' ASLAM RIAZ HUSSAIN, J.-This petition by Riazul Haq is directed against the judgment of the High Court dated 19-2-1985, accepting respondent's Writ Petition (No, 680/84).
2. Facts giving rise to the present petition, briefly, are that Riazul Haq petitioner, Khushi Muhammad, respondents Nos. 1 and 2 others contested the election in 1983 to a seat in the Municipal Committee, Okara, from Ward No,
5. During the polls 259 men and 242 women voted in favour of Riazul. Haq. Out of these 2 votes were discarded as invalid leaving a total of 499 votes in his favour.
As against this 267 men and 232 women voted in favour of Khushi Muhammad respondent No,
1. As such total votes cast in his favour were also 499. The Returning Officer is, however, stated to have opened the packet of the 'tendered' ballot papers and declared one of the votes cast in favour of Khushi Muhammad respondent as valid, with the result that he was found, to have secured one vote more than the petitioner and was therefore declared to be successful.
3. Feeling aggrieved Riazul Haq petitioner challenged the respondent's election through an Election Petition. The Election Tribunal, after due inquiry into the matter, held that since both the candidates had secured equal votes (i,e, 499 each) and that the Returning Officer should have proceeded to draw lots as provided by rule 40(7) of the Punjab Local Government Election Rules, 1979. It then remanded the case to the Returning Officer for drawing of lots.
' It may be mentioned that the petitioner had also taken a number of other objections in his election petition but his learned counsel states that after the Election Tribunal had reached the above-noted conclusion he (the counsel) gave up the other objections.
4. On remand the Returning Officer proceeded with the drawing of lots, which turned up in petitioner's favour, who was therefore declared as successful. Khushi Muhammad respondent, however, challenged the result through a writ petition and also filed an Election Petition. Hs election petition was dismissed on 16-3-1984, while his writ petition was accepted by the High Court vide the impugned judgment dated 15-4-1984, on the ground that after giviug the finding that both the candidates had obtained equal number of votes, the learned Election Tribunal should have itself proceeded to draw lots as provided by rule 16(1) of the Punjab Local Councils (Election Petition)
Rules, 1979. As a result the drawing of lots by the Returning Officer under rule 40(7) of the Punjab Local Councils (Election) Rules, 1979 and declaration of the petitioner as successful candidate was held by the High Court to be without lawful authority and of no legal effect, and the Election Tribunal was directed to draw the lots itself.
' Feeling aggrieved the petitioner has filed the present petition for leave to appeal.
5. We have heard the learned counsel for the petitioner at length and have gone through the impugned judgment.
6. The petitioner's counsel urged that Khushi Muhammad having taken part in the lots before the Returning Officer should not be heard to say that lots should have been drawn by the Election Tribunal itself. He also urged that the Election Tribunal had rightly directed the Returning Officer to draw lots as, primarily, it was the duty of the Returning Officer under rule 40(7) of the Punjab Local Councils (Election) Rules, 1979.
7. We are not inclined to agree with this contention. The participation of the respondent in the drawing of lots by the Returning Officer did not confer any jurisdiction on the latter and we are of the view that the High Court was justified in holding that this exercise by the Returning Officer was illegal and without lawful authority.
8. It would be noticed that rule 40(7), which provides for the declaration of the result by the 'Returning Officer' by drawing of lots, occurs in the Punjab Local Government (Election) Rules, 1979.
These rules deal with the procedure to be followed for the conduct of elections, from the stage of supply of electoral rolls and filing of nomination papers up to the stage of declaration of results and taking oath by the members.
' On the other hand rule 16(1), which deals with the powers of the 'Reelection Tribunal to declare the result of an election to a seat, by drawing of lots, occurs in the Punjab Local Councils (Election Petition) Rules, 1979. These rules deal with the subsequent stage, which begins after the results have been declared and provide for filing of election petitions before the Election Tribunals constituted under section 25 of the Punjab Local Government Ordinance, 1979, as also the procedure to be followed by the Election Tribunals in deciding such petitions.
Rule 16(1) reads as follows :- "16. Decision in case of equality of votes.-(l) Where after the conclusion of the trial, it appears that there is an equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Tribunal shall draw a lot in respect of such candidates and the candidate on whom the lot falls shall be deemed to have received the highest number of votes entitling him to be declared elected."'
(Note.-Underlining is ours).
The use of the word 'shall' in this rule makes it amply clear that it is mandatory for the Election Tribunal to itself draw lots when both candidates are found to have secured equal number of votes.
As such the High Court has rightly held that the order of the Election Tribunal remanding the case to the Returning Officer for drawing of lots was without lawful authority.
' In view of the above discussion we find no force in the petition, which is consequently dismissed.
PLD 1985 Supreme Court 225 Aslam Riaz Hussain and Shafiur Rahman, JJ MUHAMMAD RA FIQ-Petitioner versus THE STATE-Respondent Criminal Petition for Special Leave to Appeal No, 55 of 1985, decided on 26th February, 1985.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 23-12-1984, in Criminal Appeal No, 1050 of 1980).
(a) Penal Code (XLV of 1860)- -- Ss. 162 & 163-Private person taking 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 person from whom bribe is received, held, punishable under Ss. 162 and 163, P. P. C.-Prevention of Corruption Act (II of 1947), Ss. 5(1)(2) & 9.
[p. 227]A Syed Ziaul Hassan Zaidi v. The State 1971 P Cr. L J 1056 and Bukhsh v. The State 1976 P Cr. L J 361 distinguished. *Mere is italics)
(b) Prevention of Corruption Act (II of 1947)- ------ Preamble & S. 5(1)(2)-Object of Act-Offences under Act are contained in S. 5(1) and only relate to demand or acceptance of bribe by public servants and are punishable under S. 5(2).- Interpretation of statutes]. [p. 227]8
(c) Pakistan Criminal Law Amendment Act (XL of 1958)- - - Preamble, Ss. 2(b), 3, 5(1) & Sched. (a) & (c)-Penal Code (XLV of 1860), Ss. 161 to 166 -Prevention of Corruption Act (II of 1947), S. 5-Object and Scope of Act, 1958-"Public servant"- DefinitionAppointment of Special Judge to try offences punishable specified in Schedule to Act 1958-All offences specified in Schedule to Act 1958 to be tried exclusively by a Special Judge notwithstanding anything contained in Criminal Procedure Code, 1898 or any other Law-Schedule to Act, 1958 includes offences punishable, inter alia, under Ss. 161 to 166, P. P. C. And offence punishable under Prevention of Corruption Act. 1947 and attempts and abetments and conspiracies.-[Words and phrases-Intetpretation of statutes].
(d) Pakistan Criminal Law Amendment Act (XL of 1958)- [p. 227]C -- S. 5(1) & Sched.-Penal Code (XLV of 1860), S. 162-Offence under S. 162, P. P. C. Though not committed by a public servant, held, was exclusively triable by a Special Judge Anti-Corruption.
[p. 228]D Talib H. Rizvi, Advocate Supreme Court and S. Ali Imam Naqvi, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing : 26th February, 1985.
' 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 for 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 162, P. P. C. And sentenced him to one year R. L, vide his judgment dated 28-9-1980.
The petitioner then filed an appeal in the High Court, which was dismissed ride 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 (1) and Wahid Bukhsh v. The State (2), 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 offences 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 show 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
(1) 1971 P Cr. L J 105n (2) 1976 P Cr. L J 361 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 either 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), along with 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, Anti-Corruption. 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.