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Petitioner: ABUL HOSSAIN VS Respondent: THE STATE
P L D 1960 Dacca 438
P L D 1960 Dacca 438
Before Rahman, J
ABUL HOSSAIN and another‑Appellants
versus
THE STATE‑Respondent
Criminal Appeal No. '446 of 1958, decided on 26th February 1959.
(a) Pakistan Criminal Law (Amendment) Act (XIX of 1948), Ss. 5 (4) & 5 (7)‑No repugnancy between provisions‑Previous statements mentioned in subsection (7) include statements recorded under S. 161, Cr. P. C.
When there are specific provisions in the statute dealing with a specific class of category of subjects, the specific provision must be preferred to any general provision in that statute. But the provisions of subsections (4) and (7) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1948 are not hit by this principle. There is no repugnancy at all between these two provisions. Subsection (4) does not prescribe a time‑limit for the making over of the statements recorded under section 161 of the Criminal Procedure Code, 1898. Subsection (4) merely gives a right to the accused to receive on demand the statements recorded under section 161 of the Criminal Procedure Code, 1898 after the accused has been examined under section 242 of the Code. It does not contain any prohibition that no statement recorded under section 161 of the Criminal Procedure Code, 1898 shall be supplied before the examination under section 242 of the said Code. The time‑limit is, however, provided in subsection (7) and there it has been said that all previous statements of witnesses to be examined by the prosecution at the trial shall be supplied to the accused whether he asked for them or not, at least one week before the commencement of the trial. The general category of previous statements mentioned in the said subsection (7) includes statements recorded under section 161 of the Criminal Procedure Code, 1898.
Qadar Dad and others v. Sultan Bibi and the Crown P L D 1956 F C 129 and Moss v. Elphick (1910) 1 K B 465 ref.
(b) Pakistan Criminal Law (Amendment) Act (XIX of 1948), S. 5 (7)‑Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 6 (7)‑Provisions directory rather than mandatory‑Non- compliance does not necessarily render trial invalid‑Interpretation of Statutes‑Act required to be done by statute within specific time by public body or officer‑Provision directory‑Act maybe done even after time prescribed.
Where an Act orders a thing to be done by a public body or a public officer and appoints specific time within which it is to be done, then the enactment making such provision is directory only and might be complied with even after the prescribed or appointed time. The requirement of subsection (7) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1958 for the supply of copies of previous statements provides only for the performance of a public duty over which others have no control. In such circumstances the provisions should be regarded as being in the nature of mere instructions for the guidance of those on whom the duty is imposed and not as a mandatory provision entailing the vitiation of the resultant acts as a consequence of non-compliance. However if any prejudice or injustice is caused by such non‑compliance to any accused person, the Court will not hesitate to set aside the‑ trial and, if necessary, order a re‑trial.
Montreal Street Railway Company' v. Normandin L R 1917 A C 170 ; Biswanath Khemka v. Emperor A I R 1945 F C 67 and Interpretation of Statutes by Maxwell p. 376 ref.,
(c) Criminal Procedure Code (V of 1898), S. 164‑Statement in nature of confession made before commencement of investigation- Admissible though it is not one made under section.
A statement under section 164 of the Criminal Procedure Code, 1898 is recorded in the course of an investigation. Thus, where no investigation has commenced, section 164 of the Criminal Procedure Code, 1898 is not at all attracted. But this does not mean that confessions, which would otherwise have been admissible, are nevertheless rendered inadmissible because of the fact that they have not been recorded under section 164 of the Criminal Procedure Code, 1898: This section does not exclude confessions which are otherwise admissible in evidence, as for example, con fessional statements made before the commencement of the investigation. To hold otherwise would be to exclude from evidence very cogent and relevant materials.
Nazir Ahmad v. The King‑Emperor 40 C W N 1221 distinguished. In re Arunachala Reddi I L R 55 Mad. 717 rel.
(d) Prevention of Corruption Act (II of 1947), S. 5 (2) Person other than public servant cannot be convicted under S. 5 (2).
A. Salam Khan and Nasiruddin Chowdhury for Appellants. A. Hye Chowdhury for the State.
JUDGMENT
This appeal is by two accused persons who have been con victed under section 165‑A read with section 34 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act (II of 1947). They were tried by the ex officio Special Judge of Jessore in accordance with the provisions of the Criminal Law Amendment Act, 1948, and have been sentenced to suffer rigorous imprisonment for one year each and the amount sought to be offered as a bribe has been forfeited to the Govern ment but no separate fine has been imposed upon the accused persons.
2. It appears that one Abdus Samad, an Assistant Inspector of the District Anti‑Corruption Branch, Jessore, started a case under section 161 of the Pakistan Penal Code against one Abul Kawsar on the 14th of April, 1957. The said Abul Kawsar was a brother of the appellant Abdur Razzak. While this case was under investigation, the appellants, it is alleged, came to the house of the said Abdus Samad (P. W. 1) at about 11‑30 p.m. of the 4th of June 1957, and made many requests to the said Abdus Samad for giving a favourable report in the cast of the said Abut Kawsar. In this connection, they again went to the house of Abdus Samad at 6‑30 a.m. of the 5th of June 1957, and offered to give the said Abdus Samad a bribe for giving such a favourable report. Abdus Samad asked them to come back at 5 p.m. that evening but in the meantime, he informed his Inspector (P. W. 2) about the offer of the bribe by the appellants. The latter arranged a trap, obtained through the District Magistrate's office, the deputation of a First Class Magistrate to be with the trap party and watch the occurrence. The party so arranged, consisting of the Magistrate, the Inspector of the D. A. B. and a local resident, P. W. 4, summoned by the Anti‑Corruption watcher P. W. 5 Idris Ahmed from the neighbourhood, reached the residence of Abdus Samad at about 4 p.m. of the same day. The party consisting of the Inspector, the Magistrate and the neighbour took up their position in the inner apartment of the said Abdus Samad. Abdus Samad remained in his outer apartment and the door communicating between the outer apartment and the inner apartment was kept a little ajar to enable those inside to see what was happening in the other room. The watcher was posted on the verandah outside the room. The appellants, it is said, arrived at the appointed time, sat down on a chowki in the outer apartment facing the said Assistant Inspector Abdus Samad. Thereafter, whilst one of the appellants took out five ten‑rupees notes and moved forward to offer it to the said Inspector, the other appellant requested him to give a favourable report in the case of the said Abut Kawsar. Just at this time, the Magistrate rushed out of the inner apart ment, seized the notes arrested the appellants and interrogated them. The notes were duly signed by the Magistrate and entered in a seizure list. P. W. 1 Abdus Samad then lodged a first
information report, Exh. 2, and a case was then started against these appellants.
3. After the investigation had been completed and the sanction obtained from the appropriate authority, a charge‑sheet was submitted on the 8th of July 1957.
4. At the trial, the appellants pleaded innocence and main tained that no offence at all had been proved against them. Their case appears to have been that they had come to see P. W. 1 Abdus Samad at his own request in connection with the case of the said Abut Kawsar which was, in fact, re‑opened on the 11th of June 1957, after being closed on the 17th of May 1957. They further contended that they had been falsely implicated in this case, as the said Abdus Samad, P. W. 1 thought that the authorities had got scent of his attempt to extort a bribe from these persons. They also maintained that their conviction in the present case was based on no legal evidence at all.
5. The prosecution examined some six witnesses in support of its case. P. W. 1 was the Assistant Inspector to whom the bribe was alleged to have been offered by the appellants. Ha has supported the prosecution story and has not been shaken in cross-examination. He has denied the defence suggestions that were put to him. But he admitted that a proceeding had been drawn up against him by the Superintendent of Police although he maintained that there was no charge of bribery against him. It also appears that at the time of giving evidence he was no longer art Assistant Inspector but an Assistant Sub‑Inspector of Police at the same station.
6. P. W. 2 was the Inspector of the Anti‑Corruption Branch, Jessore, who arranged the trap in the present case after getting the information from P. W. 1 Abdus Samad. According to him, he first got the information about the attempt to bribe the said Assistant Inspector in the morning of the 5th of June 1957, from the watcher P. W. 5 and it was some time after this that Abdus Samad approached him and reported the matter. He has described in detail as to how he arranged the trap and took up their position at about ‑4 p.m. in the inner apartment of P. W. 1. Whilst they were waiting inside the inner apartment, he mentions that two men came into the outer apartment of Abdus Samad. There the appellant Abut Hossain gave some money to the Assistant Inspector and the appellant Abdur Razzaque requested the Assistant Inspector to release his relation after accepting the money. They were watching this through the communicating door of the inner apartment and immediately rushed out‑ Seeing them, the appellant Abut Hossain put the money down on the chowki. The Magistrate, P. W. 3, then took up the money, counted the notes, initialled them and entered them in a seizure list, Exh. 1.
7. It appears from his cross‑examination that the appellants were absolutely unknown to him and he came to see them for the first time on this day. An attempt was made in the cross-examination to show that the things happening in the outer apart ment were not visible from the inner apartment but he clarified that the communicating door was kept open about 7 or 8 inches and from there he could see the Assistant Inspector 'sitting on a chair close to the chowki at a distance of only 4 to 6 cubits from where he watched. The communicating door was in the middle of the room.
8. Apart from this, there is no suggestion even to this witness that he was in any way hostile to the accused persons or had any particular reason to falsely implicate them.
9. P. W. 3 is the Magistrate who was deputed to go with this trap party. He has corroborated the arrangement made by P. W. 2 With regard to the trap as well as to the facts deposed to by P. W. 2 after they had reached the apartment of P. W. 1. He added, however, that, after arresting the accused persons then and there, he began interrogating them. At that time, both the appellants were found to be trembling in fear. The appellant Abut Hossain at first denied having offered any money but sub sequently admitted that he had offered the money to the said Assistant Inspector Abdus Samad and implored for mercy. He, too, was cross‑examined on the point as to whether what was happening in the outer apartment was visible from the place where he was concealed and he stated that the distance between him and the place where the Assistant Inspector was sitting was only 2 or 3 cubits, the chowki was situated near the western partition wall and that the appellants were sitting on the chowki facing the said Inspector. It is significant that no question was put to this Magistrate in cross‑examination regarding the behaviour of the appellants at the time when they were being interrogated by the Magistrate.
10. The next witness is one Monoranjan Ghosh, a resident of the neighbourhood. His house was only about two rashis away from the said place. He has confirmed that he was called by the watcher to be a witness of the trap and he has corroborated the Magistrate and the Inspector. He claims to have seen the five ten‑rupee currency notes lying before the Inspector Abdus Samad. He, too, did not know the appellants from before but the sugges tion that was made to him was that since he is a bus‑owner he is in some way beholden to the police and is, therefore, deposing in favour of the police out of fear. This, however, he denied. P. W. 5 is the watcher. He has also corroborated the evidence given by the other witnesses. He claims also to have seen the appellant Abul Hossain offering the money to this Assistant Inspector Abdus Samad. In cross‑examination, he clarified that the said appellant Abul Hossain put the money in front of the' Inspector on the chowki. P. W. 6 was the investigating officer of the case who submitted the charge‑sheet against the appellants after completing the investigation. On this evidence, the learned Special Judge has found that the case has been well proved against the appellants and that there is no lacuna in the evidence of any kind whatsoever.
11. The learned Advocate, appearing in support of this appeal, realising the difficulty of challenging this evidence on the record, has sought to assail the validity of this prosecution and of the findings of the Court below mainly on points of law.
12. His first contention is that the entire proceeding has been vitiated by reason of non‑compliance with the provisions of subsection (7) of section 5 of the Criminal Law Amendment Act, 1948. He has drawn my attention to the order of the learned Special Judge passed on the 17th of September 1958, on an application for adjournment presented on behalf of the appellants on the previous day. In this application a complaint was made that copies of previous statements of the witnesses had not been supplied to the accused within the time prescribed by subsection (7) of section 5 of the said Act. The trial, it appears, commenced on the 18th of September 1958, and the previous statements were actually supplied on the 13th of September 1958, that is to say, at least, five days before the commencement of the trial. The learned Special Judge in the circumstances, refused the adjourn ment holding that although there had been a violation of the mandatory provision of subsection (7) of section 5 of the said Act, there had been no serious prejudice to the accused persons.
13. The learned Advocate has, however, argued that the question of prejudice has no particular bearing if there has been a violation of a mandatory provision of the law laying down the procedure of the trial and has, in this connection, relied on certain observations of their Lordships of the Federal Court of Pakistan in the case of Qadar Dad and others v. Sultan Bibi and the Crown (P L D 1956 F C 129). There their Lordships of the Federal Court were of the view that when a trial is conducted in a manner different from that prescribed by the Code of Criminal Procedure, then the trial is bad and must be set aside irrespective of any question of prejudice to anyone, as the disregard of an express provision as to the mode of trial was a vital matter and cannot be treated as a mere irregularity.
14. The Pakistan Criminal Law Amendment Act, 1958, which has now repealed and re‑enacted the provisions of the Criminal Law Amendment Act, 1948, only contains this provision regarding the‑ supply of the previous statements. But it appears that section 5 of the Criminal Law Amendment Act, 1948, con tained another subsection, namely, subsection (4), which provided as follows ;
"After the accused has been called upon to plead under section 242 of the Code of Criminal Procedure, Act V of 1898, copies of statements of all such witnesses, recorded under section 161 thereof whose evidence is to be laid at the trial, shall be supplied to the accused, if he so desires".
15. The learned Advocate for the State has, therefore, relied on this provision and pointed out that since this was a trial which Was held under the provisions of the Criminal Law Amendment Act of 1948 and was not a case in which there were any previous statements other than those recorded under section 161 of the Code of Criminal Procedure, the appropriate subsection that applied in the present case was subsection (4) and not sub section (7) and there had been, therefore, no violation of any provision of the Criminal Law Amendment Act in the present case since copies of such statements were actually supplied five days before the trial commenced.
16. The learned Advocate appearing for the appellants has, however, contended that there is no conflict between the provisions of subsections (4) and (7). The general provision for the supply of copies of all previous statements must necessarily also apply to a particular kind of previous statement, namely, the one recorded under section 161 of the Code of Criminal Procedure, and, therefore, all such copies had to be supplied to the accused at least one week before the commencement of the trial and that the Legislature did not by subsection (4) wish to curtail this wider tight that was given by subsection (7). Its object was merely to emphasise that the accused had a right to demand copies of the statements recorded under section 161 and that these could not be withheld if the demand for the same is made after the examin ation under section 242 of the Code of Criminal Procedure. I am also asked to interpret these provisions in such a way as not to impute to the Legislature a manifestly unjust and improper intention, namely, that although all statements including even those recorded under section 164 of the Code of Criminal Procedure or a previous trial, must necessarily be furnished at least seven days before the trial commences, the statements recorded under section 161 of the said Code shall not be so made available until after the examination of the accused under section 242 of the Code of Criminal Procedure. There can be no gain‑saying the fact that these apparently inconsistent provisions in the same section of the statute have led to considerable practical difficulties in the past and it may well be that for the eradication of these difficulties the amending and consolidating Act of 1958 has totally omitted subsection (4).
17. On the other hand, the learned Advocate for the State has strenuously contended that when there are two provisions in the same section of a statute, one dealing generally with all kinds of previous statements, and another dealing with a specific kind of previous statement, then that specific provision must apply in the case of the statements coming within the ambit of those pro visions and the general provisions cannot abrogate the earlier specific provisions. In support of this contention, he has relied on the decision in the case of Moss v. Elphfck ((1910) I K B 465), where Pickford, J., held:
"Where there are two sections dealing with the same subject matter, one section being unqualified and the other containing a qualification, effect must be given to the section containing the qualification." "
18. It is no doubt true that when there are specific provisions in the statute dealing with a specific class or category of subjects, that specific provision must be preferred to any general provision in that statute. But it does not appear to me that the provisions of subsections (4) and (7) are hit by this principle. There does not appear to me to be any repugnancy at all between these two provisions. Subsection (4) does not prescribe a time‑limit for the making over of the statements recorded under section 161 of the Code of Criminal Procedure. Subsection (4) merely gives a right to the accused to receive on demand the statements recorded under section 161, after the accused has been examined under section 242 of the Code of Criminal Procedure. This does not, in my view, mean that no statement can be supplied before that date. Subsection (4) does not contain any prohibition that no statement recorded under section 161 of the Code of Criminal Procedure shall be supplied before the examination under section 242 of the said Code. The time‑limit is, however, pro vided in subsection (7) and there it has been said that all previous statements of witnesses to be examined by the prosecution at the trial shall be supplied to the accused whether he asked for them or not, at least one week before the commencement of the trial. If the Legislature really intended to exclude statements recorded under section 161, from the general category of previous statements mentioned in subsection (7), there was 'nothing to prevent the Legislature from saying so. The fact that it has not said so, in my opinion, indicates that the Legislature did not intend to exclude statements under section 161, from the category of previous state ments mentioned in subsection (7). In any event, it seems to me that the latter subsection was introduced only in 1953 by the Criminal Law Amendment Act of 1953 (Act XXXVII of 1953): it can serve as a guide to the interpretation of these two provisions. The fact that the Legislature had itself made it subsequently clear that its intention was not, as suggested by the learned Advocate appearing on behalf of the State, by providing, without any doubt, that all previous statements, including the statements under section 161 of the Code of Criminal Procedure, must be supplied at least seven days before the commencement of the trial, that interpretation must prevail, for the later enactment conferring a new right must be taken to have impliedly repealed the earlier limited right if the co‑existence thereof would produce incon venience.
19. The next question, therefore, that arises is that if this be so, then is this provision of subsection (7) such a mandatory provi sion that its non‑compliance must necessarily render the trial in valid ? On behalf of the appellant of course this consequence has been canvassed. But it seems to me that to accede to this argument would lead to serious inconvenient results. It appears to me that the requirement of subsection (7) of section. 5, for the supply of copies of previous statements provides only for the performance of a public duty over which others have no control. 'In such circumstances, the rule, in my opinion, is that the provisions should be regarded as being in the nature of mere instructions for the guidance of those on whom the duty is imposed and not as a mandatory provision entailing the vitiation of the resultant acts as a consequence of non‑compliance. It has been stated in Maxwell on the Interpretation of Statutes, Tenth Edition, at page 376 that:
"When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may will (sic) be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative."
It has thus often been held that where an Act orders a thing to be done by a public body or a public officer and appoints specific time within which it is to be done, then the enactment making such provision is directory only and might be complied with even after the prescribed or appointed time. This was the principle which was accepted by the Privy Council in the case of Montreal Street Railway Company v. Normandin (L R 1917 A C 170), and again by the Federal Court of India in the case of Biswanath Khemka v. Emperor (AIR 1945 FC67).
20. In the present case, the statute is a statute designed to provide for more speedy trials and more effective punishment of certain offences punishable under the Penal Code and other laws. It purported to provide special procedure for bringing about such an expeditious trial without doing away with the fundamental principle of a criminal trial in this country. The Act gives the accused person no control or, power to enforce strict compliance with the duties that have been imposed upon the prosecution by these provisions. Yet, it is manifest that if the consequence of the non‑compliance with these provisions by the public officer entrusted with the discharge of the duty mentioned thereunder be that .the entire trial must be vitiated, then incalculable incon…
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