P L D 1956 Lahore 81 (PLP)

KAIKAUS, J.‑This is an appeal by one A. R. Masud Alvi, who was convicted by a Special judge of an offence under section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced to rigorous imprisonment for two years and a fine pf Rs.1,000 or in default of payment of fine further rigorous imprisonment for six months. The appellant was employed as a Government Food Inspector and was posted at Layallpur. Amongst his duties as Food Inspector was included the prevention of adulteration in milk so that he had to take samples of milk and send them to the Public Analyst and in case the milk was found to be adulterated, he had to prosecute the person concerned. The prosecution story is that Rahmat Ullah (P. W. 3), who is a milk seller of Layallpur, was threatened by the appellant with continuous prosecution if he did not pay him Rs. 100 per month as bribe. Rahmat Ullah, it is stated, entreated the appellant not to demand such a heavy sum, but ultimately agreed on the 25th of April, and promised to pay Rs. 100 to the appellant on the next day at the shop of Mumtaz, his son. After making this appointment with the appellant, Rahmat Ullah contacted Muhammad Iqbal, a Sub‑Inspector of the Anti‑Corruption Department. The next day Muhammad Iqbal took him to Mian Muzaffar‑ud‑Din, a Section 30 Magistrate, who happened to be the Duty Magistrate, on that day. Mian Muzaffar‑ud‑Din recorded the statement of Rahmat Ullah and a trap was arranged. Rahmat Ullah produced before Mian Muzaffar‑ud‑Din ten currency notes of Rs.10 each, the numbers of which were noted down. The person of Rahmat Ullah was searched. Muhammad Iqbal and Mian Muzaffar‑ud‑Din then went to the shop of Mumtaz and they concealed themselves behind a tin curtain in which there were holes so that they could see and hear what went on in the shop. At about noon when Rahmat Ullah as well as his brother Hidayat Ali (P. W. 4) were present the appel lant came to the shop and took his seat on a chair. Rahmat Ullah offered him tea but he declined saying he was unwell. Rahmat Ullah then sent for sharbat for him which he took. The appellant had in the meantime picked up a newspaper and was reading it. The appellant then demanded a sum of Rs.100 from Rahmat Ullah who took the money out of the pocket of his shirt and handed it over to the appellant. The appellant after counting the notes put them in his hat, which he was holding in his hand. Rahmat Ullah told the appellant that he was going to Karachi and he should see that he was not challaned in any case. The appellant replied that as long as he went on paying the money he need have no fear. At this juncture Mian Muzaffar‑ud‑Din and Muhammad Iqbal came out of the hiding place and recovered the currency notes from the sola hat, which was in the hand of the appellant. A recovery memo was prepared as well as a raid report. The appellant was arrested and later challaned. Before I deal with the prosecution evidence and the statements of the defence witnesses I have to notice two objections to the legality of the trial. The first objection is that a conviction under section 5 (2) of the Prevention of Corruption Act, 1947, is not possible for that section is no longer in force. Under section 1 (3) of the Prevention of Corruption Act, 1947, section 5 was to remain in force only for a period of three years. By an amendment effected in 1950, subsection (3) which provided for a time limit was deleted. The amending Act was passed by a Federal Legislature which, it is argued, was not properly constituted. In view of the judgment of their Lordships of the Federal Court in Federation of Pakistan v. Ali Ahmad Shah (PLD1955FC522,) and the Governor‑General's Ordinance XVI of 7955 validating the Constituent Assembly Increase and Redistribution of Seats Acts, this objection has no, force. I may also point out that the appellant had in this case been charged under section 161 as well as section 5 (2) of the Anti‑Corruption Act and as the facts which have been proved against him constitute an offence under section 161 also, there can be no objection to the alteration of the conviction to one under section 161 P. P. C. so that even if the Prevention of Corrup tion Act was not in force the conviction of the appellant would not be set aside. The second objection put forward relates to the validity of sanction for prosecution under section 6 of the Prevention of Corruption Act, 1947, which section was in force when the prosecution was launched, It is urged that the sanction should be given only after the officer who grants sanction applies his mind to the facts of the case and reaches a conclusion that a prosecution is expedient in the interest of justice. With this proposition I have no quarrel for that is what a sanction involves. Leaned counsel draws my attention to the sanction granted in this case which is by the Director of Health Services and relies on the use of the word "said" in the sanction for the proposition that the Director of Health Services had not at all applied his own mind to the facts of the case. In order to appreciate the point it is necessary to quote the sanction verbatim. It runs:‑ "Sanction under section 6 of the Prevention of Corruption Act II of 1947. Whereas it has been made to appear to me that A. R: Masud Alvi, Government Food Inspector, Layallpur, being a public servant, had in the month of April, 1953, demanded a monthly bribe of Rs. 200 from Rahmat Ullah son of Muhammad Ida, milk and cream vendor of Layallpur, and had ultimately agreed to accept Rs.100 per month as illegal gratification from him as a motive or reward for showing favour to him in connection with the official functions of himself, viz., for not checking the milk and cream offered by the said Rahmat Ullah for sale and not prosecuting him for any contravention of the provisions of the Pure Food Act and the rules framed there under. And whereas the said, A. R. Masud Alvi, Government Food Inspector, is said to have accepted Rs.100 on 26th April, 1953, as illegal gratification, from the said Rahmat Ullah for the aforesaid purpose and thus committed offences under section 161 P. P. C. and section 5 (2) of the Preven tion of Corruption Act, II of 1947. And whereas the Director of Health Services, Punjab, is the authority competent to remove a Government Food Inspector from his office. Now, therefore, I, Lt. Colonel F. M. Khan, Director, Health Services, Punjab, in exercise of the powers conferred upon me by section 6 clause (c) of the Prevention of Corruption Act, II of 1947, hereby accord sanction to the prosecution of the said A. R. Masud Alvi. Government Food Inspector, Layallpur, under section 161, P. P. C. and section 5 (2) of the Prevention of Corruption Act, II of 1947. (Sd.) F. M. KHAN, 5‑5‑1953 Director, Health Services, Punjab". The first part of this document would show that the Director of Health Services had, after going into some facts, reached the conclusion that there was prima facie material with respect to the commission of offences under section 5 (2) of the Prevention of Corruption Act and 161 of the P. P. C. Learned counsel urges that the use of the word "said" in that part of the document which relates to the receipt of Rs.100 would show that the Director of Health Services did not himself accept this part of the prosecution case and gave sanction without reaching a conclusion. I do not think that is a proper way of interpreting the document. The document has to be read as a whole. It cannot be said that with respect to the agreement about payment of the bribe and the facts mentioned in para. I of the document the Director of Health Services did reach a conclusion that there was a prima facie case, but with respect to the actual taking of money he formed no such opinion. The word "said" in this context would only mean that that is the charge against him. It is to be remembered that the object of the recital of the facts was to identify the incident that was the subject‑matter of the sanction. There is no obligation on the officer granting the sanction to state in his order that he finds a prima facie case and that he also considers a prosecution expedient in the interest of justice. That is involved in the grant of a sanction. Learned counsel wants to make an adverse inference because of the use of the word "said". I cannot simply on a perusal of the document reach a conclusion that the Director of Health Services had not applied his mind to the material facts of the case. The presumption is that official acts are regularly performed, and though the Court may refuse to presume, in view of the contents of the order, the validity of sanction the use of the word "said" is insufficient by itself to be the foundation of an adverse finding. Learned counsel for the appellant has urged that I should summon Mr. F. M. Khan, the then Director of Health Services as a witness and examine him. This point was not urged before the trial Court, nor was it taken in the grounds of appeal before me. In so far as it is a question of law there ran_ be no objection to its being raised but I do not think I should allow any further evidence to be led on the point. Mr. F. M. Khan who granted sanction is now said to be in Quetta and the request for summoning him as a witness has come very late, i. e., only during arguments. Reliance has been placed in this connection upon Tufail Muhammad v. The Crown (P L D 1954 Lah, 37) in which case it was held after an examination as a witness of the Director of Agriculture who had granted sanction that he had not properly applied his mind to the material facts of the case. In that case the Director of Agriculture acted on a letter received from the Superintendent of Police along with which a draft sanction order was also forwarded. Learned counsel wants me to hold on the authority of that judgment that on the basis of a report no sanction could be granted and that there should ‑ be some sort of personal enquiry by the officer granting the sanction in each case. The case cited is hardly an authority for the broad proposition put forward. All that it lays down is that there should be a proper application of mind by the officer granting sanction to the material facts of the case and the sanction should be granted after reaching a conclusion that the prosecution is expedient in the interest of justice. Section 6 of the Prevention of Corruption Act does not make a personal enquiry before grant of sanction essential and it is obvious B that a prosecution may in so many cases have to be sanctioned on the basis of a report. The Governor and the Governor General have also to grant sanctions for prosecution. It cannot be expected that they will make personal enquiries as to facts. In the present case it is not possible to hold on the material before me that the officer who granted sanction failed in his legal duty. I would, therefore, reject this preliminary objection. I proceed now to consider the merits. The prosecution story has been supported by Mian Muzaffar‑ud‑Din, section 30 Magistrate, Muhammad Iqbal, Sub‑Inspector of the Anticorruption Department, Rahmat Ullah, the complainant, and Hidayat Ali, the brother of Rahmat Ullah. The appellant, when examined on the 6th of July, 1953 after the statements of the prosecution witnesses except Mian Muzaffar‑ud‑Din had been recorded, simply denied his guilt and gave no explanation as to how he happened to be at the shop of Mumtaz, son of Rahmat Ullah, or how the money was recovered from him. On the 23rd of October 1953, when he examined the defence witnesses he also put in a written statement. In that written statement he explained that on the 25th of April, 1953 Rahmat Ullah complainant had met him at the shop of one Manzoor Ahmad, a milk seller, and promised to help him in dealing with milk sellers who were selling adulterated milk. For this purpose he asked him to come to his shop the next day and it was in this connection that the appellant had gone there. The appellant stated further that Rs.100 were recovered not from his person but from his hat which was lying on a bench. The appel lant produced three witnesses in defence. The first is Aftab Ahmad, aged 20 years, who is a syrup seller. He says he had brought the sharbat' which the appellant drank in the shop of Mumtaz and that nothing had taken place in his presence. The second is Manzoor Ahmad, a milk seller and halvai at whose shop an appointment had been made for the appellant going to the shop of Mumtaz the next day. Muhamamd lqbal (D. W. 3) is a timber merchant of Layallpur. He says he had gone to the shop of Manzoor Ahmad to buy some sweets and he heard some conversation between him and Rahmat Ullah making an appointment for the next day. The prominent feature in this case is the total absence of any motive for the prosecution witnesses to implicate the appellant falsely. Rahmat Ullah, it is urged by learned counsel for the appellant, is not a milk seller at all and it is said that there was no reason why the appellant should demand any money from him, but if he is not a milk seller and only a cream seller, there is no reason why he should give false evidence against the appellant and lay a trap for him. An application put in by the milk sellers of Layallpur and submitted to the Public Analyst has been brought on the record by the defence. It bears the signatures of Rahmat Ullah. It contains a complaint against the atrocities perpetrated by the appellant. This application being by the milk sellers of the town it would appear that Rahmat Ullah is also one of them. In fact no evidence has been led to show that Rahmat Ullah is not a milk seller. On the basis of this application it would have been possible to argue that Rahmat Ullah's attitude is hostile to the appellant but it has not been urged before me by learned counsel for the appellant that Rahmat Ullah has any grudge against him. This is because learned counsel does not accept that Rahmat Ullah is a milk seller. He says Rahmat Ullah signed the application at the instance of others who were in fact interested. The reason for his giving evidence is stated to be that he is a tool in hands of the enemies of the appellant but no such enemies are named. A perusal of the prosecution evidence shows that the appellant never put any part of his defence to the prosecution witnesses. It was never suggested in cross‑examination that the appellant had gone to the shop of Rahmat Ullah on account of the promise of Rahmat Ullah that he would assist in the detection of adulterated milk, nor was it suggested to the prosecution witnesses that the money was recovered from a hat which was lying on a bench or had been surreptitiously put into the hat by Rahmat Ullah or Hidayat Ali. It was never suggested to Rahmat Ullah that he was acting as a tool of somebody. There is no explanation at all as to why the appellant made no statement as to the reason of his being present at the shop when he was examined in July, 1953. Mr. Muhammad Iqbal, Sub‑Inspector Anti‑Corruption Department, and Mian Muzaffar‑ud‑Din, Section 30 Magistrate, are themselves witnesses to the talk that took place between Rahmat Ullah and the appellant as well as to the passing of money from Rahmat Ullah to the appellant. In their cross‑examination no suggestion, even was made as to why they should depose falsely against the appellant and nothing has been urged against them before me. With respect to the witnesses produced in defence it is sufficient to say that the defence taken is too late, although even otherwise their statements do not inspire confidence. The story put forward in defence is not even a plausible one. One of the defence witnesses is a milk seller and the other is a chance witness. The evidence in the present case is overwhelming and there is not the slightest doubt as to the guilt of the appellant. I uphold the conviction. It is next urged that considering that the appellant will lose his job and will be debarred from entering into Govern ment service in future and that I should reduce the sentence. Considering the circumstances I reduce the sentence of imprisonment to one year's rigorous imprisonment. The sentence of fine of, Rs.1,000 and the imprisonment in default stands. A. H. Sentence reduced.