superintendent, North Western Railway, Rawalpindi, to grant the sanctions. Clause (c) of section 6 of Act II of 1947 required that the sanction in the case of public servants of the status of the accused was to be given by an authority competent to remove them from service. In this connection the learned counsel for the appellant relied on Appendix G of the Advance Chapter, Volume V of Personnel Manual and Rules relating to discipline and rights of appeal of non‑gazetted railway servants wherein it is said that a Divisional Superintendent could remove a station master from service, If the rules relied upon on behalf of the Government are valid, the Divisional Superintendent was competent to grant the sanctions On the record it is not clear if a Divisional Superintendent on the North Western Railway can appoint a station master, and unless a Divisional Super intendent or a lower authority had made the appointment, the officer who granted the sanctions would not, in spite of the rules authorising him to do that, be competent to pass an order of removal of the accused, as section 240 of the Government of India Act, 1935, enacts, inter alia, that no authority lower than the one that had made the appointment of a public servant is competent to dismiss him from service notwithstanding that every servant of the Crown holds office during His Majesty's pleasure. The accused did not raise any objection in the trial Court with regard to the competency of the Divisional Superintendent to grant sanctions nor did he do so in the memoranda of appeals presented in the Court of the Sessions judge and it may, therefore, be presumed that the sanctions did not suffer from the defect that they were granted by an officer not competent to do so. The learned Sessions judge has remarked that there was no proof on the record that the office who granted the sanctions was competent to remove the accused front service. In the absence of any objection in the Court of the Magistrate and in the grounds of appeal in his Court the learned Sessions judge should have given the prosecution an opportunity to show that the officer granting the sanctions was competent to grant them. The learned counsel for the accused could urge nothing against the validity of the rules relied upon on behalf of the Government and I would, there fore, hold that the sanctions were granted by an officer competent to grant them. I will now consider if the sanctions granted in the two cases suffered from any defect and, therefore, the trial held by the Magistrate were invalid. The learned Sessions judge has held that because the sanctions were granted for the trial of the accused under section 161 of the Pakistan Penal Code, the accused could be tried under that section and not under section 5 of Act II of 1947 and as the accused was charged with an offence under section 5 of the Prevention of Corruption Act 1947 (II of 1947), the whole trial was vitiated. When asked what his position with regard to this matter was, the learned counsel for the Government urged that if the sanctions were defective the order of acquit tal passed by the learned Sessions judge must be set aside on the ground that it was without jurisdiction but if the sanctions were valid the appeals against orders of acquittal should be decided on merits, and left it at that. The position that existed with regard to the matter under consideration at the relevant time was rather queer. When section 5 of Act II of 1947 was originally enacted, its first sub section read as follows :‑ "5 (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duties‑ (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a considera tion which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any pubic servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so con cerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage." The section was amended by the Constituent Assembly in 1950 by means of Act IX of 1950 which received the assent of the Governor‑General on the 19th of January 1950 sand the words "in the discharge of his duties" were omitted from all the three subsections of section 5 of Act II of 1947, as were the word "habitually" from clauses (a) and (b) of subsection (1) of that section. The result of these amendments, as is apparent from the comparison of the languages of those provisions of law, was that clause (b) of subsection (1) of section 5 of the Prevention of Corruption Act (II of 1947) and section 165 of the Pakistan Penal Code became applicable to identical facts, while clause (a) of subsection (1) of section 5 of the Prevention of Corruption Act (II of 1947) and section 161 of the Pakistan Penal Code became almost similar Section 161 of the Pakistan Penal Code applies to two kinds of persons, firstly, to those who are public servants and, secondly, to those who are expecting to become public servants and clause (a) of subsection (1) of section 5 applies if the person taking illegal gratification is a public servant and not merely a person who is expecting to be one. This means that if a public servant is guilty of an offence mentioned in section 161 of the Pakistan Penal Code, he is at the same time guilty of an offence mentioned in clause (a) of subsec tion (1) of section 5 of the Prevention of Corruption Act, 1947. The ground' that part of section 161 of the Pakistan Penal Code which would apply to the case of the accused and clause (a) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, cover being the same, the question to consider is if the fact that the sanctions stated that the accused was to be tried under section 161 of the Pakistan Penal Code prevented his being convicted of an offence under section 5 of the Prevention of Corruption Act. After anxiously considering this question, I have arrived at the conclusion that the non‑mention of that section in the sanctions could not prevent the accused being convicted under section 5 of the Prevention of Corruption Act, 1947. My reason for this view is that the facts constituted one offence as much as they did the other and neither of these, offences has an ingredient which the other does not have. I am further of the view that if, when granting the sanctions, 'the Divisional Superintendent, North Western Railway, Rawalpindi, had merely mentioned the facts without specifying the provision of law which was applicable to those facts, the sanctions would not have suffered from any fatal defect, and I can think of no valid reason why mentioning section 161 of the Pakistan Penal Code in the sanctions prevented the conviction of the accused under section 5 of the Prevention of Corruption Act 1947 when the ingredients of the two offences were identical. The learned counsel for the accused contended that because section 5 of the Prevention of Corruption Act 1947 was not mentioned in the sanctions and no Court could take cognizance of an offence under that section without sanction from the appropriate authority, the proceedings of the trial Magistrate were void ab initio and in this connection made a reference to Barindra Kumar Ghose v. Emperor (11 Cr. L J 453.) In the cited case, which was decided by the Calcutta High Court, the facts were that the Bengal Government had, under section 196 of the Code of Criminal Procedure, authorised a police officer to prefer a complaint against the accused for offence under sections 121‑A, 122, 123 and 124 of the Penal Code or under any other section of the said Code which may be found to be applicable to the case and the police officer had put in a complaint under sections 143, 145, 150, 157, 121, 121‑A, 122, 123 and 124 of the Penal Code. In the course of the judgment, one of the learned Judges made the following remarks :‑ "It further appears to me to be the true implication of section 196 that the judgment of the Local Government should be specifically directed to the particular sections of Chapter VI in respect of which proceedings are to be taken, and that the order or authority should be preceded by, and by the result of, a deliberate determination that proceedings should be taken in respect of a particular section or particular sections of the Chapter and no other." I am in respectful agreement with these observations but they have no application to the facts of the present case. In the case considered by the Calcutta High Court a new offence, namely, one falling under section 121 of the Penal Code, which could not have been taken cognizance of without sanction had been added though the ingredients of an offence under section 121 are entirely different from those of sections 121A, 122, 123 and 124 of the Penal Code which had been mentioned in the authority to the police officer to prefer a complaint. This, however, cannot be said of the present cases, in which, as I have already shown, the ingredients of the two offences are entirely identical. There is, however, one point of distinction between an offence under section 161 of the Pakistan Penal Code and the one falling under clause (a) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, and that is that while the punishment for the offence under section 161 of the Pakistan Penal Code is imprisonment of either description for a term which may extend to three years or fine or both the punishment prescribed for the offence mentioned in clause (a) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, is imprisonment for a term which may extend to seven years or fine or both. Subsection (2) of section 5 of the Prevention of Corruption Act, which prescribes the punishment for the offence mentioned in subsection (1) of that section does not say of what description the imprisonment that can be imposed was to be, but it may be presumed that the imprisonment may be of either description. To this kind of cases the principles contained in section 71 of the Pakistan Pedal Code which enacts, inter alia that if an offence falls within two or inure separate definitions of any law in force for the time being, the offender shall not be punished with a more severe punishment than the Court which tries him could award him for any of such offences will be applicable. It would, therefore, appear that as long as section 161 of the Pakistan Penal Code in so far as it deals with public servant is not formally repealed the punishment that can be awarded for acts which constitute an offence mentioned in clause (a) of subsection (1) of section 5 cannot exceed imprisonment of either description for a term which may extend to three years or fine or both. The mere fact, therefore, that the offence of which the accused was convicted was punishable with a higher term of imprisonment would not make any difference as the imprisonment imposed on the accused in both the cases was less than the imprisonment which could have been imposed if the convictions had been under section 161 of the Pakistan Penal Code. But even if the accused could not have been convicted under section 5 of the Prevention of Corruption Act, 1947, there was nothing to prevent his conviction under section 161 of the Pakistan Penal Code, provided firstly that his guilt was established by the evidence on the record and secondly that those parts of section 161 of the Pakistan Penal Code which apply to public servants as distinguished from those which apply to persons who are merely expecting to become public servants‑were not impliedly repealed when the originally enacted section 5 of the Prevention of Corruption Act, 1947, was amended by Act IX of 1950. I am of the view that section 26 of the General Clauses Act (X of 1897) militates against the rule of implied repeal and a Division Bench of this Court, of which I was a member, expressed that view in the case reported as Crown v. Babu Khan (P L R 1953 Lah. 163.) Section 26 of the General Clauses Act, 1897, is very similar to section 33 of the Interpretation Act, 1889 (52 and 53 Victoria Chapter 63) and one finds that at page 189 of Maxwell's Book on Interpretation of Statutes, 10th Edition, it has been doubted if the judicial decisions which had proceeded on the assumption of implied repeal had not become obsolete by the enactment of section 33 of the Interpretation Act, 1889. But even if, in spite of section 26 of the General Clauses Act it were to be assumed that there could be implied repeal of a Statute, there are such strong grounds against assuming the implied repeal of a part of section 161 of the Pakistan Penal Code by the amended clause (a) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, that such repeal cannot be presumed. I have already indicated that clause (b) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947, covers the precise ground which is covered by section 165 of the Pakistan Penal Code and, therefore, if the rule of implied repeal applied, the whole of section 165 must be deemed to lave been repealed oil the enactment of Act IX of 1950. One finds, however, that when the legislative body which passed Act IX of 1950 passed the Criminal Law Amendment Act 1953 (XXXVII of 1953? it increased the maximum sentence of imprisonment prescribed for an offence under section 165 of the Pakistan Penal Code from simple imprisonment for two years to imprisonment of either description for three years, which act of it established that the Legislature did not intend to repeal section 165 of the Pakistan Penal Code by enacting Act IX of 1950. Now if by passing Act IX of 1950 the Legislature did not intend to repeal section 165 of the Pakistan Penal Code it is clear that they could not have intended the repeal of those parts of section 161 which fall within the ambit of the amended clause (a) of section 5 of Act II of 1947. By that very Act a part of section 161 of the Pakistan Penal Code was also amended but as that amendment may not be conclusive proof of the intention of the Legislature to retain on the statute‑book those parts of section 161 of the Pakistan Penal Code which apply to public servants, I will not rely on that amendment as a reason against presuming the implied repeal of parts of section

161. Then there is the circumstance that section 6 of Act II of 1947, (recently repealed by Act XXXVII of 1953) which enjoined a previous sanction of certain authorities before a Court could take cognizance of offences punishable under sections 161, 165 of the Penal Code and section 5 (2) of the Prevention of Corrup tion Act alleged to have been committed by a public servant was left intact by the Legislature after the amendment of section 5 of Act II of 1947, which would not have been done if the Legislature had intended implied repeal of section 165 or parts of section 161 of the Pakistan Penal Code. The learned counsel for the accused contended that sec tion 161 of the Pakistan Penal Code must be held to have been impliedly repealed by the amendment of the original section 5 of Act II of 1947 and in this connection cited The State v. Gurcharan Singh (A I R 1952 Pb. 89.) wherein it was held that clause (c) of subsection (1) of section 5 of Act II of 1947 must be held to have impliedly repealed section 409 of the Penal Code in so far as it related to public servants because the clause dealt with the same matter as section

409. It was, however, held by a Division Bench of this Court in The Crown v. Babu Khan. (supra) that clause (c) of subsection (1) of sec tion 5 of Act II of 1947 did not repeal section 409 of the Penal Code and the same opinion was expressed in Abdul Latif v. The Crown (P L D 1952 Lah. 647.). I have already said that, because of section 26 of the General Clauses Act, the rule of implied repeal is not to be acted upon and may add that if the languages of the two provisions of law dealt with in A I R 1952 Pb. 89 are compared, it would be found that they do not cover precisely the same ground, because there is no mention of fraudulent misappropriation or conversion in section 405 which one finds in the provisions of Act II of 1947. Not is the disposal of entrusted property which has been dealt with by section 405 dealt with by clause (c) of sub section (1) of section 5 of Act II of 1947. The object of enacting Act II of 1947 was stated by the Legislature to be the making of more effective provision for prevention of bribery and corruption and if one were to hold that section 409 of the Penal Code had been repealed by clause (c) of subsection (1) of section 5 of Act II of 194;, it will have to be held that the Legislature acted in, direct opposition to their avowed object because one finds that the maximum punishment pre scribed for the offence covered by clause (c) of subsection (1) of section 5 of Act II of 1947 is less than that prescribed for an offence under section 409 of the Pakistan Penal Code. I would hold, therefore, that the sanctions relied upon by the prosecution were not defective and the accused could have been convicted if ills guilt was established by the evidence on the record. I will now address myself to the merits of the two cases. The prosecution led evidence that, on learning that the accused was asking for a bribe from Liaquat Husain and Amir Khan, the Special Police Establishment organised a raid under the supervision of Ch. Muhammad Sharif, Magistrate 1ts Class, Mianwali. Liaquat Husain and Amir Khan were sent to pay Rs. 110 and Rs. 24 to the accused respectively as bribe and on an appointed signal the Magistrate, accom pained by Malik Muhammad Nawaz, D. S. P., and Manzoor Husain, A. S. I., went to the room where the accused was working. The Magistrate demanded from the accused the money which had been paid to him by Liaquat Husain and Amir Khan at which the accused took some notes out of the outer pocket of his coat and started dropping them to the ground. The precise amount which had been handed over to Liaquat Husain and Amir Khan to be given to the accused was recovered and the notes thus recovered were found to bear the, ‑numbers which had been noted down by the Magistrate before giving them to Liaquat Hussain and Amir Khan. This part of the prosecution case was supported by Malik Muhammad Nawaz, Ahmad Khan, Liaquat Hussain, Manzoor Hussain A. S. I., and Ch. Muhammad Sharif, Magistrate Ist Class, Mianwali. In his statement the accused took the position that he had found the notes lying under his register and was holding them in his hand with a view to handing them over to the persons who had put them there when the Magistrate came in the room and recovered them. Some evidence was produced in defence, but the learned counsel for the accused did not rely on it and after having considered it I have arrived at the conclusion that the defence evidence was rightly rejected by the trial Magistrate. It being common ground between the prosecution and the defence that Rs. 134 were recovered from the possession of the accused at the time and the place mentioned by the prosecution, the only question for decision is if the money carne in the room where the accused was in the manner mentioned by the prosecution or that mentioned by the defence. Ch. Muhammad Sharif. Malik Muhammad Nawaz, Manzoor Husain, Amir Khan and Liaquat Hussain stated clearly that the money had been given as a bribe to the accused. There is no reason not to accept this evidence and the learned counsel for the accused had to admit that there was no ground for not accepting the statement of Ch. Muhammad Sharif, Magistrate Its class, Mianwali, who is an entirely independent witness. In my opinion, the guilt of the accused was established beyond all reasonable doubt and I would, therefore, setting aside the orders of acquittal convict the accused in both the cases under section 161 of the Pakistan Penal Code or alternately under section 5 (2) of the Prevention of Corruption Act. This leaves the question of the sentence to be dealt with. The accused was let out on bail by the learned Sessions Judge after he had served a few days of the imprisonment imposed on him by the learned trial Magistrate and I do not feel inclined to send him back to jail especially as he is an old man and is stated by his learned counsel to have already retired from service. I would, therefore, sentence the accused to the term of imprisonment already undergone by him and for the reasons that I have given for not recommitting the accused to prison, I think that a sentence of Rs. 500 in Criminal Appeal No. 89 of 1953 and one of Rs. 150 in Criminal Appeal No. 90 of 1953, in addition to the sentence of imprisonment already undergone, would meet the ends of justice and I order accordingly. In default of payment of fine, the accused shall undergo rigorous imprisonment for four months and two months in the respective cases. M. A. SOOFI, J.‑I agree. A. H. Accused convicted.