Law:

Section:

Prevention of Corruption Act (II of 1947)---- ----S. 5 (1) (a) (d) read with S. 161, Penal Code (XLV of 1860)-"Criminal miscon­duct"-Medical officer charging larger fee than chat prescribed by Rules, for issuing certificate in a private medico-legal non-­cognizable case as a private medical practitioner-Conduct, held, did not fall under S. 5 (1) (a) (d) or S. 161-Act not "official"­ Receipt of excess fee not "illegal", but proper subject for depart­ mental action (By majority; S. A. Rahman, J. contra)-Penal Code (XLV of 1860), S. 43-"Illegal", definition-Rules (Medical Department), r. 4 (c)-Constitution of Pakistan (1956), Art. 224­ Breach of statutory Rules-"Illegal" (per S. A. Rahman, J.). Held, (per majority, S. A. Rahman, J., contra) : that the receipt by a doctor of money, for his professional services as a private medical practitioner, in excess of the sums specified in the relevant rule [r. 4 (c)] does not amount to the gaining of pecuniary advantage by "illegal means". It may be a breach of Rules inviting sanctions of a departmental character. The word "illegal" is defined in section 43 of the Penal Code as being "applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action". In the present case, the relevant rule is worded not in terms of prohibition but in affirmative terms. It is not indicated that the intention is to prevent Medical Officers from charging any fee higher than that mentioned. On the other hand, it is possible to construe the rule as providing minima in respect of fees, but without going to that extent, it is sufficient to say that the rule cannot be construed and applied as if it were worded so as to prohibit the charge of any sum in excess of that specified. Even if it was so worded, it might still be a question whether, bearing in mind that this was a rule included in a large set of detailed rules applicable to Medical Officers, it could by any means be regarded as having the force and effect of law, as generally understood, so that contravention would necessarily involve an illegality. It is equally clear that there is nothing in the Rules or in any other law to make it an…

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