P L D 1955 Baluchistan 6 (PLP)

R. K. M. SAKER, J. C.-This is an appeal under section 9 of the Pakistan Criminal Law Amendment Act, 1948 against the order and judgment of the Special Judge in Baluchistan (dated 3rd May, 1954) who convicted the convict-appellant Syed Jaffar Shah, formerly an Assistant Sub-Inspector of the Quaetta Police, of an offence under section 161, P. P. C. and sentenced him to four months' rigorous imprisonment. The brief facts of the case are that while Syed Jaffar Shah was appointed as an Assistant Sub-Inspector of Police, Quaetta, he demanded bribe from one Abdul Aziz, the Manager of the Pakistan Industries Ltd., Quaetta, who had been driving his car and had come in collision with a bicycle. Abdul Aziz was challaned under the Motor Vehicles Act before the City Magistrate, Quaetta and he was duly convicted and sentenced to a fine. After the completion of this case, the convict-appellant, who was entrusted with the Investi gation of the case, approached Abdul Aziz and told him that he was now being challaned under certain sections of the P. P. C. and directed him to furnish bail. Abdul Aziz was then threatened with arrest and it was suggested to him that if he paid Syed Jaffar Shah the sum of Rs. 150, he would save himself a lot of trouble. Later, the convict-appellant again approached Abdul Aziz and said that if he paid him Rs. 150, he would see that the proceedings against him were dropped upon which Abdul Aziz reported the matter to the Additional Superintendent of Police, Quaetta. Eventually a trap was laid at the office of Abdul Aziz where Jaffar Shah was asked to be present, and a Magistrate and a Sub-Inspector of Police sat in the adjoining room and have given, evidence to the effect that Abdul Aziz handed over currency notes of the value of Rs. 150 to Jaffar Shah. These notes were subse quently recovered from him. Learned counsel for the convict-appellant argues that the conviction is bad for three main reasons. Firstly, that the convict-appellant did not accept the money in the exercise of his official functions and therefore no case under section 161, P. P. C. had been made out. Secondly, it is contended that there was no valid sanction to investigate this case as is required by section 5-A of the Prevention of Corruption Act, 1947 ; and finally, that the Special judge had no jurisdiction to try the case as he had not been appointed as such by virtue of section 3 of the Pakistan Criminal Law Amendment Act, 1948 as amended by the Criminal Law Amendment Act, 1953. I propose to take the grounds of appeal in the order which has been stated above. With regard to the facts of the case, learned counsel for the convict-appellant argues that it was not within the official competence of the convict-appellant to influence witnesses to spoil the case, since once the case had been challaned in a competent Court of law, the -matter was no longer in the hands of any Police Official. I am unable to accept this argument, for it has been held that it is sufficient to constitute a case under section 161, P. P. C. if a person thinks that a particular public servant has an opportunity to show him favour in the exercise of his official functions, although the official might in reality have no such opportunity. A member of the public from whom a bribe is demanded cannot always be excepted to know what an official is capable of doing. The fact that an official approaches a member of the public and demands a bribe for doing a favour, the plea that he was incapable of doing it is no defence. A Police Official, who is B investigating a case, is acting in his official capacity as such and undoubtedly he would be in a position to influence witnesses if he wished to do so for some ulterior motive. With regard to the contention that no valid sanction for a Police Officer below the rank of a Deputy Superintendent of Police to investigate this case was obtained, the record indicates that the Sub-Inspector of the Special Police Establishment addressed a letter to the Assistant Political Agent and Magistrate First Class, Quaetta requesting for permission to investigate. In accordance with the require ments of section 5-A of the Prevention of Corruption Act, 1947 sanction of a First Class Magistrate is necessary. Learned counsel for the convict-appellant argues that on the analogy of the order passed by this Court in Crown v. Ferozud Din (P L D 1954 Bal. 1) failure to obtain the necessary sanction would vitiate the proceedings. While I do not propose to depart from the views already expressed in any former order, the case now before me is distinguishable. The Sub-Inspector himself addressed the Magistrate asking for permission to investigate and permission was granted. I am therefore not disposed to agree with the arguments of the learned counsel for the convict-appellant that no permission was obtained. The third ground of appeal is that which relates to the allegation that the learned Special judge had not been properly appointed and therefore had no jurisdiction to try the case. The position is that the Criminal Law Amendment Act was originally enacted in 1948 and it came into force, in so far as Baluchistan is concerned in the same year by a Notification published in the Pakistan Gazette. Subsequently the 1948 Act was amended by the Criminal Law Amendment Act, 1953 which came into force in Baluchistan with effect from 17th November, 1953. In so far as the appointment of Special judges is concerned, the 1953 Amendment Act lays down the qualifications which are necessary before any person can be appointed as a Special judge by the appropriate Government. The Amendment Act of 1953 indicates that Special judges must not have less than three years' service as a Sessions or Additional or Assistant Sessions judge or a District Magistrate. In the case of the Special Judge in Baluchistan, he is duly qualified for appointment. Learned counsel for the convict appellant argues, however, that since the 1953 Amendment Act no Notification has been issued re-appointing the present Sessions Judge in Baluchistan as a Special Judge, and it is contended that in making the appointment the Central Government did not consider whether he was qualified to hold this appointment. By a Notification of May 1951, Qazi Ghazanfar Hussain, Sessions Judge in Baluchistan was appointed as Special Judge by the Central Government and I can see no reason to believe that this Notification is ultra vires. The fact that there has been an amendment to the Act does not in any way nulify the authority of this Notification, provided the Judicial Officer concerned is qualified to hold his appointment under the new amendment. It has further been argued that the appointment of the Special Judge by the Central Government was not valid. There is, however, little force in this argument, as "appropriate Government" so far as Baluchistan is concerned means the Central Government within the meaning of section 2 (a) of the Pakistan Criminal Law Amendment Act 1948 as subse quently amended by the Act of 1953 read with section 3 (43-a) of the General Clauses Act, 1897. It follows therefore that the power of appointment of Special judges in so far as Chief Commissioners' Provinces are concerned vests in the Central Government. In the light of the above observations, it will be clear that I do not consider there are any good grounds for acceptance of this appeal on those points argued before me. On the other hand, in considering the appeal the case is at large before me, both as to the law and facts. I therefore propose to examine the record to ensure that justice has been done and that nothing irregular or illegal has occurred which would prompt me to accept the appeal. In so far as the facts of the case are concerned, from the evidence recorded, I have no reason to believe that injustice has been done. The convict-appellant, who was a Police Officer, sought to demand a bribe from a member of the public for doing an act in his official capacity, which would be to the advantage of Abdul Aziz-the complainant in this case. A trap was laid and the bribe money was given by Abdul Aziz to the convict-appellant which was immediately recovered from his possession. The only defence put up is that this money was debt owing to the convict-appellant by the driver of Abdul Aziz. In my opinion this is no defence and the evidence fully proves that the convict-appellant is guilty of accepting illegal gratification. In all these circumstances I see no reason to interfere and the appeal is dismissed. In considering sentence, there are certainly no grounds for me to reduce the sentence passed. The offence which the convict-appellant committed was of a serious nature and I am more prompted to believe that he has been leniently sentenced. K. M. A. Appeal dismissed.