The appellant Fahmid-uz-Zafar was convicted on 31st March, 1980 by the Special Judge (Central), Karachi under section 162, P.P.C. And sentenced to R.I. For three months and a pay fine of Rs. 100 or in default to undergo R.I. For one month more.
2. Being aggrieved he filed this, appeal.
The relevant facts are that complainant Daras Khan wanted to go Behrain for which he obtained passport and visa but he was in need of clearance from the Office of Protector of Emigration. On 5- 5-1977 he went to the Office of Protector of Emigration where he met the appellant, who told him that he can arrange his clearance on payment of illegal gratification of Rs.200. The complainant went and lodged report with F.I.A. Police and trap was arranged. In presence of two Mashirs namely Amir Rehman's and Munawar Ali a Mashirnama Exh.5 about the tainted money was' prepared and amount was given to the complainant. The complainant and two Mashirs alongwith police party went to the place near the Office of Protector of Emigration where appellant was standing. In presence of two Mashirs 86.200 as tainted money alongwith passport and other papers were handed over to the appellant, who acknowledged the chit and told him that he can collect the documents on the address given in the said chit. F. I. A. Police came and secured the tainted money, passport and other documents its presence of Mashirs and prepared the Mashirnama Exh.15 and arrested the appellant. The challan of the case was sent up in the Court of Special Judge (Central) Karachi under section 162, P.P.C. On 19-7-1979. The charge under section 162, P.P.C. Was framed on 28-7-1979 and read over to appellant to which he pleaded not guilty.
3. The prosecution in support of his case examined complainant Daras Khan Exh.7, Amir Rehman's Exh.14, Abdul--Sattar Shaikh Exh. 35, and Atta Muhammad Exh.38.
4. The appellant in his statement under section 342, Cr.P.C. Exh.43 has denied having demanded or accepted Rs.200 as illegal gratification but stated that complainant had- given him Rs.200 for booking his Air ticket from Karachi to Behrain. He also admitted that he gave a chit to the complainant for the purpose of collecting Air ticket on the said address. He further admitted that he had taken Rs.200 and Rs.150 from Bazid Khan and. Abdul Rehman's for the said purpose and also given two chits Exhs.30 and 31 to them showing his address. He has denied to have taken documents from those persons.
5. The evidence against the appellant is that of Daraz Khan who has fully supported the F.I.R. Exh.4.
P.R Amir Rehman's Exh.14 is a Mashir. He has also supported the case of prosecution and stated that in his presence the tainted money and documents were secured from the appellant. He has also deposed that two other persons namely Malik Abdul Rehman's and Bazid Khan were standing with passports and appellant received money and documents from them and also acknowledged the chits. P.W.3 Abdul Sattar Exh.35 was Inspector of F.I.A. Crime Circle-1 Karachi. He registered the F.I.R.
Of the case on 5-5-1977 Exh.4 and he went alongwith complainant and Mashirs. He searched the appellant and found tainted money and other documents. He has partly investigated the case and handed over the papers to his successor. He deposed that on 19-7-1979 Mr. Masood Assistant Director of F.I.A. Karachi produced the challan of this case. P.W.4 Atta Muhammad Exh.3F recorded the confession of appellant on 6-5-1977. He produced confession, as Exh.
39. The appellant led no evidence in his, defence.
6. The Advocate for the appellant was absent on 20-1-1986. Mr. A.Q. Halepota who was present in Court was asked to address the Court on the legal point whether appellant who is not a public servant could be tried independently in the cases of the schedule offence.
I also heard Mr. Hayat Qureshi, Advocate for the State, who supports the appeal.
7. I have gone through the evidence. The appellant has admitted to have received money from complainant Daraz Khan but stated that this amount was paid to him for getting Air ticket for Behrain. He has also given confession. The other two witnesses namely Abdul Rehman's and Bazid Khan have not been examined by the prosecution. The trap was not supervised by any Magistrate.
The most important point in this case is that whether Special Judge was authorised to try the appellant for the offences which are specified in the schedule to the Pakistan Criminal Law (Amendment) Act, 1958. The offence under section 162, P.P.C. Is one of these offences. On this point it is necessary to refer to the provisions of Act and schedule thereto. Section 4 of the Act provides that the Special Judge appointed under the Act may take cognizance of-any offence committed or deemed to have been committed within the limits of his jurisdiction which are triable under the Act. Section 5(1) of the Act is as follows:- "5. Offences to be tried by Special Judges:-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge."
The Schedule to the Act is divided into three parts. Part (a) specifies the offences under sections 161 to 166, 168, 217 and 218 of the P.P.C. As triable by the Special Judge. Part (c), specifies the offences punishable under the Prevention of Corruption Act (II of 1947) sand attempts, abetments and conspiracies in relation thereto car connected therewith as offences of which the Special Judge could take cognizance. Part (b) is as under:--- "(b) Offences punishable under sections 403 to 409 417 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith -when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such. The offence under section 162, P.P.C. Is triable by the Special Judge. But the learned counsel emphasised the words "when committed by any public servant as such or by .Any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such". It was contender that an offence under section 162, P.P.C. Is a schedule offence Special Judge can try the accused when it fulfils the condition prescribed by Part (a) of the Schedule. The conditions being (i)the offence should have been committed by a public servant, (ii)if the offence is committed by any other person, then this person must have acted jointly with or must have abetted or attempted to abet, or acted in conspiracy with, the public servant."
It is clear that the learned Special Judge can try a public servant or any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such. In this case appellant admittedly is not a public servant and has been tried independently. He has not been charged for abetment or conspiracy. The charge framed by the learned Special Judge reads as follows:- "That you obtained from Daraz Khan Malik Abdul Rehman's, Bazid Khan for Sardar Khan, Clerk Office of the Protector of Emigration, Karachi gratificatively as motive Rs.200, Rs.150 respectively as a motive or reward for inducing by corrupt or illegal means clear Sardar Khan a public servant with the Federal Government to do an official act viz. For getting no objection endorsement on the passports of Daraz Khan, Malik Abdul Rehman's and Bazid Khan and thereby committed an offence punishable under section 162, P.P.C. And within my cognizance.
And I hereby direct that you be tried by me on the aforesaid charges.
This 28th day of July, 1979.
The allegation as shown in the charge is that he accepted illegal gratification for one Sardar Khan, who was a Clerk (a public servant) in the Federal Government but in this case Sardar Khan has not been challaned. Under the Schedule offences the person can only be tried, if the offence is committed by any other person, then this person must have acted jointly with or must have abetted or attempted to abet, or acted in conspiracy with, the public servant.
The legal point argued by Mr. A.Q. Halepota, Advocate has got force about the jurisdiction of Special Judge. The provisions of section 6(4) of the Criminal Law Amendment, 1958 do not state that any Special Judge has jurisdiction to convict the accused of any offence under Pakistan Penal Code other than the offence specified in the Schedule to the Act. Consequently the Special Judge can only convict the accused of any offence specified in the Schedule.
The appellant has not abetted or acted jointly or in conspiracy with any public servant nor there is anything on the record that he in conspired with Sardar Khan Clerk and committed an offence. I am of the view, that in these circumstances the Special Judge had nor jurisdiction to try and convict the appellant under this section.
On the above legal point I am supported by a case of Sayeed Hai v. The State reported in PLD 1967 Kar. 768. For these reasons the conviction of appellant cannot be sustained. I would, therefore accept this appeal and acquit the appellant. He is on bail. His bail bonds are cancelled.
The next question arises if retrial of the appellant should be ordered. The offence is alleged to have been committed in 1977 and challan was sent up in 1979 and the appeal is being heard in 1986. The case is old one. In my view, appellant's case is not a fit case for retrial.