1. SHAHABUDDIN, J.-This is an appeal by special leave from the judgment and order of the High Court of West Pakistan, Lahore, by which the conviction under section 5(2) of the Prevention of Corruption Act, 1947 and a sentence of rigorous imprisonment for one year with a fine of Rs. 500 imposed on the appellant Mahk Siraj Din by the Special Judge, Lahore, were maintained and the appellant's appeal was dismissed.
2. Muhammad Sadiq, who had been convicted and sentenced to rigorous imprisonment for two years under section 376, P. P. C. And whose conviction was maintained though the sentence was reduced to one year in appeal, was ordered by the High Court on a revision petition filed against the judgment of the appellate Court to be released on bail on furnishing security to the satisfac-- tion of the District Magistrate, Lahore. His mother P. W. 7, then obtained the consent of P. W. 5 to stand surety and went with him to the office of the Deputy Commissioner, Lahore, where she met the appellant who was at the time the Reader of the Deputy Commissioner's Court as well as the officiating Head Vernacular Clerk. According to her evidence the appellant demanded a bribe of Rs. 5 for placing the papers relating to the bail before the District Magistrate, but she did not pay this amount at that time and in fact held out for several days with the result that no action was taken in the matter of letting her son on bail. At last on the 5th November 1953, P. W. 7 accom-- panied by P. W. 5 contacted a Sub-Inspector of the Anti-Corrup--tion Police who under the orders of the Additional District Magistrate produced her before P. W. 1- the Duty Magistrate and that officer recorded her statement and noted down the number of one-rupee notes she had brought to give them to the appellant. Thereafter on being informed that the notes were received by the appellant. P. W. 1 went up to him and recovered those notes from him. At that time in answer to the questions put by the witness, the appellant said that the notes had been given to him by one Mian Muhammad Sharif (D. W. 2) for being kept for him. The Magistrate did not record this as a statement from the appellant but noted it in the proceedings he drew up in respect of what occurred in his presence.
3. The version of the prosecution with regard to the main particulars of the demand for and the giving of the bribe was spoken to by P. W. 7, and the officers concerned stated the parts they had played in the incident. But P. W. 5 who was said to have been with P. W. 7 right through and was examined for supporting her version gave evidence in favour of the appellant in respect of several material particulars, and he was treated as hostile.
4. The case for the appellant was that P. W. 7 never met him but that P. W. 5 approached him in the matter and as the District Magistrate was not satisfied with the bail bond produced, he (the appellant) returned it to P. W. 5 for getting it attested by Muhammad Sharif lambardar (D. W. 2). He admitted that the one-rupee notes were recovered from him, but this explanation was that when he required change for a five-rupee note to pay the Muharrir two annas for the revenue stamp bought for the acquaintance roll, D. W. 2 who happened to be present there gave him those rupee- notes as change for a five-rupee note. He also pleaded that his reputation was good and that there was enmity between him and the Sub-Inspector of the Anti-Corruption --Department.
5. Witnesses were examined for the defence on these points. One of the principal defence witnesses was D. W. 2 who deposed that he gave the appellant the one rupee-notes he had received from P.
6. W.
5. But the evidence of P. W. 5, who did not support the prosecution in material particulars, was to the effect that after the Magistrate noted down the numbers of the currency notes produced by P.
7. W. 7 and returned them to her for being passed on to the appellant, she gave them to him (the witness) and he passed them on to D. W. 2 who said that be would give them to the appellant and get P. W. Ts work done, and that D. W. 2 accordingly gave those notes to the appellant.
8. After the recovery of the currency notes information was laid at the concerned thana and the case was investigated in due course. The Sub-Inspector in charge of the investigation obtained from the Deputy Commissioner, Lahore, sanction to prosecute the appellant, but by the time the charge- sheet was filed before the Magistrate the Criminal Law (Amendment) Act of 1953 under which cases of this kind became exclusively tribal by a Special Judge had come into force. The Magistrate however did not proceed with the case and it was transferred on 30th April 1954 to the Special Judge who returned the papers for the want of fresh sanction which according to Criminal Law (Amendment) Act had become necessary. Accordingly another. Order of sanction was passed by the Deputy Commissioner had that order was received with the records by the Special Judge, who then took cognizance of the ease on 20th September 1954. He accepted the version of P. W. 7 in preference to that of P. W. 5 and D. W.
2. He scrutinized the explanation given by the appellant for having been in possession of the currency notes in question and in reject--ing that explanation he observed that it was significant that when first questioned by the Duty Magistrate, who supervised the raid, the appellant had given a different version. The learned Judge of the High Court who heard the appeal also commented on the fact, but in both the Courts the explanation of the appellant that he received those one-rupee notes from D. W. 2 in exchange for a five-rupee note was considered on its merits and rejected. No objection to the sanction was taken in the trial Court, but the judgment of the High Court indicates that it was contended there that the trial had proceeded on the basis of the first sanction given under section 6 of Act II of 1947. But the learned Judge found that that was not so. He observed that it was clear that the Special Judge had proceeded on the second sanction. He then considered and rejected the objection to the second sanction which has been pressed before us viz. That it was invalid as the Deputy Commissioner was not competent to dismiss the appellant who was an officiating Head Vernacular Clerk. No other objection seems to have been-raised to the second sanction in the High Court.
9. The main contentions advanced by Mr. Brohi for the appellant before us were to the following effect. From the fact that the first sanction was exhibited and not the second it was clear that the trial proceeded on the basis of the first sanction which had become obsolete and therefore the learned Judge was not justified in regarding the second sanction as the basis of the prosecution. If the second sanction had been exhibited objection might have been taken on the ground that the Deputy Commis--sioner had not applied his mind to the facts before giving the sanction. In any case the Deputy Commissioner was not com--petent to dismiss the appellant.
10. PLD 1953 FC 189) it was held by this Court that it was not open to the defence if they objected to the validity or sufficiency of the sanction to raise in this Court an objection different from the one raised at the trial especially when the point raised here for the first time could have been melt by the production of a witness. As stated already, no objection was taken at the trial in respect of the sanction, and the objection raised in the High Court was not that the Deputy Commissioner had not applied his mind to the facts of the case before according sanction. Had such an objection been taken the Deputy Commissioner might have been examined. It appears to us that this objection is only an afterthought. In the second sanction it is definitely stated that the Deputy Commissioner examined and considered the material evidence, and we see no doubt in this statement.
11. As regards the competency of Deputy Commissioner to accord the sanction it is clear from the evidence of D. W. 9 for whom the appellant officiated as Head Vernacular Clerk that the period, during which he so officiated was three months from 15th October 1953. Therefore on the day of the second sanction i.e., 3rd September 1954, he was not an officiating Head Verna--cular Clerk but only a Reader, and it was not disputed that a Deputy Commissioner could appoint and dismiss a Reader. The learned Judge of the High Court has pointed out that under section 11 of the Criminal Law (Amendment) Act of 1948 as amended in 1953 the appropriate Government is empowered to make rules authorizing persons to exercise power of sanction on behalf of that Government, and that under those powers the Punjab Government notified on 2nd August 1954 that an authority having power to dismiss a public servant will be competent to sanction his prosecution on behalf of Government. As stated already the second sanction was given by the Deputy Commissioner on 3rd September 1954. No objection was raised before us in respect of these observations of the learned Judge.
12. But Mr. Brohi raised a point which had not been raised in the Courts below or in the petition for special leave to appeal or even in the concise statement viz. That the evidence of P. W. 1 the Duty Magistrate that the appellant when questioned told him that the rupee-notes had been given to him by D. W. 2 for being kept for him should not have been taken into consideration as it was a statement coming under section 164 and it was not recorded as prescribed under section 364, Cr.
13. P. C. The conten--tion was that as the Courts below attached importance to the discrepancy between that statement and the one made by the appellant at the trial, the admission of the evidence of P. W. 1 in this respect had caused prejudice to the appellant. But this point again should have been raised at the trial so that it could be determined as to when exactly the investigation of the offence for which the appellant was charged had started. From the facts before us it appears that the investigation of the offence in respect of which, charge-sheet was filed commenced after the appellant made the statement in question. However, even if that statement is left out of consideration, his version at the trial v as rejected by the Courts below after scrutiny and it is clear that apart from the discrepancy between the statements there is sufficient evidence to sustain the conviction.
14. We can, therefore, see no ground for interference by this Court. The appeal is dismissed.