P L D 1985 Supreme Court 225 (PLP)

ASLAM RIAZ HUSSAIN, J.-Muhammad Rafique, petitioner seeks leave to appeal against the judgment dated 23-12-1984 of a learned Single Judge of the Lahore High Court, dismissing his Criminal Appeal (No. 1050 of 1980).

2. Facts leading to the petition are, briefly, that Muhammad Rafique petitioner who was not a Govt. employee was working as an assistant to Abdul Hameed Patwari in order to learn the work. He demanded Rs. 50 as illegal gratification from Sharif P. W.

1. The latter, however, reported the matter to the police. A raiding party was constituted under Ch Faqir Muhammad, Magistrate, P. W.

3. Sharif P. W. 1 (complainant) handed over currency notes worth Rs. 50 to the petitioner as promised. Immediately thereafter the tainted currency notes were recovered by the Magistrate from the petitioner. When examined by the Magistrate, after the raid, the accused petitioner admitted that he had received the tainted currency notes from Sharif, P. W. for giving the same to Abdul Hameed, Patwari, but explained that the said money was to be given to the said Patwari as fee.

3. The accused-petitioner was sent up for trial before learned Special Judge, Anti-Corruption, Sahiwal f6r an offence under section 162, P. P. C. At the trial the prosecution produced 4 witnesses in support of its case. The accused-petitioner denied his guilt and produced 4 witnesses in his defence.

4. The learned trial Court however, believed the prosecution evidence and convicted the petitioner under section 1622, P. P. C. and sentenced him to one year R. I., vide his judgment dated 28-9-1980. The petitioner then filed an appeal in the High Court, which was dismissed vide the impugned judgment. The petitioner has now approached this Court for grant of leave to appeal.

5. It was contended by the petitioner's counsel that since he (the petitioner) was admittedly not a `public servant' and was merely assisting the Patwari in his private capacity in order to learn the work, the learned Special Judge, Anti-Corruption did not have jurisdiction to try the petitioner and that he could only have been tried by a Magistrate of the first, class, as provided in the 1st Schedule to the Criminal Procedure Code. In support of this contention he relied on Syed Ziaul Hassan Zaidi v. The State (1971 P Cr. L J 1056) and Wahid Bukhsh v. The State (1976 P Cr. L J 361), wherein it has been held that where the accused person is neither a public servant nor is he shown to be performing duties in the capacity of a public servant at the time of alleged offence, a Special Judge, Anti-Corruption had no jurisdiction to try him for offences under section 161, P. P. C. or section 5(2) of the Prevention of Corruption Act, 1947.

6. We are afraid the contention raised by the learned counsel for the petitioner is misconceived and the above-noted two judgments referred to by him do not advance the petitioner's case, because in those cases the accused were not tried on a charge under section 162, P. P. C. as in the present case but were tried and convicted under section 161, P. P. C. or section 5(2) of the Prevention of Corruption Act, 1947. The general law, making bribery, corruption and demanding or accepting illegal gratification punishable offences contained in sections 161 to 166 of the P. P. C. It would be noticed that most of the offence mentioned in the Schedule relating to demand or receipt of bribe by public servants. But a reading of sections 162 and 163, P. P. C. would showy that they make it punishable even for a private person to take gratification for himself or for any other person, as a motive or reward for exercising influence with a public servant so as to induce him to show favour to the person from whom bribe is received.

7. Prevention of Corruption Act, 1947, however a special legislative measure to curb bribery and corruption amongst the public servants. As is clear from the pre-amble of the said Act, it was enacted to make effective provisions for the prevention of bribery and corruption. The offences punishable under that Act are contained in section 5(1) of the Act. They only relate to demand or acceptance of bribe by public servants and are punishable under section 5(2). The Pakistan Criminal Law Amendment Act (XL of 1958), which is yet another special law relating to .such offences, was enacted for providing procedure for "speedier trial and more effective punishment" of persons accused of such offences. Section 2(b) of the said Act defines `public servants'. Section 3 provides that Special Judges may be appointed to try offences punishable specified in the Schedule to the said Act, while section 5(1) provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, or any other law, all offences specified in the Schedule to the said Act shall be triable exclusively by a Special Judge. A look at the Schedule would show that clause (a) thereof includes offences punishable, inter alia, under sections 161 to 166, P. P. C. and clause (c) mentions offences punishable under the Prevention of Corruption Act, 1947, as also attempts and abetments and conspiracies.

8. It is pertinent to note that in the present case the petitioner was tried for an offence under section 162, P. P. C. which reads as follows : "

162. Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant to do or to forbear to do any official act, or in the exercise of the official functions, or to render or attempt to render any service or disservice to any person with the Central or Provincial Government or Legislature, or with any public servant, as such, shall be punished with imprisonment of ether description for a term which may extend to three years, or with fine or with both." Now as already observed section 5(1) of the Pakistan Criminal Law Amendment Act (XL of 1958), alongwith the Schedule thereto clearly shows that an offence under section 162, P. P. C. though not committed by a public servant, is exclusively triable by a Special Judge, AntiCorruption. As such the petitioner, who was not a public servant, was rightly tried by a learned Special Judge for offence committed under section 162, P. P. C. In view of the above discussion the petition is dismissed as having no force. M. B. A.? Petition dismissed.