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Criminal Appeal No. 867 of 1971, heard on 16th April 1975.

‑‑ S. 161 read with Prevention of Corruption Act, (II of 1947), S. 5(2) ---Bribe‑[Trap Case]‑Jurisdiction‑No evidence on record to show that accused was either a public servant or was performing duties in capacity of a public servant at time of alleged offence‑Anti‑Corruption Judge, held, had no jurisdiction to try case‑Conviction and sentence set aside in circumstance.‑[Jurisdiction].

Karim Bakhsh v. State P L D 1962 Lah. 144 ref.

Sh. Bashir Ahmed for Appellant.

Kh. Shaukat All for the State.

Date of hearing : 16th April 1975.

Wahid Bakhsh was tried for accepting illegal gratification of Rs. 30 from Allah Yar. Ch. Ghulam Rasul Azhar, Special Judge, Anti‑Corruption, Lahore Camp at Muzaffargarh convicted him under section 161, P. P. C. and sentenced him to suffer rigorous imprisonment for nine months, vide his judgment passed on 1‑12‑1971. Wahid Bakhsh has come up in appeal.

2. According to prosecution Allah Yar P. W. was visiting District Headquarters Hospital for getting medicine. He approached the Anti. Corruption Establishment to register an F. I. R., on 31‑5‑1969 at Police Station Anti‑Corruption Establishment, Muzaffargarh, in which Allah Yar stated that on 30‑5‑1969 he took doctor's slip to the Hospital Store for drawing tablets but the store‑keeper demanded Rs. 50 from him as illegal gratification for supplying him with medicine and the bargain was settled eventually at Rs. 30, and that Allah Yar did not want to pay that amount. A raid party consisting of Ch. Muhammad Akram, Naib Tehsildar (P. W. 1) Allah Yar complainant (P. W, 2), Ghaus Bakhsh, witness of recovery and the Sub‑Inspector, Anti‑Corruption, Establishment, namely, Muhammad Nawaz, was arranged. The tainted money of Rs. 30 was delivered to Allah Yar P. W. who went and passed it on to the appellant accordion to the arrangement and the same was produced by the appellant before the raid Magistrate on his demand. After completing the raid report, the raid Magistrate delivered relevant papers to the police and ordered arrest of tile appellant. After comple tion of investigation police challaned the appellant.

3. In his statement recorded immediately after the raid, Exh. P. D., the appellant stated that Allah Yar P. W. had paid him the tamed money of Rs. 30 for helping him to purchase local made medicine from the Tabeeb and he repeated the same on the conclusion of his trial.

4. Before commencement of the trial an objection was taken on behalf of the appellant that he was not a public servant. The learned trial Judge, by an order dated 18‑9‑1970, found that prima facie it would be difficult to hold that the appellant was not a public servant. In response to a letter addressed by the learned trial Judge to the District Health Officer, Muzaffargarh for obtaining sanction for prosecution of the appellant, the latter wrote back, vide Exh, D. F., that the appellant was not a public servant. The appellant also examined Amir Bakhsh (D. W. 1), who was a Senior Clerk in the office of the District Health Officer, Muzaffargarh who supported the appellant and deposed that the appellant was not burdened with any respon sibility as a public servant nor was he drawing any salary.

5. The learned counsel for the appellant has argued that trial of the appellant is vitiated because he was not a public servant at the time he committed the offence charged with. He has relied on Karim Bakhsh v. State (P L D 1962 Lah. 144) and has argued that no evidence was brought on record to specify the duties of the appellant. The learned counsel for the State has submitted that he is unable to support the finding of the learned trial Judge that the appellant was a public servant at the relevant time.

6. I have considered the entire evidence in the case. The prosecution in all led four witnesses who deposed about the raid and recovery of the tainted money. Allah Yar P. W. is the decoy witness, Ghaus Bakhsh is the witness of recovery while the raid Magistrate and the Police Sub‑Inspector proved the recovery and raid report. There is no evidence on record by the prosecution to show that the appellant was a public servant or was performing the duties as a Dispenser in the Civil Hospital at Muzaffargarh on the day and time he is alleged to have committed the offence of demanding and accepting Rs. 30 as illegal gratification. In reply to the letter addressed by the learned trial Judge for obtaining necessary sanction for prosecution of the appellant the District Health Services, Multan Region, Multan wrote back, vide Exh. D. F., that the appellant was not a Government servant and as such no question arose for his prosecution as a Government servant and that the appellant was a public man. On the evidence on record and in the circumstances o the case, I am satisfied that the prosecution has failed to prove that the appellant was a public servant within the meaning of law on the day and A time on which he is alleged to have demanded and accepted Rs. 30 as illegal gratification The offence is alleged to have been committed on 31‑5‑1969. The learned Special Judge, Anti‑Corruption had no jurisdiction to try the case.

7. As a result of above discussion the appeal is accepted, conviction and sentence of appellant is set aside. This is a very old matter and I dot not want to remand this case for re‑trial. The appellant is acquitted. He is on bail and his bail bonds are discharged.

Appeal allowed.

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