1. ' Allegation against the respondents Nos.1 to 3, the first of whom is the Municipal Commissioner, Sukkur Municipal Corporation and the remaining Inspectors working under the same Corporation, is that, essentially, in relation to filing a suit against the first of such respondents by the petitioners the three respondents raided the shops of the petitioners on 2-11-1994 and, extending threats of arrests and detentions, looted certain merchandise displayed at such shops, which aggregate in value somewhere near Rs,30,000. Upon pleas that an offence under section 394, P.P.C. Read with section 5(1) of the Prevention of Corruption Act, II of 1947, was made out an F.I.R. Was sought to be registered but was refused. Resultantly, this Constitutional petition was preferred on 3-11-1994 and has since been pending, largely on account of a defence that a serious question of law arises herein namely, whether the aforesaid act of the three respondents constitutes an offence under section 5(1)(d) of the Prevention of Corruption Act, 1947.
2. ' Mr. S. Ali Aslam Jafferi was appointed as amicus curiae by us in the case and has cited Ram Krishan and another v. The State of Delhi PLD 1957 SC (Ind.)
56. In such case the facts were somewhat different but the rule deduced was that as compared to the liability of a civil servant under sections 161, 162 and 163 of the Penal Code, where motive or reward were relevant for doing or for hearing to do something or for showing favour or disfavour to any person or for inducing such conduct it was not necessary for an offence under clause (d) to prove all this. We agree with this proposition but would also like to make an added analysis of the legal position on the subject.
3. ' Section 5(1) of the Prevention of Corruption Act, 1947; runs thus:-- "5. Criminal misconduct---(1) A public servant is said to commit the offence of criminal misconduct.--
(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratificAtion (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or
(b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to, be inadequate, from any person whom he knows to ha',.. Been, or to be, likely concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or
(e) if he, or any of his dependents, is in possession, for which the public servant cannot reasonably account, of pecuniary resources or of property disproportionate to his known sources of income."
4. ' It will at once be seen that in clauses (b) and (d) of subsection (1) of section 5 the words "obtains for himself or for any other person any valuable thing" are common. It will further be seen that whereas in clause (b) elements of consideration, motive, volition etc. Figure expressly such is not the case with clause (d) of the same subsection and for the purposes of that clause all that is necessary to show is that the person concerned, enjoying the position and status of a public servant and employing corrupt or illegal means or otherwise by abusing his position as public servant, has obtained for himself or for any other person any valuable thing or pecuniary advantage. This may be done with the consent of the person(s) affected or by force and such may or may not confer any corresponding advantage to the person, who thereby stands deprived since all that is required is that the result should have come about by use of corrupt or illegal means or by otherwise abusing of official position as a civil servant. Thus, in an extreme case, such as that before us, the official concerned may be equally guilty of an offence under the clause even though he may have also transgressed or breached independent postulates of the penal law and virtually committed something, which may not fall short of robbery or dacoity itself. The penalty in clause
(d) would arise because the same offence shall have been shown to be facilitated by misuse of official position or status. Thus, it is a common place allegation in these parts that police personnel, when raiding households, apparently looking for culprits, also in the bargain make away with valuables falling in their path. Such matters should equally attract the mischief of the foregoing clause (d) as falling within the ambit of the word "obtain" occurring therein.
5. Coming to the facts of this case, as said time and again, it is not for us in a petition seeking to get an F.I.R. Registered to determine whether the offence was or was not committed in actual fact for all that we have to see is whether, on the allegations leveled a prima facie case for the commission of such offence was made out. If so, the next question to be considered would be whether the relevant official competent to register the F.I.R. Was duly approached and did or did not exercise his independent mind to proceed according to law in the matter. If the answer to the first question be in the affirmative and second in the negative this Court has the jurisdiction, though only a discretionary one, to A interfere and grant relief under Article 199 of the Constitution, requiring the officer competent relative to recording of F.I.Rs, under section 154, Cr.P.C. To do that which he was required by law to do, which he had failed to do.
6. ' In the instant case, the petitioners have not been putting in appearances during the last few hearings and, therefore, we are not called upon to exercise our powers in terms of the afore- quoted Constitutional provision. We have discussed the applicable legal position solely to examine the basic ingredients of the controversy and would leave the petitioners to file a direct complaint before the competent Court, if so advised.
7. ' The petition itself is disposed of but with no order as to costs.