Summary: (a) Penal Code (XLV oaf 1860)- -S.161-Prevention of Corruption Act (II of 1947), S.5-Sentence, quantum of-Benefit of doubt-Practice of awarding nominal punishment to corrupt officials does not create healthy impression-Undue leniency to culprits not desirable-Accused convicted under S.161, P.P.C. and was sentenced to three years' rigorous imprisonment-Sentence reduced by High Court to 20 days' imprisonment already undergone, grounds for reduction being that period of about three years had passed since occurrence; accused had suffered agony of trial; had lost his service and had remained in jail for about 20 days after his conviction-Appeal for enhancement of sentence on the plea that in order to eliminate corruption which had become rampant in the country, it was necessary that corrupt officials be awarded deterrent punishment-Offence being proved beyond reasonable doubt, no leniency, held, would be shown to culprits-Sentence was enhanced to three years and that of fine awarded by Trial Court also maintained. In the present case the reasons for reduction in sentence of imprisonment recorded by the High Court were- (i) that about 3 years have passed since the occurrence had taken place; (ii) that the appellant had suffered the agony of trial; (iii) that he had lost his service; and (iv) that he had remained in jail for about 20 days after his conviction. Corruption has become rampant in the country, and to meet the situation it is necessary that corrupt officials should be dealt with an iron hand and deterrent punishment should be awarded to them in order to discourage other civil servants from demanding and accepting bribes. There is public outcry against corruption from all quarters and there is great dismay that nothing is being done to stem it. Although the legislature has, of course, made laws to punish corrupt officials, but in the first place, the public at large considers it far easier to pay illegal gratification to get their work done. Secondly persons from whom bribe is demanded do not dare to report the matter and go through the worry of an investigation by the police and thereafter be pushed from Court to Court, as the experience is known to be so agonizing that it deters others from repeating the performance. People who are daring enough to report the matter, hardly ever get anything except incurring the hostility of the concerned public functionaries. And even if after going through the turmoil of lengthy and tedious Court proceedings they are able to prove the guilt of the concerned officials, the accused is invariably let off with nominal punishment, as in the present case. Why should then a citizen take the risk and hazard of going to the authorities for reporting such matters. The practice of awarding nominal punishment to corrupt officials does not create a healthy impression. Courts rightly give benefit of doubt to the accused whenever there is the reasonable apprehension in their mind that the accused person might have been falsely involved, and are justified in acquitting such persons. But once the Court finds that the offence has been proved against the accused beyond reasonable doubt and convicts him of that offence, then there is no reason whatsoever of showing the culprit any leniency on the kind of grounds given by the High Court for reduction of the sentence of the accused as in the present case; because, it is hardly conducive to give an impression that the Courts are more concerned with the welfare of the accused' rather-than that of the society. The grounds recorded by the High Court for reducing the sentence of accused were wholly untenable. Muhammad Amin v. The State P L D 1984 S C 343' ref. (b) Constitution of Pakistan (1973)- -Art.188-Supreme Court Rules, 1980, O.XXVI, R.1-Review-Error apparent on face of record-Review allowed and judgment of Supreme Court recalled and two appeals re-heard together.

Summary: Constitution of Pakistan (1973)- -Art. 185(3)-Penal Code (XLV of 1860), S. 161-Prevention of Corruption Act (II of 1947), S. 5(2)-Criminal Procedure Code (V of 1898), S. 35-Sentences-Consecutive-Petitioner convicted and sentenced under S. 161, P.P.C. and S. 5(2) of Act (II of 1947), with direction that sentences would run consecutively-Leave to appeal granted to consider contention that direction of Trial Court as confirmed by High Court that two sentences would run consecutively was not in accordance with law. Akhtar Hassan Khan v. The State 1974 S C M R 199 and Niaz Ail v. The State P L D 1961 Lah.269.

Summary: Penal Code (XLV of 1860)- -S. 161 read with Prevention of Corruption Act (II of 1947), S. 5(2)Bribery - [Trap-case] - Accused caught red-handed by trap party but accused stating money found in his possession having been advanced to him by informer by way, of loan-No enmity existing between informer and accused and informer having recently constructed quarters genuinely in need of electric connection and such duty lying within scope of accused's duties-Guilt of accused on charge under S. 161, P. P. C. based on very cogent evidence produced by prosecution and defence plea rightly rejected-Charge under S. 161, having been proved beyond doubt, part of judgment of trial Court acquitting accused petitioner on charge under S. 5(2) of Prevention of Corruption Act, 1947, held, irrelevant and in any case, does not whittle down weight of prosecution case.

Summary: Civil Service Rules (Punjab), Vol. I, Part I- -R. 7.3 read with Government Servants (Efficiency and Discipline) Rules, 1973, r. 9(a) - Removal from service-Petitioner convicted and sentenced under S. 161., P. P. C. read with S. 5(2), Prevention of Corruption Act (II of 1947), given benefit of doubt and acquitted by High Court in appeal-Whether r. 7.3(a) of C. S. R. (Punjab), Vol. 1, Part 1 could be pressed into service by Department for upholding removal from service-Question raised purely of law and its application to facts of case requiring authoritative interpretation-Leave to appeal granted.-[Civil service].

Summary: (a) Criminal Procedure Code (V of 1898), S. 157 read with Penal Code (XLV of 1860), S. 161 and Prevention of Corruption Act (II of 1947), S. 5(7) - Registration and investigation of case of cognizable offence-Police Officer receiving written complaint containing information of commission of offence under S. 161, P. P. C. and S. 5(7), Prevention of Corruption Act, 1947Bound to register case-Police Officer although can refuse investigation under S. 157(1)(b), Cr. P. C. yet in obedience to S. 157(2) must record his reasons for such refusal and also notify his refusal to informant. On receipt of a written complaint from the petitioner alleging that an A. S. I. of Police had taken Rs. 100 from him under threat of opening history sheet against him, the Police Officer, without registering a case properly made oral inquiry on the spot and finding the complaint as baseless prosecuted the petitioner under S. 182, P. P. C. Held, it was obligatory on the Police Officer to have registered a case on receipt of the information contained in the application received by him. However, it was not incumbent upon the Police Officer to have investigated the offences if in view of section 157(1)(b) it appeared to him that there was no sufficient ground for entering on an investigation. But even in that case Police Officer in obedience to the provisions of section 157(2), Cr. P. C. had to state in a report his reasons for not fully complying with the re4uirements of subsection (1)(b) of section 157 and must have forthwith notified the informant the fact that he will not investigate the case, or cause it to be investigated. Subsection (1) of section 4, Cr. P. C. defines investigation to include "all the proceedings under this Code for the collection of evidence conducted by a police officer………..". The expression `collection of evidence conducted by a police officer' in this section of the Code is a short way of saying, `collection of material to be used as evidence conducted by a police officer'. It was incumbent on Police Officer that on receipt of information of the commission of offences under section 161, P. P. C. and section 5(7) of the Prevention of Corruption Act, 1947, contained in the petitioner's application to have registered a case of criminal charge against the official complained against. Although he could have refused to investigate the same but it was obligatory on him to have notified his refusal to the informant, say petitioner, and further that he should have entered the information in the station diary. Non-compliance of these legal provisions, has caused prejudice to the petitioner. Nazir Ahmad v. King-Emperor A I R 1936 P C 253 (2); Ghulam Abbas v. The State P L D 1968 Lah: 101; Re: Shark Kalesha A I R 1957 And. Prad. 268; Re: A. F. G. Price v. Emperor A I R 1937 Lah. 160; H. N. Rishbud and another v. State of Delhi A I R 1955 S C 196 and The State of Madhya Pradesh v. Mubarak Ali A I R 1959 S C 707 ref. (b) Criminal Procedure Code (V of 1898), Ss. 244(1) & 342-Section 342 applicable to warrant case as well as to summons case-Non-hearing of accused in summons case after close of prosecution evidence and before examination of defence evidence-Illegality fatal to trial-[Re: Ponnuswami Odayar and others v. Ramasami Thathan A I R 1924 Mad. 15; Emperor v. Nga La Gyi and another A I R 1931 Rang. 244; Kale Khan and others v. King-Emperor A I R 1927 Lah. 268 and Shadi Khan v. Mst. Gul Begum A I R 1927 Lah. 435(1) dissented from]. Where the accused facing trial under section 182, P. P. C. was not given an opportunity of being heard by the Magistrate under section 244(1), Cr. P. C. after close of prosecution evidence and before recording the defence evidence it was held that the general trend of opinion of all other Courts is that this section 342 applies equally to summons cases as well as to warrant cases and that the words"if he thinks fit" in section 245 have reference to cases in which the Magistrate is prepared to acquit the accused, even on a consideration of the prosecution evidence as it stands, without calling on the accused for his defence and without hearing him. By-passing the stage of hearing the accused and rushing to ask him to enter upon his defence is illegality not of a trivial kind. Thus the non-hearing of the accused-petitioner under section 244, Cr. P. C. after the close of the prosecution evidence and before the examination of the defence evidence, which is mandatory, by the trial Court, has resulted in miscarriage of justice which is fatal to the trial of the petitioner in a summons case. Re: Qazi and Khatib Mohamud Khan v. Emperor A I R 1945 Nag. 127; Gulabjan v. Emperor, A I R 1922 Bom. 290; Mastan Singh and another v. The State A I R 1953 Papsu 125; Emperor v. Janardhan Kashirath A I R 1931 Born. 195 and Emperor v. Nabu A I R 1926 Sind 1(2) rel. Re: Ponnuswami Odayar and others v. Ramasami Thathan A I R 1924 Mad. l5; Emperor v. Nga La Gyi and another A I R 1931 Rang. 244; Kale Khan and others v. King-Emperor A I R 1927 Lah. 268 and Shadi Khan v. Mst. Gul Begum A I R 1927 Lah. 435(1) dissented from. N. M. Khan for the State.

Summary: Penal Code (XLV of 1860), S. 161-Prevention of Corruption Act (II of 1947), S. 5 (2)-"Demanding"illegal gratification constitutes"attempt"to commit offence-No question of locus penitentiae. Under section 161 of the Pakistan Penal Code and the corresponding section 5 (2) of the Prevention of Corruption Act, 1947, attempts to obtain any gratification whatever, other than legal remuneration, by a public servant is as much an offence under those sections as actual acceptance or receipt of a bribe. No question of locus penitentiae arises in such cases. Where the accused, who was a serishtedar of a Magistrate's Court attempted to receive bribe and in order to get it he put pressure on the complainant by refusing to number and seal the release orders of the complainant's party and his attempt would have succeeded, but for the circumstance that the complainant had not sufficient money on his person and could not succeed in collecting the sum which would satisfy the accused. Held, that the offence of"attempt" under S. 161, P. P. C. was complete:

Summary: (a) Pakistan Criminal Law (Amendment) Act (XIX of 1948) (before amendment of 1953)- Ss. 3 and 4-Do not oust jurisdiction of ordinary Criminal Courts. There is no indication, in section 3 of the Pakistan Criminal Law (Amendment) Act (XIX of 1948) as it stood in 1952 before the amending Act of 1953, of exclusiveness i.e., of any special provision worded so as to exclude the jurisdiction of the ordinary Courts. The provisions of section 4 cannot serve to sustain any conclusion that, as they stood in 1952, they were intended to give a Special Judge appointed under the Pakistan Criminal Law (Amendment) Act, 1948, exclusive jurisdiction in relation to offences, committed by Central Government servants, of the kind specified in the schedule to the Act. Trial held before; the amending Act of 1953, by a Special Magistrate under section 161, P. P C. was therefore not without jurisdiction. (b) Investigation-Irregular-Whether affects jurisdiction of Magistrate or validity of proceedings in Court. The investigation in a case under section 161, P. P. C. committed by a Central Government servant was held by an Inspector of the Sind Anti-Corruption Police instead of, as maintained by the defence, by the Special Police Establishment. It was objected that the trial was bad for that reason. Held, that it is by no means clear that even if it could be established that the investigation by the Sind Anti-Corruption Inspector was irregular, the result would be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the proceedings in the trial. (c) Pakistan Special Police Establishment Ordinance (VIII of 1948)- Ss. 2 (2) and 3-Investigation held by a Sind Anti Corruption Inspector into an offence under S. 161, P. P. C. committed by a Central Government employee, held, regular. (d) Acquittal-Appeal against by Crown before Federal Court-Intention of Crown to test the correctness of view of acquitting Court (Chief Court of Sind) on point of law, and not to get a conviction-Respondent, nevertheless convicted. Under Order XLIX, rule 1, F. C. R. 1950: Faiyaz Ali, Advocate-General of Pakistan.

Summary: (a) Sanction-Appellate Court's finding that sanction was defective-Findings on merits would be without jurisdiction. If the finding of the Sessions Judge that the sanctions were defective was correct, his findings on the merits of the case would be entirely without jurisdiction. (b) Sanction-For trial under S. 161, P. P. C.-. Accused convicted under S. 5 Prevention of Corruption Act (II of 1947) as amended by Act IX of 1950-Sanction held not defective Section 161, P. P. C. not impliedly repealed by S. 5 of Prevention:x of Corruption Act-General Clauses Act (X of 1897), S. 26. Sanction was granted for trial of accused under S. 161 P. P. C., but he was convicted under section 5, Prevention of Corruption Act (II of 1947). Held: Non-mention of S. 5 Prevention of Corruption Act (II of 1947) in the sanction could not prevent the accused being convicted under section 5 of the Prevention of Corruption Act, 1947, because the facts constituted one offence as much as they did the other and neither of these offences has an ingredient which the other does not have. If, sanctioning authority had merely mentioned the facts without specifying the provision of law which was applicable to those facts, the sanctions would not have suffered from any fatal defect. Section 26 of the General Clauses Act (X of 1897) militates against the rule of implied repeal and section 161, P. P. C. was not impliedly repealed by section 5 of Prevention of Corruption Act (II of 1947) as amended by Act IX of 1950. Barindra Kumar Ghose v. Emperor 11 Cr. L J 453 and The State v. Gurcharan Singh A I R 1952 Pb. 89 distinguished. The Crown v. Baba Khan P L R 1953 Lah. 163-P L D 1952 Lah. 472 and Abdul Latif v. The Crown P L D 1952 Lah. 647 ref. Sardar Muhammad Iqbal and M. B. Zaman, for Respondent.

Summary: Criminal Procedure Code (V of 1898)- - S. 197-Public Servant offering bribe-Whether sanction necessary for prosecution-Prosecution under Ss. 116 and 161 P. P. C. in effect a prosecution for offering a bribe-Criterion for decision. Held, that section 161 of the P. P. C., is the offence of a public servant either accepting or obtaining or agreeing to accept or attempting to obtain from any person for himself or for any other person, any gratification as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or dis-favour to any person, or for rendering or attempting to render any service or disservice to any person. A prosecution under section 116/161 P. P.C., is in effect a prosecution for offering a bribe and by no stretch of imagination can it possibly be claimed on his behalf that when he demands a bribe, be does so in virtue of his office. A fortiori a public servant can certainly be prosecuted for offering a bribe without any sanction under section 197 of the Code of Criminal Procedure. H. H. B. Gill v. The King Emperor 52 C W N 567 ref. Md. A. Hye for the Crown.

Summary: (a) Criminal Procedure Code (V of 1898), S. 197-Offence under S. 161 P. P. C.-Sanction not necessary. When leave to appeal was granted to the appellants it was still an open question whether sanction under section 197 of the Criminal Procedure Code via; necessary before a public servant could be prosecuted for an offence under section 161 of the Indian Penal Code. It has now been settled that sanction is r not necessary and accordingly the appellants cannot succeed on the grounds of appeal set out in their petitions for leave to appeal. Gill v. The King 75 I A 41 rel. (b) Non-cognizable case - Magistrate authorising police to investigate but failing to comply with requirements of S. 202 (7). Cr. P. C. - Such fault in procedure will not deprive Magistrate of his jurisdiction to try appellants.