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Criminal Petitions Nos. 379 and 380 of 1978, decided on 25th November, 1978.

(On appeal from the order dated 1‑8‑1978 of the Lahore High Court at Lahore in Cr. Misc. Nos. 550‑Q and 506‑Q of 1978).

-------Ss. 3, 5 (1), 5(7) & 6(4)‑Jurisdiction‑Provisions contained in Ss. 5(7) & 6(4)‑Attracted to a case after its being lawfully drawn within purview of S. 5(l) for trial by Special Judge appointed under S. 3‑Section 6(4)‑Held, could be invoked only after Special Judge validly seized of case and not otherwise.‑[Jurisdiction].

Mst. Thari v. Muhammad and 2 others P L D 1973 S C 619 ref.

‑‑ S. 409/420/467/468/471 read with Prevention of Corruption Act (II of 1947), S. 5(2) and Pakistan Criminal Law Amendment Act (XL of 1958),‑ S. 5(l) ‑.‑ Jurisdiction ‑ Contention that offence of having obtained employment by forging false certificates having not been committed on or after accused petitioners actually appointed as public servants, offences not triable by Special Judge‑‑Held : Letters of appointment having been issued on faith of petitioners' representa tion of their being duly qualified on basis of allegedly false certificates of having passed requisite examination and petitioners having actually joined service and reported for duty on same basis and express or implied representations and continued to hold posts and draw salaries, offence, Warty, completed as soon as petitioners reported for duty and joined service.‑[Jurisdiction].

‑‑‑‑ S. 5(7). 6(4) & Sched. and Penal Code (XLV of 1860), S. 471 Joinder of charges‑‑Offence under S. 471 though not scheduled offence yet, held, could be tried jointly with scheduled offences.‑[Joinder of offences].

Zafar Ullah Cheema, Advocate Supreme Court instructed by Syed Wajid Hussain, Advocate‑on‑Record (absent.) for Petitioner.

Nemo for the State.

Date of hearing: 25th November 1978.

‑This will dispose of two Criminal Petitions for Special Leave to Appeal No. 379 of 1978 by Asghar Ali Shah and No. 380 of 1978 by Jehangir Khan, both arising out of a common judgment delivered by a learned Judge of the Lahore High Court at Lahore on the 1st of August 1978.

Briefly the relevant facts are these. In July 1973, Asghar Ali Shah produced a certificate of having passed the J. V. Examination before the Municipal Corporation, Faisalabad, and on the strength thereof was appointed as J. V. teacher in a school run by the Municipal Corporation, Faisalabad. Afterwards, on the 1st of April 1975, an F. I. R. was lodged against him at the Police Station A. C. E. Faisalabad at the instance of one Riaz Hashmat Inspector Anti‑Corruption to the effect that he had managed to secure the appointment as a J. V. teacher under the Municipal Corporation, Faisalabad, by production of the afore‑mentioned certificate of his personal qualification which was bogus. After the necessary investigation into the allegation, the petitioner was sent up for trial before the Special Judge Anti‑Corruption Faisalabad under section 409/420/467/478/471, P. P. C. read with section 5(2) of the Prevention of Corruption Act 1947. The petitioner then filed Cr. Misc. No. 550‑Q of 1978 in the High Court at Lahore for quashment of the proceedings.

Similarly in July 1973, Jehangir Khan petitioner produced a certificate of his having passed the J. V. Examination before the Municipal Corporation, Faisalabad, and on the strength thereof was appointed as J. V. teacher in a school run by the Municipal Corporation Faisalabad. Afterwards, on the 18th of February 1975, an F. I. R. was lodged against him at the Police Station A. C. E. Faisalabad at the instance of Riaz 'Hashmat Inspector Anti‑Corruption to the effect that he had managed to secure his appoint ment as a J. V. teacher under the Municipal Corporation Faisalabad by the production of a bogus certificate of his personal qualification. After the necessary investigation into the allegation, the petitioner was sent up for trial before the Special Judge Anti‑Corruption Faisalabad under sec tion 409;420;467/468/471, P. P. C. read with section 5(2) of the Prevention of Corruption Act 1947. The petitioner than filed Cr. Misc. No. 506‑Q of 1978 in the High Court at Lahore for quashment of these proceedings.

In the two quashment applications the respective petitioners alleged that in as much as they did not commit any such offence on and from the date he was a public servant, he was not triable for the offence attributed to him before the Special Judge, Anti‑Corruption vested with the jurisdiction under section 5(1) of the Pakistan Criminal Law Amendment Act 1958. At any rate, according to him, the offence under section 471, P. P. C. not being a scheduled offence under the Act, the same was triable by the ordinary criminal Court only and not b) the Special Judge Anti Corruption.

But on the 1st of August 1978, the learned Judge of the Lahore High Court dismissed both these quashment applications by a single order as common questions of law and facts were raised before him. In this connection it was submitted before him that even if the petitioners might have committed the alleged offence for having secured their appointments by the production of the forged certificate, this was done before they were actually appointed as public servants and that they did not commit the offences attributed to them at any time on or after the date of their appointments as public servants and as such they were not liable to be proceeded against under section 409/420/467/468, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947. As to the offence under section 471, P. P. C., it was submitted before the High Court that the same was not a scheduled offence under the Pakistan Criminal Law Amendment Act, 1958 and therefore, the same could not be tried by the Special Judge Anti‑Corruption and that therefore, the proceedings against. the respective petitioners were liable to be quashed.

In repelling these contentions the High Court observed that the offences under section 409/420/467/468, P. P. C. are offences specified in the schedule under section 5(1) of the Criminal Law Amendment Act, 1958 and as such are triable by the Special Judge Anti‑Corruption, if they are committed by public servants in their capacity as such. In this connection the learned Single Judge went on to observe that assuming, though not conceding, that for the purposes of this case, it was held that the petitioners did not commit any offence as public servant on or after their respective appoint ments as such and were therefore, not liable under section 409/420/467/468, P. P. C. or section 5(2) of the Prevention of Corruption Act 1947, the question still remains to be seen was as to whether they could be tried by the learned Special Judge, Anti‑Corruption Faisalabad for the offence under section 471, P. P. C. not committed in their public capacity. The learned Single Judge answered this question in the affirmative. In his opinion section 5(7) of the Criminal Law Amendment Act, 1958 permits a Special Judge, when trying offences under the Act, to also charge with and try offences not triable under that Act, with which the accused may, under the provisions of the Cr. P. C. relating to the joinder of charges, be charged at the same trial. The High Court further observed that section 6(4) also permits the Special Judge, notwithstanding anything contained in the said Act, to convict the accused of any offences, for which he may not have been charged, if from the facts, admitted, or proved, it appears he had committed. Therefore, relying on the previsions contained in section 5(7) and section 6(4) of the Act the learned Single Judge of the High Court reiterated in holding that assuming, though not admitting, that no case was made out against the petitioners under section 409/420/467/468, P. P. C. or section 5(2) of the Prevention of Corruption Act 1947, the. Special Judge can still proceed with the case. On this finding, therefore, the High Court dismissed the two quashment applications filed by the respective petitioners.

We have heard the learned counsel for the petitioners. With due deference we, are not impressed with the above mentioned line of reasoning adopted by he High Court in dismissing the two quashment applications. The provisions contained in section 5(7) and section 6(4) of the Criminal Law Amendment Act, 1958 are attracted to a case after it has lawfully] been within the perview and scope of section 5(1) of the Act for trial by the Special Judge appointed under section 3 of the Act. In Mst. Thari v. Muhammad and 2 others (PLD1973SC619) it was held that if a Special Judge in exercise of his jurisdiction was validly seized of the case, it will be perfectly open to him to convict the accused of any offence which from the facts admitted or proved, he appears to have committed. In that case section 6(4) of the Act was invoked only after that the Special Judge was validly seized of the case and not otherwise.

Inspite of this we find no force in the two quashment applications before the High Court for reasons of our own. Admittedly the alleged offences under section 409/420/467/468, P. P. C. are scheduled offences under the Pakistan Criminal Law Amendment Act. But the precise objection raised is that these offences attributed to the petitioners were not committed on or after they had been actually appointed as public servants and therefore, these offences attributed to them were not triable under the Act by the Special Judge. In this connection however, section 2 of the Prevention of Corruption Act 1947 defines a "public servant" to include an employee of the corporation. Before us it was not denied that the two petitioners ale public servants employed by the respondents. But the only contention raised before us is that the petitioners may have committed the offence, if any, by the production of the allegedly forged certificates before and not at any time on or after their appointment as public servant as such. But we find no force in this contention. In our opinion the letters of their appointments were issued to the petitioners on the faith of their representation that they were duly qualified on the basis of the allegedly false certificate that they had passed the J. V. Examination and' they actually joined the service and reported for duty on the same basis and express or implied representations and they continued to hold the two posts and draw their salaries throughout on that basis. At least the offence if any was completed the moment they reported for duty and joined the service thus procured on the basis of the allegedly forged certificate.

Admittedly, the offence under section 471, P. P. C. is not a schedule offence but it could be tried jointly with the offences under section 409/420/467/468/471, P. P. C. and on this view of the matter the learned counsel did not very much press this objection before us at the hearing.

For the foregoing reasons we see no force in these petitions which are accordingly dismissed.

Petitions dismissed.

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