1970 P Cr (PLP)

(c) The Magistrate as P. W. 1 stated that on 21st August 1964, he recorded the statement of Nisar Ahmad where as the report shows that he recorded the statement of Nisar Ahmad on the 22nd August, 1964, at 7-00 a.m. in his house, at Nankana Sahib.' (d) The prosecution case suffers from material discrepancies and is too weak to sustain the conviction. (e) There is insufficient evidence to establish that Abdul Khaliq had accepted the currency notes, had put them into his shirt-pocket and on demand by the Magistrate had produced the same. According to the appellant, Nisar Ahmad placed the currency notes on the tea-table and the same were lying there when the Magistrate appeared and took them into possession. (f) There was no evidence on the record to establish that the sanctioning Authority had exercised discretion judici ously. In any case, the sanction order (Exh. P. M.) was not formally proved. Absence of duly proved sanction order was fatal to the case.

7. Nisar Ahmad did not state what information he conveyed to Sub-Inspector Mazhar Hussain; nor did Sub Inspector Mazhar Hussain state the details of the information conveyed by Nisar Ahmad to him. The substance of the information, which Sub-Inspector Mazhar Hussain mentioned in the application (Exh. P. A/1) to the District, Magistrate, Sheikhupura, showed that a public servant was demanding bribe and a raid was to be made. It did not disclose the identity of the public servant, the circumstances constituting the offence and the demand. Accordingly, it may safely be believed that Nisar Ahmad did not mention such details to Sub-Inspector Mazhar Hussain as would have entitled him to record a formal first information report. Besides, demanding bribe is an offence and so is receiving bribe. In this con nection reference may be made to the case Muhammad Sarwar v. The State (P L D 1969 S C 278). Can the receipt of bribe the Magistrate directed that a formal first information report be registered. This action is in accordance with law. The mere fact that Sub-Inspector Mazhar Hussain did not formally record the first information report (regarding demand of bribe) did not impair the proceedings relating to the receipt of bribe in any way. The objection is without force.

8. The proceedings were being taken in pursuance of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, and the rules made thereunder, read with the Prevention of Corruption Act, 1947, and the Pakistan Criminal Law Amendment Act, 1958. Section 5-A of the Prevention of Corruption Act, 1947, provides that no officer below the rank of Inspector of police shall investigate any offence punishable under any of the sections of the Pakistan Penal Code, men tioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the first class or make an arrest therefore without a warrant. In this case, the investi gation was made by Inspector Ch. Ahmad Khan (P. W. 2). So far as the proceedings of raid are concerned, Sh. Bashir Ahmad had been deputed by the District Magistrate, Sheikhu pura to do the needful. In particular, Sh. Bashir Ahmad required the appellant to produce the currency notes in question, whereupon the appellant put the currency notes on the tea table. Section 5 of the Code of Criminal Procedure provides: - "(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according the provisions hereinafter contained. (2) All offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investi gating, inquiring into, trying or otherwise dealing with such offences." Offence punishable under section 5(2) of the Prevention of Corruption Act, 1947, was required to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure, subject to the provision made in the Prevention of Corruption Act and the Pakistan Criminal Law Amendment Act. It follows that so far as "search" was concerned, the provisions of the Code of Criminal Procedure were applicable. Section 105 of the Code of Criminal Procedure provides as below: - "Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search-warrant." In other words, Sh. Bashir Ahmad, Magistrate III Class, was competent to direct a search to be made in his presence of the person of the appellant. It is incorrect to contend g that only a Magistrate of the 1st Class could give such a direction. Section 94 of the Code provides that "whenever any Court ..considers that the production of any docu ment or other thing is necessary or desirable for the purposes of any investigation, . . . . . such Court may issue a summons, ..to the person in whose possession .such document or thing is believed to be, requiring hire to produce it, at the time and place stated in the summons or order". Under section 96 such Court may issue a search warrant. Under section 105 whatever could be done by the Court could be done by the Magistrate. In this connection reference may be made to the case reported as Moolraj v. State of Himachal Pradesh (A I R 1955 Him. Pra. 51). The contention is without force.

9. A perusal of the proceedings recorded by the Magis trate would show that the statement of Nisar Ahmad (Exh. P. D) was recorded on the 22nd August 1964, at 7-00 a.m. Accord ing to the statement of the Magistrate as P. W. 1 this was done after they had been seated in the courtyard of Nisar Ahmad on the day of raid. Sub-Inspector Mazhar Hussain stated as follows: - "Since the raid had to be conducted on the following morning it was not advisable to get complainant's statement recorded on 21-8-1964. I accordingly gave the Magistrate to understand, who was about to record complainant's state ment on 21-8-1964, at Sheikhupura, that he should rather record the statement on the morrow. This suggestion found favour with the raiding Magistrate." Ordinarily, the Magistrate should have recorded the statement of Nisar Ahmad on the 21st August 1964. The Magistrate stated that the statement (Exh. P. D) was recorded before the arrival of the accused persons. The learned counsel, how ever, urged that the statement (Exh. P. B) could have been recorded after the conclusion of the raid and as such it had no value. Sh. Bashir Ahmad, Magistrate, positively stated that this statement had been recorded before the arrival of the accused persons. There is nothing on the record to disbelieve him on this point. Thus there was no technical irregularity. The objection is without force.

10. The following discrepancies are noticeable: - (a) The Magistrate stated that between the Baithak and the room, wherein they were sitting, there was a door, which was a little open through which they could peep. Later on, he stated that Sub-Inspector Mazhar Hussain, Aslam Khan and he himself, were peeping through- the chinks of the door because only one or two persons could stand there to see through the chinks. Sub-Inspector Mazhar Hussain (P. W. 4) stated as follows: - "There was a door which was closed and a window which was a little ajar. I stood near that window. The Raiding Magistrate stood near the door." The conflict between the two statements is obvious. (b) Nisar Ahmad stated that he sent the ruqqa (Exh. P. E) to the accused persons, reminding them of the breakfast appointment. His evidence suggested that before the raid was organised he had settled with the accused persons and had invited them to breakfast on the 22nd August, 1964. A perusal of Exh. P. E. would show that no reference was made to the earlier appointment and it contained an alternative request, namely, that if they did not agree to come to his house, he (Nisar Ahmad) would come to their house and asked them to keep breakfast ready for, him. This ruqqa gives far more details than were necessary. For instance, it mentioned an acrimonious altercation on the 19th August 1964, a subsequent reconciliation, shortage in the sugar bags and also "certain matters of inconvenience". This letter was said to have been sent through Saeed Ahmad. Saeed Ahmad was not examined in Court. No reference to this ruqqa was made in the state ment (Exh. P. D.). The Magistrate stated that Nisar Ahmad had been advised to speak loudly to indicate that the tainted money had been accepted by the accused persons. It was not agreed that Nisar Ahmad would read out the ruqqa loudly. Apparently, there was no occasion or justification for reading; out the contents of the ruqqa. I have examined the statements of Jan Muhammad and Abdul Khaliq appellant, made immediately after the occurrence, and find that neither of, them mentioned the reading of the ruqqa by Nisar Ahmad. It is remarkable that Sh. Bashir Ahmad Magistrate as P. W. 1 made no reference to this ruqqa or to the reading of its contents by Nisar Ahmad. It is true that Nisar Ahmad (P. W. 3) and Sub-Inspector (P. W. 4) did mentioned this ruqqa, whereas Nisar Ahmad and Sub-Inspector Mazhar Hussain P. Ws. introduced the subject of bribe by a reading-aloud of the ruqqa (Exh. P. E.), the Magistrate, without mentioning the ruqqa stated as below: - "Then Nisar complainant said to the Inspector (Abdul Khaliq accused). There are your Rs. 20 of the last balance and Rs. 30 for this month. Have this month and take pity on me by doing my work as I am a poor man and have to support my children". I could hear this talk between the complainant and the accused." The contradiction on this material aspect of the case is obvious. A look at the ruqqa (Exh. P. E) would show that the date "22/8/" is in an ink different from the ink in which the body of the ruqqa had been written. Under the circum stances, the possibility that Nisar Ahmad and Sub-Inspector Mazhar Hussain introduced the ruqqa subsequently, cannot be ruled out. (c) The Magistrate stated that after the accused persons had arrived and had been seated in the baithak, Nisar Ahmad came to the raiding party and indicated to the Magistrate the accused persons through the chinks of the door. Nisar Ahmad and Mazhar Hussain, however, did not mention this fact.

11. We now examine contention (e) mentioned above. Nisar Ahmad stated that Abdul Khaliq, on the exhortation of Jan Muhammad, picked up the currency notes and put them into his shirt-pocket. He further stated that the Magistrate on appearance in the baithak "asked them to produce the tainted money" and Abdul Khaliq accused at once took out P. I to P. 6 and placed the same on the tea-table. Sub-Inspector Mazhar Hussain stated that Abdul Khaliq put the currency notes into his pocket although he did not mention the exhortation by Jan Muhammad. He also stated that on the demand by the Magistrate Abdul Khaliq produced the tainted money. The Magistrate stated that when Abdul Khaliq had laid down the currency notes on the table, somebody out of the persons said "Take it". He also stated as follows: - "I then went over to the accused.. .and asked the accused to bring out the money which he had taken as bribe from the complainant. The accused first denied having received the bribe but then brought forward fifty-rupee currency notes Exhs. P. 1 to P. 6 whose numbers I tallied with the ones already noted by me." Jan Muhammad and Abdul Khaliq, in their statements made immediately after the occurrence, stated that the currency notes continued to lie at the tea-table and denied (i) that Jan Muhammad had exhorted Abdul Khaliq to take the money, and (ii) that Abdul Khaliq had picked the money, Qureshi Fazal-ur-Rahman and Ghulam Ahmad were eye-witnesses of the occurrence but were given up on the ground that they had been won-over. In other words, the statements made by Qureshi Fazal-ur-Rahman and Ghulam Ahmad immediately after the occurrence were not duly proved and, therefore, were eliminated from consideration. They were not examined in defence either. The cumulative effect is that Nisar Ahmad, Sub-Inspector Mazhar Hussain and the Magistrate positively stated that the appellant had picked up the currency notes, that he had put them into his shirt-pocket and that, on the demand made by the Magistrate, he had produced the same. There is ample evidence on the record to establish that there were differences between Muhammad Iqbal and Nisar Ahmad on one hand and the appellant and Jan Muhammad on the other. According to Muhammad Sadiq (D. W. 1), the accused persons had been making formal inquiry against Muhammad Iqbal. In this connection reference may be made to the copy (Exh. D. W. 1/B). When the appellant received Rs. 50 from Nisar Ahmad for showing favour to him in the smooth running of the sugar depot, it may be presumed, within the meaning of subsection (2) of section 7 of the Pakistan Criminal Law Amendment Act, 1958, that he accepted the said sum as a motive or reward such as is mentioned in sec tion 161, P. P. C. The contention is without force.

12. The sanction order relating to the appellant, issued in pursuance of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, is Exh. P. M. Learned counsel for the appellant assailed Exh. P. M. on the following two grounds, namely: - (a) that Mr. Muhammad Aurangzeb, Deputy Director Food, Lahore, had not been examined to show that he accorded the sanction; and (b) that the sanction order did not indicate what papers had been submitted to Mr. Muhammad Aurangzeb on con sideration of which he accorded the sanction. According to the learned counsel, this document did not show that the officer exercised the discretion judiciously and that it was necessary and expedient in the interest of justice to accord sanction. Before putting the challan in Court, the Investigating Officer obtained the sanction order which purported to have been issued by Mr. Muhammad Aurangzeb, Deputy Director Food, Lahore, in pursuance of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958. This sanction order is a public document within the meaning of section 74 of the Evidence Act. The original sanction order, has been placed on record. In the trial Court no objection was raised against the admissibility on the ground that it was not duly proved to have been issued by Mr. Muhammad Aurangzeb, Deputy Director Food, Lahore. The document was exhibited as Exh. P. M. The appellant cannot be permitted C to raise this objection at the appellate stage. In this connec tion, reference may be made to the cases reported as S. M. K. Alvi v. Crown (P L D 1953 F C 189) and Abdul Khaliq v. State (P L D 1963 Kar. 26). Further, under section 114 illustration (e) of the Evidence Act, 1872, the Court may presume that all official acts have been regu larly performed. The learned Special Judge was, therefore, justified in presuming that the sanction order (Exh. P. M.) had been duly issued by the Deputy Director Food, Lahore.

13. A perusal of Exh. P. M. ex facie shows that the main facts constituting the offence were brought to the notice of the Deputy Director, who, after considering the facts, felt satisfied that "the sanction for his prosecution is necessary and expedient". It was hardly necessary for him to give any reasons for it. This contention is devoid of force.

14. In view of what has been stated above, it is fully established that the appellant received Rs. 50, as gratification other than legal remuneration as reward for showing favour to Nisar Ahmad and Muhammad Iqbal in the smooth running of the sugar depot. His conviction under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, is fully justified. In the matter of sentence he has already been leniently treated. In the result the conviction and sentences are maintained and the appeal is dismissed. Appeal dismissed.