1969 PLP 843 (SCMR)

The appellant, Abdul Hadi, was the Head Clerk to the Assistant Muhktiarkar, Dadu, engaged in Rehabilitation work. A piece of land, bearing Survey Nos. 307, 308 and 392, of which one Muhammad Saleh was the tenant, was declared evacuee property and allotted to one Ibadat Ali. According to the prosecution case as disclosed in the first information report made on 10th of December 1952 at 8‑45 a.m., a notice from the Muhktiarkar of Dadu was received on 16th of October 1952 by Muhammad Saleh to quit the land. He appeared before the Muhktiarkar and the Assistant Mukhtiarkar on the 19th of October 1952 with the request that his possession might not be disturbed and that he should be permitted to continue as a tenant as before. To the same effect an application was made to the Collector of Dadu who referred it to the Assistant Mukhtiarkar. The Assistant Mukhtfarkar held out a promise that some Settlement would be brought about between him; and the allottee, but nothing turned out. On 7th of December 1952, he received another notice to give up the tenancy within a week. It was then alleged that on 9th of December Muhammad Saleh approached the. appellant and entreated him to help him and stop his ejectment. At first he advised him to give up the possession. Pressed further, the appellant took him along to his house and on the way asked him to pay Rs. 100 and he would see that his tenancy was maintained and the land was not taken away from him. In the evening, he met the appellant at his house and paid Rs.

90. The balance of Rs. 10 was to be paid the following morning when an application drafted by the appellant would be given over to him and after it was typed, it would be taken and presented to the higher authorities. Early in the morning of the 10th of December 1952, Muhammad Saleh met the Anti‑Corruption Inspector, Dadu, and narrated to him his story. A currency note of the denomination of Rs. 10 was marked and given to Muhammad Saleh. A trap was arranged. Muhammad Saleh went to the shop of Abdul Sattar, brother of the appellant, where the draft was to be available. The Anti‑Corruption Inspector and the Mashirs lay in wait. Abdul Sattar and one Pir Muhammad were at the shop. The money was paid and the draft received from Pir Muhammad. Immediately after, the Anti‑Corruption Inspector recovered the marked currency note from Pir Muhammad and the draft of the appeal from Muhammad Saleh. After this the F.

1. R. was registered and on the completion of the investigation the appellant was tried with the result mentioned in the beginning. As to the passing of Rs. 90 on the evening of 9th of December, the learned Judges of the Chief Court observed: "We are doubtful whether the payment of Rs. 90 to the appel lant has been proved. The conduct of Muhammad Saleh appears suspicious and is not explained. Why he should after spending as much as Rs. 90 forego all the benefits which he had thought he would receive from such payment by lodging the complaint with the Anti‑Corruption Police is a point which we think goes in favour of the appellant. Upon the previous application of Muhammad Saleh the appellant had minuted that the Assistant Mukhtiarkar had already passed order regarding eviction and that Muhammad Saleh should be evicted accordingly. This may have come to the knowledge of Muhammad Saleh and he may therefore have felt bitterly towards the appellant . . . . . We therefore think that it is unsafe to accept this portion uncorroborated as it is of Muhammad Saleh's evidence." The payment of Rs. 10 was held proved on the evidence of both the Deputy Superintendent of Anti‑Corruption Police and of the Mashirs corroborated as it was by the recovery of the money from Pir Muhammad and the production of the draft by Muhammad Saleh. The learned Judges remarked: "It appears that the arrangement between Muhammad Saleh and the appellant had been that the appellant would draft ‑an appeal for Rs.

10. The question whether this is an offence under section 5(d) (2) of the Act which refers to `corrupt or illegal means or by otherwise abusing his official position'. We think it is an abuse of official position when an officer of Government whose duty it is to note upon application receives money for the drafting of an application in connection with those duties". The sole question for determination is : whether in the circumstances of this case, the passing of Rs. 10 could be said to have been obtained by "corrupt or illegal means or by other wise abusing his position as public servant". The learned Judges of the Chief Court have found against the appellant on the ground that his duty was "to note upon application". There is no evidence to show that after the case had been disposed of by the Assistant Mukhtiarkar, the appellant, his Head Clerk, had still something to do with the appeal which might be filed against the order of ejectment or that he was in the course of his official duties ever to get a chance to make a note upon the appeal. His minuting on the previous occasion, which appears to have been in the minds of the learned Judges, was done at a time when the application was in the office of the Mukhtiarkar this is Exh. P. 26, dated the 21st of November 1952, and is addressed to the Collector, Dadu. This was forwarded to the Mukhtiarkar of Dadu for disposal on merits and bringing about settlement if possible. The application was taken up on 26th of November. There is a note by the appellant of that date in which the various proceedings that had been taken regarding the evacuee land were detailed and it was recommended that the possession was unauthorized and had to be restored to the refugee allottee and that the application be filed. It was, consequently, filed on 28th of November. The appeal against the order of the Mukhtiarkar was prepared by the appellant at the request of Muhammad Saleh in consideration of the remuneration of Rs. 10 as held by the Chief Court Muhammad Saleh might have approached the appellant in the confidence that he, i. e. the appellant, was well versed in the Rehabilitation Laws and might be helpful to him in the drafting of the grounds of appeal. It was on account of the knowledge o the appellant that the money was paid and not on account of the reason that in his official capacity he was in a position to do anything or get done anything for the benefit of the tenant was then surely acting in his private capacity as a citizen and not as a public servant and the question of the abuse of his position "as public servant" did not arise. On the above view of the case, the conviction cannot be allowed to stand. The appeal is, therefore, accepted and the appellant acquitted of the charge against him. CORNELIUS, J.‑I agree that this appeal should be allowed. It is admitted that the appellant wrote the grounds of appeal for the benefit of Muhammad Saleh, in a matter pertaining to the Department of the Public Service in which the appellant was employed. While it is clear that the appeal was to be dealt with at a higher level than the office in which the appellant was working, it cannot be denied that his action was not within the accepted standards of departmental conduct. If such actions were generally tolerated, there can be little doubt that the integrity and efficiency of the public service as a whole would be placed in jeopardy. But that consequence is not sufficient for bringing the action within the categories to which the charge under the Prevention of Corruption Act, 1947, is confined. The money was paid for the labour of drawing up the grounds of appeal, and cannot be regarded as having been obtained by corrupt or illegal means. Can it be said to have been obtained by "abusing his position as a public servant"? I think not, for the action did not bring into play the appellant's status as a public servant, but only certain special knowledge which he may have acquired in that capacity. While therefore I consider the appellant's action to be reprehensible departmentally, I am unable to regard it as falling within the charge preferred against him. SHAHABUDDIN, J.‑I agree that the appellant should be acquitted. His action cannot be said to amount to an offence punishable under the Prevention of Corruption Act. Although as pointed out by my brother Cornelius it was reprehensible departmentally. Appeal accepted.