AKHTAR HASSAN KHAN Versus STATE

1. SALAHUDDIN AHMED, J .‑This appeal by special leave is from the order of the erstwhile High Court of West Pakistan, Lahore Seat, dismissing the appellant's appeal from his conviction and sentence, under section 161 of the Pakistan‑Penal Code‑.read with section 5(2) of the Prevention of Corruption Act, 194'7, and allowing the revisional application of the State and enhancing the sentence of the appellant under the aforesaid sections of imprisonment till the rising of the Court to three years rigorous imprisonment.

2. Leave was granted to consider the following two questions :‑

(i) The petitioner (appellant) could not have, performed an official act within the purview of section 161. P.,P. C. because, he was in. charge of Misri Shah area and the unauthorised construction which the complainant, to be demolished and as a reward for which he allegedly paid Rs. 100 to the petitioner (appellant) was situated in Mohalla Ram Gali outside his jurisdiction. Reliance is placed on the decision of the High Court of West Pakistan reported in Fasih‑ud‑Din v. The State P L D 1956 Kar. 531.

(ii) Section'161, P. P. C. and section 5(2) of the Prevention of Corrup tion Act constitute independent and, separate offences and the petitioner (appellant) should have been given an : opportunity to plead to either of them instead of lumping them together ;as a single: offence."

3. The pertinent facts for the disposal of the appeal may be summarised thus One Labhoo potter was alleged to have made some illegal construction on a piece of land in Lahore belonging jointly to P. W. 4 Muhammad Ishaque and his brothers. With a view to get the illegal structure removed P. W. Muhammad Ishaque and his brother P. W. 5 lqbal went to the office of the Municipal Corporation on the 8th of August 1962, and there met the accused‑appellant. The appellant told the witnesses that the structure could be removed if the latter paid the former Rs. 500. Ultimately the bargain was struck at Rs. 330, and P. W. Muhammad Ishaque paid Rs. 100 to the appellant then and there. The appellant asked that the balance should be paid at his residence. As advised by the appellant, Muhammad Ishaque submitted to the former an application along with a copy of the sale deed and the plan. P. W. Muhammad Ishaque thereafter went straight to the Director; Anti‑Corruption Department and reported the matter to P. W. Muhammad Ikramul Haq, Inspector. P. W. Hamad Illahi, Magistrate was directed by the Additional District Magistrate to hold a trap, and the Inspector gave Rs. 230 in marked currency notes to P. W. Muhammad Ishaque to enable him to pay the balance of the money as claimed by the appellant. The trap succeeded and the money was paid to the appellant at his residence and the latter kept the notes fn a note book. The appellant was at once challenged by the Magistrate but the former caught hold of the latter by his throat and was subsequently rescued by the Inspector. In the meantime the appellant threw the note‑book with the money, and it was picked up by an unidentified man, who came out of the appellant's house. The appellant refused to make any statement to the Magistrate and the .former was arrested at the spot.

4. The appellant pleaded not guilty, and said that he was falsely implicated at the instance of Abdur Rahman, a Building Inspector, a friend of P. W. Muhammad Ishaque. He further said he was not a Demolition Inspector and the structure in question was not within his circle.

5. The High Court found that none of the two P. Ws. Muhammad Ishaque and Iqbal had any personal enmity with the appellant. The Court also found that they were not under the influence of the aforesaid Abdur Rahman, Building Inspector, so much as to falsely implicate an innocent person. Similarly it was held that neither the Magistrate nor the Inspector of Police bad any reason to falsely implicate the appellant.

6. Mr. A. R. Changez, learned counsel for the appellant, has contended before us, firstly, that the act alleged against the appellant does not fall within section 161 of the Pakistan Penal Code inasmuch as the appellant had no authority to demolish and he could not have performed any official act in connection with the demolition ; secondly that the appellant could not be convicted under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, because the two offences are distinct and separate and should not have been lumped together in one charge.

7. Both these ‑contentions have been answered by this Court in the case of Muhammad Farooq v. State (P L D 1956 S C (Pak.) 248 ). In the case under report appellant Muhammad Farooq was Sales Assistant in the office of the Thal Develop ment Authority and in that capacity he dealt with land grants made by the Authority, though only on the clerical side. His superior, the Superintendent deposed that he could not get any money from any purchaser and could not deal with any money matter at all. His duties were to check the clerical work of his branch and pass it on to his higher officers. Muhammad Farooq had admitted that at the request of an applicant for a grant of land for which the latter deposited Rs. 775 as the first instalment of the considera tion, to arrange for the sale of his plot on a premium of Rs. 200, the former informed a potential purchaser lain Muhammad, who came to his office and offered him the sum of Rs. 975. As regards Rs. 200 out of this amount, he told Din Muhammad to pay the aforesaid applicant direct. Appellant Muhammad Farooq did not object to receive from Din Muhammad the sum of Rs. 775, and for this amount he wrote out a receipt and left it on his table, when he was called away by the Secretary of the Thal Development Authority. While he was away, Din Muhammad slipped the money, Rs. 97J in all, along with an application asking for the transfer of the land in his name, into Muhammad Farooq's desk. Subsequently, the raiding party recovered the money from an envelope along with an application by Din Muhammad for transfer of the plot in his name. Din Muhammad produced the receipt which was issued to him by Muhammad Farooq and it read as follows :‑

8. "Received Rs. 715 as advance money for site of shop No. 196 in Bazar of Jauharabad for adjustment pending the approval."

9. The appellant was charged under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 and con victed. It was held that the two offences were identical but in the facts and circumstances of the case it seemed proper to regard the conviction as falling under section 5(2) of the Prevention of Corruption Act rather than under section 161 of the Pakistan Penal Code. Furthermore, that it was not necessary to believe that appellant Muhammad Farooq had, in fact, the power to render service to the transferor and the purchaser, and that it was sufficient that he should have represented himself to be capable of rendering such a service.

10. Applying the principles laid down in the case under report to the facts of the present case there is no doubt about the fact that the appellant represented to the complainant that the former as an official of the Cor poration namely Building Inspector would be able to demolish the unauthorised structure, and, therefore, the act of the appellant was an offence under section 161 of the Pakistan Penal Code.

11. The offence under section 161 of the Pakistan Penal Code is a species and it is included in the offence under section 5(2) of the Prevention of Corruption Act, 1{147. In the case under report it has been held that the accused could have been charged under either or both of the sections although he could not be punished more than once for the same offence and that there was no prejudice. Such a course is authorised under the Code of Criminal Procedure. In the present case no prejudice has been alleged or caused to the appellant. There is no substance in the appeal and it is, accordingly, dismissed.

12. Appeal dismissed.