P L D 1965 (W (PLP)

Pakistan Criminal Law (Amendment) Act (XL of 1958), Ss. 6(4), 5(1) & 5 (7)‑--Words "any offence" in S. 6 (4)--‑Mean `any offence specified in the schedule'‑--Special Judge not competent, on facts admitted in course of trial, to convict accused of offence not specified in Schedule‑Provisions of S. 5 (7) attracted only when offence not specified in Schedule can, under provisions of Ss. 234 to 238, Cr. P. C., be joined together with offences specified in Schedule Offence under S. 474, P. P. C., in circumstances of case, not found capable of being joined with offences specified in Schedule to Pakistan Criminal Law (Amendment) Act, 1958

Conviction solely under S. 474, P. P. C., held, illegal--‑Penal Code (XLV of 1860), Ss. 161 & 474‑--Prevention of Corruption Act (II of 1947), S. 5 (2). The words "any offence" occurring in section 6(4) of the Pakistan Criminal Law (Amendment) Act, 1958 mean any offence specified in the Schedule to the Act and the Special Judge has no jurisdiction to convict the accused of any offence under the Penal Code, 1860, irrespective of whether the offence be so specified or not. A person was charged under section 161, Penal Code, 1860, read with section 5(2) of the Prevention of Corruption Act, 1947 and was tried by a Special Judge under the Pakistan Criminal Law (Amendment) Act, 1958. The Special Judge acquitted the accused of the charge under section 161, Penal Code as well as that under section 5 (2) of the Prevention of Corruption Act, 1947. The Special Judge, however, on facts admitted by the accused during the course of trial, convicted the accused under section 474, Penal Code. The High Court, on appeal by the accused, held, that the conviction of the accused, under section 474, Penal Code by the Special Judge was bad in law. It was observed that the word "offence" mentioned in subsection (4) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958, means an offence as specified in the Schedule. In subsection (7) of section 5 of the Act the powers of the Special Judge in regard to the trial of offences other than those specified in the Schedule have been enlarged to a limited degree to the extent that the Special Judge may charge an accused person for offences not triable under the Act under the provisions of the Code of Criminal Procedure relating to joinder of charges. This means that if apart from the offences specified in the Schedule, another offence can be joined together with any of those offences under the provisions of sections 234 to 238 of the Criminal Procedure Code, the Special Judge would be competent to do so and try the accused for those offences also. But the scope of this provision also cannot be extended to all types of offences whether or not they could be joined together with the scheduled offences under the law. Muhammad Akbar v. The State P L D 1961 Lah. 28 considered. Abdul Barkat Sharnamot and others v. The State P L D 1.959 Dacca 617 and Jabed Ali v. The State P L D 1964 Dacca 208 ref. Shamim Ahmad Mirza for A. G. (present on 5‑11‑1964 and 12‑11‑1964 only) for the State. Mukhtar Ahmad, an Assistant in the Office of the Director, Public Instructions, Lahore, during the relevant time, was tried under section 161, P. P: C., read with section 5 (2) of the Prevention of Corruption Act (I1 of 1947), in the Court of the Special Judge, Anti‑Corruption Department, Lahore, 1t passed through the hands of three Special Judges, when, finally, it came to the Court of Mr. (now Mr. Justice) Muhammad Jamil Asghar, then Special Judge, Lahore, on the 22nd of June 1961. The statement of the accused had been recorded earlier by the previous Special Judge, Mr. Riaz A. Qureshi, who had also recorded the statements of some seven witnesses. Mr. Muhammad Jamil Asghar recorded the remaining evidence of the prosecution and also of the defence witnesses and in the end by his order dated the 7th of December 1961, convicted the accused under section 474, P. P. C. and sentenced him to four years' rigorous imprisonment and a fine of Rs. 500.00 or in default to 'undergo further rigorous imprisonment for one year. Mukhtar Ahmad has come in appeal to this Court.

2. The case against the appellant, as made out in t e accusations against him with which he was confronted for his statement under section 242 of the Code of Criminal Procedurc and for which the sanction of the relevant authority had also been obtained, was that he, while officiating as an Assistant in the Office of the Director, Public Instructions, Lahore, by abusing his position as a public servant, in or about the month of September, 1957, demanded a sum of Rs. 200.00 each from P. Ws. Sabir Ali and Muhammad Farooq as a motive or reward for issuing to them forged Matriculation Examination pass certificates, to which they were not entitled because they had failed in that examination held in the years 1957 and 1955, respectively, and that he on or about the 9th of September 1957, had actually obtained a sum of Rs. 200.00 from P. W. Sabir Ali and have the forged certificate for Muhammad Farooq but withheld the forged certificate of P. W. Sabir Ali, not having received the balance of Rs. 200.00 from him thereby, committing an offence punishable under section 161, P. P. C., read with section 5 (2) of the Prevention of Corruption Act (Il of 1947).

3. P. Ws. Sabir Ali and Muhammad Farooq, according to their version, had previously paid some money to the appellant for getting from him‑the "bogus pass certificates" but be was putting them off in order to exact more money. Disgusted with his dodges, they contacted Ch. Muhammad Akbar, Sub‑Inspector of the Anti‑Corruption Department, and reported to him the appellant's misconduct. The usual trap was organised, headed by P. W. Mr. Ghulam Ahmad, Magistrate, to catch the appellant red‑handed in the actual process of receiving illicit money. It was stated by the trap witnesses, including the Magistrate, that on the day when the raid was organised, viz., the 9th of September 1957, the scene of which was the office premises of the appellant himself, the appellant had 'made a demand from the P. Ws. for money as a consideration for the delivery of the certificates, but Sabir Ali told him that the money would be paid after the certificates were handed over. Thereafter the appellant went to his room, brought the certificate Exh. P. A./1 of Muhammad Farooq, along with the result sheet Exh. P. N., and handed it over to P. W. Sabir Ah, which the latter gave to Muhammad Farooq. The tainted money of Rs. 200.00 was passed to the appellant, who took it. In respect of the certificate of Sabir Ali, he insisted that he would deliver the certificate after he was paid the balance of Rs. 200.00, as agreed. At this stage, the Magistrate, with his companions, disclosing their identity, caught hold of the accused, who threw the money on the ground.

4. The appellant admitted at the trial that he had in his possession the certificates Exhs. P. A./Land P. B./1, which were obviously not genuine certificates, and the result sheets Exhs. P. N. and P, L. at the time of the occurrence and that he had handed over the certificate Exh. P. A./1 and the result sheet Exh. P. N. to Muhammad Farooq. He also admitted having received Rs. 200.00 from Sabir Ali and also that the Magistrate had recovered from his possession the other certificate Exh. P. B./1 and the result sheet Exh. P. L., but he explained the position by stating that one Salim Mahmood, the Principal of the Dawn College, Lahore, had sent him a closed envelope containing the two certificates, Exhs. P. A./I and P. B./1 along with the letter Exh. D.A., stating that the certificates of Sabir Ali and Muhammad Farooq, enclosed in the envelope, were to be delivered to them on payment by them of Rs. 200.00 each which they owed to Salim Mahmood.

5. The learned Special Judge found himself unable to convict the accused under section 161, P. P. C., as he considered that he could not for that count accept the uncorroborated testimony of P. W. Sabir Ali and Muhammad Farooq regarding the actual payment of the' illegal gratification by them to the appellant as they were accomplices in the eye of law and their statements needed corroboration which was lacking in the case. The appellant was thus acquitted of the charge under section 161, P. P. C. nor was he convicted under section 5 (2) "of the Prevention of Corruption Act. The learned Special Judge, however, convicted the appellant under section 474, P. P. C., because according to the learned trial Judge; the appellant on his own admission was found in possession of certificates which were forged and not genuine, and from the circumstances in which he came to possess them the learned Judge considered that the accused‑appellant knew that the certificates were forged and not genuine, and that he had kept them in his possession with the intention that they shall be used for fraudulent and dishonest purposes, thus falling within the mischief of section 474, P. P. C. While acquitting the accused under section 1(1, P. P. C., which covered the main accusation against him, the learned Special Judge examined the question whether the accused could be convicted for any other offence and his conclusion on that point may be reproduced in his own words:‑ "Now the last point, which requires determination is whether any other offence has been made out against the accused. It is no doubt true that in the accusation only the offences under section 161, P. P. C. and section 5 (2) of the Prevention of Corruption Act have been mentioned. Section 6 (4) of the Pakistan Criminal Law (Amendment) Act (XL of 1958), lays down:‑ `Notwithstanding anything contained in this Act, the Special Judge may convict the accused of any offence, which from the facts admitted or proved he appears to have committed. The wording of this section is absolutely clear. It gives unfettered power to a Special Judge to convict a person if any other offence is made out against the accused, even though that offence was not put in the accusation. The same view was expressed in P L D 1961 Lah. 28."

6. Mr. S. M. Zafar, the learned counsel for the appellant, has challenged the validity of the conviction of the appellant under section 474, P. P. C. on the ground that the learned Special Judge, under the Pakistan Criminal Law (Amendment) Act of 1958 (hereinafter referred to as the 'Act), was only authorised to try offences under that Act which are specified in the Schedule annexed to that Act, and that section 474, P. P. C. is not one of those offences. Reference is made to section 5 of the Act which states: "

5. Offences to be tried by Special Judges.‑(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge." It was pointed out by the learned counsel that the Preamble to the Act makes it clear that this enactment was introduced to provide for the more speedy trials and the more effective punishments of certain offences specified in the Schedule and not of all offences. Section 4 of the Act deals with the jurisdiction of the Special Judges and cognizance of cases by them and lays down that a Special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification is the official Gazette and may take cognizance of any offence committed or deemed to have been committed within such limits and triable under this Act. The words "triable under this Act" are specifically emphasised by the learned counsel. The same words appear in subsection (4) of the same section, It was argued, therefore, that section 474, P. P. C., for which the appellant has been convicted, not being one of the scheduled offences triable under the Act, the conviction is vitiated for lack of jurisdiction. The learned counsel has drawn my attention to two authorities from the Dacca High Court, the first Abdul Barkat; Sharnamot and others v. The State (P L D 1959 Dacca 617), which is a Division Bench case, in which Khan, J., sitting with Akbar, J., held as follows:‑ "The provisions of section 6 (4) of the Pakistan Criminal Law (Amendment) Act, 1958, do not say that the Special Judge has jurisdiction to convict the accused of any offence of the Pakistan Penal Code other than the offences specified in the Schedule to the Act which from the facts admitted or proved, he appears to have committed. The provisions of the said subsection do mean that the Special Judge may convict the accused of any offence specified in the Schedule to the Act which from the facts admitted or proved he appears to have committed, although he was charged under some other offences specified in the said Schedule." The same position was upheld in the second case from Dacca, Jabed Ali v. The State (P L D 1964 Dacca 208), a judgment delivered by Baquer, J. It was held that the words "any offence" in section 6 (4) of the Act mean any offence specified in the Schedule to the Act, and that the Special Judge has no jurisdiction to convict the accused of any offence under the Penal Code, irrespective of whether the offence be so specified or not.

7. The learned counsel appearing for the State has defended the conviction of the appellant on the same argument which was employed by the learned Special Judge, based on the construction of section 6 (4) of the Act, supported by the judgment of Changez, J., in Muhammad Akbar v. The State (P L D 1961 Lah. 28), referred to in the judgment of the Special Judge.

8. I consider that the question which is posed for decision in this case was not present before the learned Judge in the case of Muhammad Akbar v. The State mentioned above. There, the point was whether the accused could be convicted under section 467, P. P. C. for having forged his signatures on a cheque for which the prosecution had obtained the sanction of the relevant authority for the prosecution of the accused, although on the facts of the case it was found that the accused had not forged the signatures on the cheque but had forged the writings on the face and the back of the cheque. During the examination under section 342 of the Code of Criminal Procedure the trial Judge had questioned the accused regarding the forged signatures on the cheque. Dealing with the question whether the conviction of the accused under section 467 was valid in spite of the defect in the contents of the sanction, his Lordship observed as follows:‑ "Section 6 (4) of the Criminal Law (Amendment) Act does away with the requirement of the sanction altogether and the Court appears to have been given very wide powers to convict the accused of any offence which, from the facts admitted or proved, he appears to have committed. Subsection (5) of section 6 of the Act provides that previous sanction of the appropriate Government shall be required for the prosecution of a public, servant for an offence under this Act, but subsection (4) empowers the Special Judge to convict the accused of any offence which from the facts admitted or proved he appears to have committed, `notwithstanding anything contained in this Act'." I would say, with all respect, that if it was intended by this observation to generalise that for all offences of whatever nature as admitted or proved against an accused person in his trial under the Act his conviction could be recorded, I find myself unable to subscribe to that view. For instance, if in the present case it had also been admitted or proved that the appellant had committed dacoity or murder, would the Special Judge have been within the ambit of his authority in convicting the appellant for those offences? . To my mind, the answer is "no". It seems to me that the purpose of this special Act is to punish the offences involving the official conduct of public servants and a special procedure for provided in the Act, making the trial of such offences on the pattern not of warrant cases but of summons cases. Certain concessions which the accused in such cases can ordinarily get in the case of his normal trial under the ordinary law by a Magistrate of the First Class, like the right of first appeal to the Sessions Court or the right of recall of witnesses for further cross‑examination after a formal charge‑sheet etc., have been taken away. Being a penal statute, a restrictive interpretation has to be put on its provisions, with no attempt to enlarge their scope. I feel that considering the entire purpose of the Act in the context of the relevant provisions, the Legislature had intended, although it has omitted expressly to state so in the provision itself, that the word "offence" mentioned in subsection (4) of section 6 means an offence as specified in the Schedule. In subsection (7) of section 5 of the Act the powers of the Special regard to the trial of offences other than those specified in the Schedule have been enlarged to a limited degree to the extent that the Special Judge may charge an accused person for offences not triable under the Act under the provisions of the code of Criminal procedure relating to joinder of charges. This means that if apart from the offences specified in the Schedule, another offence can be joined together with any of those offences under the provision of sections 234 to 238 of the Criminal Procedure Code, the Special Judge would be competent to do so and try the accused for those offences also. But the scope of this provision also cannot be extended to all types of offences whether or not they could be joined together with the Scheduled offences under the Law. On the facts of this case, it is not possible to hold that the offence under section 474, P.P.C. for which the appellant has been convicted could be joined with the offence under section 161, P.P.C. read with section 5 (2) of the Prevention of Corruption Act (II of 1947) under any of the afore-mentioned sections of the Criminal Procedure Code, permitting joinder of charges for trial. In fact it was not so joined in the trial of the accused in the present case; but nonetheless he was convicted for it. In this view of the matter, I am constrained to hold that the appellant's conviction under section 474, P. P. C., as recorded by the Special Judge, is bad in law and has to be set aside, and I order accordingly. Tile prosecution agency may, if so advised, launch the trial of the' accused‑appellant for the alleged offence under section 474, P. P. C. before a Magistrate of competent jurisdiction. The acquittal of the appellant under section 161, P. P. C. and section 5 (2) of Act II of 1947 not having been challenged in appeal cannot now be disturbed. As this case has been pending since a long time, the trial of the new case, if launched against the appellant, should be expedited, and he shall be allowed to remain on bail pending the trial to the satisfaction of the trial Magistrate. K. B. A. Appeal accepted.