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Criminal Miscellenous Petition No. 209 of 1965, decided on 1st March 1967.

----Ss. 5 & 6 read with Schedule‑Accused not holding any public office at time of commission of offence‑‑field, not entitled to protection of special trial and procedure laid down under Act.

Khalid M. Ishaq, A. A:-G. for Petitioner.

Al‑e‑Raza for the State.

Date of hearing : 5th July 1966.

Three cases under section 420/109, P. P. C. were registered against the petitioner and his son Muhammad Saeed on the basis of F. I. R. Nos. 12, 15 and 17 of 1965 by Eid‑Gah Police 'Station, Karachi, and three separate challans have been submitted against grate the petitioner and his son before City Magistrate, Court No. 15, Karachi. The petitioner seeks the quashment of the proceedings in all the three case: and has approached this Court under section 561 .A, Cr. P. C. The facts of Case No. 106/65 relating to F. I. R. No. 12/65 are that on the 15th of February 1965, complainant Abdul Rashid at about 3‑30 p.m. in company of Muhammad Ikram, Abdul Karim and Muhammad Dakhah P. Ws. took Muhammad Azhar accused with them to the police and reported that the complainant was working as Kabaria on Lawrence Road, near Tepu Sultan Hotel and a few days before that date Saeed sun of Azhar appellant approached him and enquired from him about one Bashir Kabaria. The complainant told him that there was no person of the name of Bashir Kabaria in that market and enquired from Saeed about the nature of work which he wanted with Said Kabaria. Sated accused informed the com plainant that a quarter had been allotted in the name of Bashir and represented that his father was a big officer in K. D. A. and was responsible for making allotments of residential quarters in Karachi. The complainant sought the help of Saeed for procur ing a quarter for him also and Sated told the complainant to accompany him to his father. Abdul Rashid complainant also told three of his friends Muhammad Ikram, Abdul Karim and Muhammad Bakhsh about Saeed and all of them agreed to accept quarters through the agency of petitioner in new Karachi. Abdul Rashid went to Muhammad Azhar with his son. Saeed's father Muhammad Azhar told the complainant that he was a big officer of the K. D. A. and informed him that the fees for allotment of each quarter was Rs. 46 and asked for the photograph of each one of the applicants. The complainant informed Abdul Karim, Muhammad Warn and Muhammad Bakhah and all of them agreed to take one quarter each for themselves. Next day Muhammad 1kram and Abdul Rashid went to Queen's Road at the house of Muhammad Azhar but he told them to come some other time to his house. On the next day all the four persons went to the house of the petitioner and decided to call Muhammad Azhar to their hotel. On the 13th of February 1965, at about 11 a.m. Muhammad Azhar came to the complainant's hotel at lawrence Road, where all the four persons gave him Rs. 150 and promised to give him the balance of Rs. 34 next morning. When Rs. 150 were given by Muhammad Ikram to Muhammad Azhar at that time Baba and Usman were also present. The complainant and his companions made enquiries about the petitioner from the office of the K. D. A. and found that the petitioner was not employed there and that they had been :.heated by him. Next day according to the previous appointment Muhammad Azhar came again to collect the balance of Rs. 34 but he was caught hold of by all the above named persons and brought to the Police Station Eid‑Gah where F. I. R. No. 12 of 1965 wits lodged.

2. The same types of story has been given by Hafiz Khuda Bakhsh in Case No. 107/65 registered under F. I. R. No. 15/65. In this case it is alleged that on the 21st of February 1965, Saeed son of the petitioner approached at the complainant's shop and enquired from him about one Ibrahim watch maker. At the same time he told the complainant about his father's position in the K. D. A. The complainant showed his interest to get a house for himself and Saeed promised that he will get him one through his father. Thereafter Sated returned with his father Muhammad Azhar to the shop of Khuda Bakhsh and the petitioner asked him to pay Rs. 300 in advance which were paid to him by the com plainant on the spot. Next day Sated accused approached the complainant and demanded Rs. 300 more. The complainant asked him to take him to his father whereupon Sated and the complainant went to the house of the petitioner who also demand ed the balance of Rs. 300. Hafiz Khuda Bakhsh was unable to pay the amount at that time and the matter was settled at Rs. 250. Thereafter Sated returned with Hafiz Khuda Bakhsh to his shoo at Yaqub Road, and received Rs. 250 from him in the presence of Abdur Rahman and Rehmat Khan. A slip on which the address was written by Sated in his hand was also given to the com plainant. Sated promised that he will visit the shop of complainant next morning at 9‑30 and the petitioner reached there at the given time and demanded Re. 200 more. The complainant was unable to pay this amount but paid him Rs: 80 only. Muhammad Azhar petitioner promised to see him again at 12‑30 p.m. the same day but he slid not turn up. Next day Hafiz Khuda Bakhsh went to the house of Muhammad Azhar but he was put off on one pretext or the other. The visits were repeated for four or five times and the return of money was also demanded. Feeling disappointed Hafiz Khuda Bakhsh lodged this case with Eid‑Gah Police Station on the 20th of February 1965.

3. In the similar fashion deception is alleged to have been practised upon Ansar Ahmed resident of 6/48, Nazimabad, Karachi, who was also dishonestly relieved Rs. 184 on the 26th of December 1964, at about 10‑30 a.m. when the petitioner and his son Muhammad Saeed accused received this amount from the complainant for the allotment of some quarters with the photo graphs of the P. Ws. On the 30th of December 1964, Muhammad Sated accused and Muhammad Azhar petitioner went again to the complainant and told him that they had given four quarters in one line and demanded Rs. 500 from them so that they could give them possession in the evening. The complainant and his companions gave him Re. 500 and promised to come back next day, but they did not turn up and all the persons who paid money to the petitioner went to his house when he promised to come to the house of the complainants on 1st of January 1965, and told them that he will either return the money or will get them the allotment of the quarters. The accused Muhammad Azhar and his son Muhammad Sated did not turn up and after waiting for some time F. I. R. No. 17/65 was lodged against both of them on the 22nd of February 1965.

4. The challans were received by the Additional City Magistrate, Court No. 15, Karachi on the let of May 1965 who summoned the prosecution evidence for the 15th, 17th and 18th of May 1965, and at the same time issued notices to the accused for appearance on these dates. On the 7th of May 1965, the petitioner presented his application under section 561‑A, Cr. P. C. and the proceedings were stayed by the order of this Court dated the 13th of May 1965.

5. The first contention of Mr. Khalid Ishaq learned counsel for the petitioner in all the three cases was that the prosecution in these cases is an abuse of the process of the Court as it has been commenced on account of conspiracy between the Commissioner, Karachi, Director of Basic Democracy and Mr. Amanullah Khan. The reason for this submission was that the petitioner was serving as Development Officer and Secretary, Tehsil Council Basic Democracies and was posted in Karachi sometimes in 1961. Certain allegation of misconducts were levelled against him and lie was served by his department with a charge‑sheet and ultimate ly on the 14th of May 1963, removed from service on the charge of misconduct by the Commissioner, Karachi. This order of removal was unsuccessfuly challenged by the petitioner before the High Court but the Supreme Court of Pakistan, on the 23rd of February 1965, declared his dismissal to be illegal and he was hold to be still in the service of his department, holding the post of Development Officer. It was contended that the above case was to be argued by the petitioner before the Supreme Court personally and the final hearing of the appeal before the Supreme Court was fixed in the week commencing 16th of February 1965, and since that appeal was against the order of Commissioner, Karachi Division etc., therefore, all the officers conspired together and got three false criminal cases registered against the petitioner so that. he could be deterred and hindered from appearing before the Supreme Court. This argument of the learned counsel has root appealed to me in the least. I fail to understand how the above named three big officials of the Government were able to make an unholy alliance to falsely implicate the petitioner in three different cases of cheating, etc., and were in a position to influence various persons belonging to different localities of Karachi to make out a stereo‑types tory against the petitioner and his son. Moreover I am not prepared to believe that they were able to visualise and anticipate that the result of the appeal in the service case before the Supreme Court was going to be against them especially when the judgment of the High Court was in their favour. It will be highly conjectural to presume that the three above named officials presupposed that the only method of stopping the petitioner from appearing before the Supreme Court was to involve him in three different false cases. Even if the petitioner was prevented by this method alone to argue his appeal it would not have been difficult for him to entrust his brief to any counsel or to ask for an adjournment from the Supreme Court if he was keen to argue the case himself and do not think that in these circumstances the adjournment would have been refused. I am not prepared to think for a moment that the three bag officials of Karachi joined their heads together with the ulterior motive of preventing the petitioner from arguing his case before the Supreme Court and stooped so low as to involve him in three false cases. I am more fortified in my view for the reason that all these cases were cat' bailable maure and it at all the authorities wanted to malaciously implicate him in a false case it would not have been difficult for them to level some serious allegations against the petitioner of at least some cases of non‑bailable nature.

6. The other argument advanced by the learned counsel for the petitioner was that the petitioner is a public servant and the offences for which he is being prosecuted are those which have been listed under the Schedule of the Criminal Law (Amendment) Act of 1958, therefore, he cannot be tried by the Court of an ordinary Magistrate and is liable for prosecution, if any, according to the procedure under the Criminal Law (Amendment) Act, 198 This argument has no force. The petitioner was removed from service on the 14th of May 1963, by order of the Commissioner, Karachi, who held him guilty of misconduct and was pleased to order his removal from service. The offences are alleged to have been committed by him between the 15th arid 22nd of February 1965 at a time when a valid order of his removal from service was in force. The effect of the order of removal passed by the Commissioner, Karachi, against the petitioner wits that he was not holding any office as a public servant on the date when tire offences are alleged to have been committed by him. No doubt the petitioner's appeal was accepted by the Supreme Court Muhammad Azhar v. Commissioner, Karachi (PLD 1966 SC 253) on 23‑2‑65 and it was held by their Lordships that his order of removal from service was void because it was passed by an authority which had no jurisdiction to pass it and because the Public 'Service Commission was not consulted. It was further declared that this dismissal from service was void and he continues to hold the post of a Development Officer in his department. The effect of the order of the Supreme Court is that the petitioner may be con sidered to be entitled to all the benefits of his office but he cannot claim the benefit of a trial as a public servant for the offences which were committed by him during the time when he was not actually holding a public office. Moreover, the petitioner was employed in the department of Basic Democracies and had nothing to do with any office in the 1,;. D. A. According to the allegations in all the three F. I. Rs. he represented himself to be an officer in the K. D. A. while at that time he was neither in the Government Service nor holding any public office anywhere. He cannot claim the protection of a technical order by which he has been declared to be deemed to hold this office from where he was removed by the Commissioner, Karachi. It is a plain case of cheating within the meaning of section 420, P. L. C. and he cannot ask that he should be tried in accordance with the provisions of Criminal Law (Amendment) Act, 1958. The petitioner cannot be said to have accepted these wages of iniquity as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions etc., as laid down under section 161, P. P. C. Since he was not actually holding any public office on the dates when it is alleged that he committed various offences under section 420/109 of the Pakistan‑ Penal Code, therefore, these acts were not committed by him as a public servant and cannot be said to be in the province of his duty.

7. Learned counsel for the petitioner also attempted to show that it was the duty of the petitioner as a Secretary, Basic Democracies, to make housing arrangement in his Tehsil and as such his representation that he was capable of rendering services to the complainants for providing housing facilities and receiving pecuniary advantage from them may be considered for the purpose of showing a favour during the discharge of his official duty. But the petitioner was neither holding nor expecting to hold any office in the K. D. A. between the 15th and 22nd of February 1965, and in fact he was at that time living as an ordinary citizen without any employment, therefore, he cannot claim the benefit of a trial as a public servant under the Criminal Law (Amendment) Act, 1958.

8. Learned counsel also tried to show that by virtue of subsection (2) of section 2 of the Pakistan Special Police Establish ment Ordinance, 1948 (Ordinance No. VIII of 1948) the Special Police Establishment alone was competent to investigate the case of the petitioner and the ordinary police was not entitled to make any investigation and as such the three challans submitted by them should be quashed. I do not think that there is anything in the Pakistan Special Police Establishment Ordinance to create a bat of jurisdiction for the local police to make an investigation, of crimes. The Ordinance gave powers to the members of the 'Special Police Establishment to have jurisdiction throughout Pakistan in relation to the investigation of such offences etc., and to enjoy the privileges and liabilities which the police officers of a' province have with the investigation of the offences mentioned therein. The proviso to subsection (2) of section 2 has been clarified by the Central Government by Order No. 13/73/48 Police (2), dated the 11^th of December 1954 as follows:‑

"The Central Government is pleased to direct that the substantive provision of that subsection shall not debar Police Officers who are not members of the Special Police Establishment from exercising all or any of the powers vested in or conferred upon such Police Officers by or under the Code of Criminal Procedure, 1898 (Act V of 1898), or the Prevention of Corruption Act; 1947 (I1 of 1947), in respect of any such offences or person as is specified in the said proviso, in any case where the Special Police Establishment has not already started investigation of the case:

Provided that in every such case intimation of the investiga tion started by such Police Officers as aforesaid shall be given to the appropriate officer of the Special Police Establishment as early as may be after its commencement:

In view of this clarification of the Central Government it is clear that the jurisdiction of the ordinary police Is not barred under the Ordinance and the only rider is to the effect that the ordinary police has to inform the officer of the Special Police Establishment as early as possible.

9. As already held earlier, the petitioner was not actually holding any public office between the 15th. and 22nd of February 1965, and any offence, committed by him during that period, even if it was one of these offences which are listed in the Schedule A to the Criminal Law (Amendment Act, 1958) will not give him the protection of special trial and procedure laid down under that Act.

10. As a result of the above discussion I see no merits in these petitions which are hereby dismissed. The file of the case should be returned to the trial Court forthwith.

Petition dismissed.

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