1. HAMOODUR R AHMAN, C. J.--This appeal, by special leave, arises out of a judgment of a learned Single Judge of the erstwhile High Court of West Pakistan, Bahawalpur Circuit, dismissing an application under section 561-A of the Criminal Procedure Code for quashing the criminal proceedings pending before the Special Judge, Anti-Corruption, Multan, against the appellant.
2. The appellant, who is not a public servant, was charged by Ch. Badruddin, then D. S. P., Alipur, on information received by him, for having demanded Rs, 1,000 from two persons, who were accused in a murder case registered at Kundai Police Station, for giving the same to the police officers engaged in the investigation of that case, on the plea that thereby he would be able to influence the said police officers to show some favour to the said accused persons and for having actually received in part Rs, 250 for the said Purpose, although no police officer connected with the said case had demanded any illegal gratification or offered to show any favour to the said accused persons.
3. The D. S. P. lodged an information to the above effect against the appellant at Alipur Police Station on 18-10-67, alleging that the appellant had committed offences under sections 420 and 165-A of the Penal Code. The appellant was thereafter challaned and put up for trial before the Special Judge, Multan, where he was examined under section 242, Cr. P. C.
4. The substance of the accusations as stated to the appellant in such examination were as follows :- "The allegations against you, Ghulam Rasul accused, are that in the month of September 1967, you demanded rupees one thousand and actually accepted Rs, 250.00 as part-payment from Amir Bakhsh and Khair Muhammad P. Ws. as illegal gratification for passing on the same to D. S. P., Alipur on the assurance that by using your influence you will secure favour of the said D. S. P. for Amir Bakhsh and Khair Muhammad aforesaid in connection with their involvement in a murder case relating to the death of one Ghausa and thereby committed offences punishable under sections 163 and 165-A of the Pakistan Penal Code.
5. What have you to say regarding these allegations?"
6. The complainant D. S. P. was also examined by the Special Judge on oath on the 5th of April 1968, but no other witness was examined for a long time. The appellant, thereupon, on the 18th of January 1969, moved the High Court for quashing the proceedings, on the ground that neither the accusation nor the evidence of the D. S. P. made out any case under section 165-A, P. P. C. The offence, if any, committed by the appellant fell under section 420, P. P. C , which was in this case not exclusively triable by the Special Judge, because, under the Second Schedule to the Criminal Law Amendment Act of 1958, an offence punishable under section 420, P. P. C., and attempts abetments and conspiracies in relation thereto or connected therewith can be tried by a Special Judge only when committed by a public servant, or by any person acting jointly with, or abetting or attempting to abet or act in conspiracy with, any public servant as such. The appellant claimed, therefore, that upon the accusations made against him the Special Judge had no jurisdiction to try him and prayed that the proceedings be quashed.
7. Before the High Court the learned counsel appearing for the State conceded that section 165-A of the Penal Code was not attracted in the facts of this case, but contended that the appellant was, nevertheless, guilty of having committed an offence punishable either under section 162 or section 163 of the said Code. The mere mention of a wrong section of the Penal Code in the challan was, therefore, not sufficient to entitle the appellant to have the proceedings quashed. The High Court agreed with this and dismissed the application for quashment.
8. Leave was granted to the appellant to consider whether on the accusation made in the first information report as well as in the statement of the D. S. P. before the Special Judge any offence either under section 162 or section 165-A of the Pakistan A Penal Code was made out. If not, whether the appellant could be tried by the learned Special Judge only in respect of an offence! under section 420 of the Penal Code.
9. Learned counsel for the appellant points out that section 165-A of the Penal Code only punishes abetment of offences under section 161 or section 165. This section was designed to rope in persons offering bribes. But in this case since no bribe was offered to any one, this section was not at all attracted. Similarly, the learned counsel contends that neither section 162 nor section 163, P. P. C. are applicable in this case, because, upon the allegations made by the D. S. P. no public servant had been approached or attempted to be induced by corrupt or illegal means or by personal influence to do or to forbear from doing any official act or in the exercise of his official functions to show favour or disfavour to any one.
10. These two sections are in the following terms :- "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 of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central or any Provincial Government or Legislature, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
163. 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 the exercise of personal influence, any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central or any Provincial Government or Legislature, or with any public servant, as such, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
11. Under these sections the essential ingredient of the offence is that the gratification should have been received "as a motive or reward for inducing" either by corrupt or illegal means or by B personal influence, any public servant to do or to forbear to do an official act or to show favour or disfavour to any person.
12. In the present case the allegation in the F. I R. was that the appellant had "demanded Rs, 1,000 as bribe from the accused party by representing that he would get certain con-cessions from the Investigating Officers". This did not allege that the amount would be offered as a bribe to the Investigating Officers but in his statement the D. S. P. did say that the appellant "had demanded Rs, 1,000 from Amir Bakhsh and Khair Muhammad P. Ws. for giving the same to him as illegal gratification". The allegation in the statement of the D. S. P. would bring the appellant within the mischief of section 162, but the allegation in the F. I. R. would be sufficient only to bring him within the mischief of section 163 of the Pakistan Penal Code, for, the allegations would amount to the acceptance of a gratification "as a motive or reward for inducing, by the exercise of personal influence, any public servant to do or forbear to do an official act". Even if there was no allegation of the employment of corrupt means, the alleged demand was certainly as a reward for inducing, by the exercise of personal influence, a public servant to do or forbear to do an official act.
13. The gist of the offence under these sections lies in this that the money should have been obtained for the avowed purpose of inducing a public servant either by corrupt or illegal means or by the exercise of personal influence to do or to forbear from doing an official act or to show favour or disfavour to another person. It is not essential that any actual attempt should have been made to corrupt a public servant by illegal means or that personal influence should have been brought to bear upon a public servant but all that is necessary is that the giver of the money should have paid the money as a motive or reward for so inducing a public servant, i,e, acting in the belief that the person taking the money would either corrupt a public servant by illegal means or induce him by the exercise of his personal influence to show farour or disfavour to the giver of the money.
14. Learned counsel appearing in support of this appeal has, however, relying on a passage from Sir Hari Singh Gour's book on the Penal Law of India, 7th Edn., Vol. I, p. 75, urged that unless there is some evidence to show that an attempt at least was made to corrupt a public officer or to induce him by the exercise of personal influence, "the receiver may be guilty of cheating but he could scarcely be convicted" under these sections. It was essential, therefore, according to him, that in the accusation the officer sought to be corrupted or induced should have been named. A mere vague allegation that the accused had obtained money from another on the representation that he would either corrupt or induce some public officer without indicating as to who that public officer was or what was the nature of the favour or disfavour to be shown, the offence would only be an offence of obtaining money under a false representation, i,e, the cheating.
15. The above comment of the learned author was noticed in the case of Osimuddin Sarkar v. State , but was not accepted. It was held that even a gratuitous agent for a bribe-taker may come within the mischief of sections 162 and 163 if he accepts the money knowing that the purpose is to pay it by way of a gratification to a public servant.
16. Learned counsel has also sought to draw assistance for this proposition from certain observations in the case of Queen-Empress v. Ma Ka . In that case a woman, whose husband was being tried for an offence before a Magistrate offered Rs, 30 to the Magistrate for letting him off. She was tried for the offence but the trial Court acquitted her on the ground that a "relative and a hanger-on of the Magistrate" had asked her for a bribe on the Magistrate's behalf and this, according to the trial Court gave her reasonable ground for believing that the man who had asked for the bribe, was1 2 acting either on behalf of or as an agent of the Magistrate. She was, therefore, not liable as a bribe- giver.
17. The Judicial Commissioner of Burma set aside the acquittal and convicted her under sections 161 and 116 of the Penal Code and sentenced her to R. I. for six months. In his judgment the Judicial Commissioner observed that "to admit that solicitation of a bribe by a third person without the privity or connivance of the public servant concerned" can be treated "as an excuse for giving a bribe to such public servant" would be an absolute absurdity. This does not mean, as sought to be contended by the learned counsel for the appellant, that where there is no privity with or connivance of a public servant there would be no offence under these sections. All that the Judicial Commissioner pointed out there was that it would be an absurd proposition to suggest that unless there was such privity or connivance of a public servant the solicitation of a bribe by a third person for corrupting or influencing that public servant would not be an offence. This has been made abundantly clear by the concluding observations of the Judicial Commissioner at p. 166 of the reports, which are to the following effect :- "The view of the Magistrate amounts to this, that it is no offence for a person to offer or give money to a public servant to induce him to commit a breach of duty or otherwise to do wrong if money is asked for, or if the person is led to believe that the public servant is corrupt, even although such public servant is of perfect integrity and absolutely innocent of all knowledge of the request made.
18. The proposition has only to be stated in plain terms to make manifest its profound absurdity, not merely as a matter of law, but as a matter of the most ordinary common sense."
19. There is nothing in the judgment, therefore, which can lend any support to the contention now sought to be advanced by the learned counsel.
20. Learned counsel next attempted to argue that the failure of the complainant to mention in the F. I.
21. R. the name of the officer sought to be corrupted or influenced was a fatal defect as without a principal offender there could be no abetment. In support of this contention he has relied on an old decision in the case of Queen v. Setul Chunder Bagchee . Setul Chunder was charged with having attempted to obtain from his employer Kamessoree Debi, for another person or persons, "names unknown", a gratification as reward for inducing a public servant in the exercise of his official functions to show favour to the said Kamessoree. The only evidence adduced on behalf of the prosecution in that case was a letter written by the accused to Kamessoree saying that he had agreed "to pay Rs, 30 in the event of success."
22. In his own statement the accused stated that the above passage in the said letter referred to an arrangement which he had made with a pleader to pay him Rs, 30 over and above his legitimate fees in the event of success. It was in those circumstances that the superior Court thought that in the absence of the name of the person to whom the reward was to be paid the charge disclosed no offence and quashed it. This did not mean that the name of the public officer who was to be corrupted or influenced had also to be mentioned. The ratia decidendi of this decision appears to be that the accusation was extremely vague, for, even the name of the person to whom the gratification was to be paid had not been mentioned.
23. In the present case, it is true that in the F. I. R. the officers who were proposed to be corrupted or influenced were not named but in his statement the D. S. P. did clearly state that "the money had been demanded and accepted for giving the same to him as illegal gratification." Again in the substance of the accusation stated to the appellant under section 242, Cr. P. C. all the necessary particulars had been furnished and even the name of the public officer to be corrupted or influenced had been mentioned. The appellant was left in no doubt of the precise case against him. The omission of the name of the public officer in the F. I. R. could not, in the State circumstances, make this case one in which no legal offence was -- disclosed. The accusations did disclose with sufficient particularity 3 the nature of the offence alleged.
24. The decision of the Madras High Court in the case of R. Chinnaswami Iyengar v. Emperor is also not of much assistance, for, in that case the facts were that one of the accused, who was a cook under the first accused, a Subordinate Magistrate, was given Rs, 50 to be delivered by him to the Subordinate Magistrate as a bribe and that he knew that it was intended as a bribe. It was held that on this evidence the cook could not be convicted under section 162, P. P. C., because, he did not accept or obtain the money as a motive or reward for tampering with the Subordinate Magistrate.
25. No reason has been given for this decision but it can well be supported on the ground that here the cook merely acted as an innocent conveyor of the money or as a post office. He had not demanded or accepted the money for the purpose of paying the same as a bribe to the Subordinate Magistrate, his employer with a view to corrupting him nor was he to get any reward or profit out of it. The facts of the present case, however are entirely different, for, here upon the accusations made the money was demanded and accepted for at least influencing the police officers to show favour to the accused in the murder case. This constituted an offence punishable under section 163, P. P. C., although on the same facts the offence of cheating was also made out.
26. He could be tried for both though punished only for one.
27. Had the contention of the learned counsel been correct that no case either under section 162 or section 163, P. P. C., has been made out upon the allegations contained in the F. I. R., the substance of the accusations stated under section 242, Cr. P. C., or the statement in Court of the D. S. P., then there could have been no manner of doubt that the offence under section 420 alone would not have been triable by a Special Judge under the Criminal Law Amendment Act, 1958. But since we have come to the conclusion that the allegations did prima facie disclose an offence under sections 162 and 163, no question of the quashment of the proceedings can arise, for, under subsection (7) of section 5 of the Pakistan Criminal Law Amendment Act, 1958 a Special Judge may also try an accused person for other offences, even though such offences be not exclusively triable by the Special Judge, if the offences are such as could have been jointly tried at the same trial under the Criminal Procedure Code.
28. The decision of a learned Single Judge of the Dacca High Court in the case of Jabid Ali v. The State relied upon in support of the contrary view cannot be any assistance to him, for, it has not taken into account the provisions of subsection (7) of section 5 of the Criminal Law Amendment Act, 1958.
29. It merely holds that a Special Judge cannot convict for a non-scheduled offence. In the case of Azizul Islam Chowdhury v. The State a Division Bench of the same High Court clearly pointed out that under subsection (7) of section 4 of the-earlier Criminal Law Amendment Act of 1948, the accused in fit cases could be tried even for non-scheduled offences along with a scheduled offence.
30. A similar view has been taken in the cases of Muzaqar Hussain Shah v. The State and Mukhtar Ahmad v. State by the West Pakistan High Court.
31. These decisions, in our opinion, take the correct view. The accused while being tried for a scheduled offence can also be tried for an offence which is not scheduled if the offences are such as could have been other wise jointly tried under the Criminal Procedure Code. But whether he can, in such event, be convicted only for a non-scheduled offence is a different question with which we are not concerned in the present case. We do not, therefore, propose to express any opinion on this latter question.
32. For the reasons given above, we are of the view that this was not a fit case which could have been quashed under section 561-A, Cr. P. C. This appeal must, accordingly, fill and is dismissed .
33. Let the records now go down immediately so that the trial can be concluded with expedition. 4 5 6 7 8 PLD 1961 Dacca 798 1 U B R 158 (1865) 3 W R 69 (1910) 8 I C 668 PLD 1964 Dacca 208 9 D L R 226 PLD 1962 Lah. 742 PLD 1965 Lah. 266