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Criminal Appeal No. 397 of 1976, heard on 6th May, 1984.

-- S. 5 (2) - Criminal misconduct - Accused allegedly obtaining electricity connection in his residential quarter from Guard-Room of Sub-Division Office-Use of electricity in circumstances, held, would not fall within purview of S. 5 (2) of Prevention of Corrup tion Act-Conviction and sentence set aside.

Ch. Muhammad Tufail Basra for Appellant.

Ch. Muhammad Ibrahim for the State.

Date of hearing: 6th May, 1984.

This Criminal appeal arises from judgment of learned Special Judge, Anti-Corruption, Punjab, Lahore whereby he, on 16th February, 1976 convicted Mehfooz Ahmad appellant under section 5(2) of the Pre vention of Corruption Act, 1947 and sentenced him to imprisonment till rising of the Court and a fine of Rs. 700 in default thereof to further R. 1. for 9 months.

2. The charge against the appellant is that while appointed as Peon in Drainage Division, he illegally obtained electricity connection in his residential quarter from the Guard-Room of the Divisional Office and used electricity from February, 1969 to July, 1973 without paying charges to the department and thereby caused wrongful loss of Rs. 418.70 to the Government and corresponding pecuniary gain for himself. The appellant denied the charge and claimed to be tried. On the conclusion of the trial, the appellant was convicted under section 5 (2) of the Prevention of Corruption Act, 1947.

3. Since I am inclined to accept the appeal on a short legal ground, therefore, I need not set out the facts in detail and need not discuss the evidence of the parties. The legal ground is that the charge accepted at it face value does not tantamount to misconduct punishable under section 5 of the Prevention of Corruption Act, 1947. Section 5 of the Act relating to criminal misconduct may be reproduced advantageously.

5. Criminal misconduct ..(1) A public servant is said to commit the offence of criminal misconduct ......

"(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or

(b) if he accepts or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any person to do so, or

(d) if he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage."

The plain reading of section 5 indicates that the act of the appellant that he illegally obtained electricity connection for his residence from Guard Room of the Divisional Office and the use of electricity by him does not fall within the purview of clauses (A to D) of section 5 of the Prevention of Corruption Act, 1947.

4. For what has been stated above, I am of the view that the conviction of the appellant under section 5 (2) of the Prevention of Corruption Act. 1947 is not maintainable. The appeal is accepted and the appellant is acquitted of the charge. He is on ball. His bail bonds stand discharged.

S. G. D. Appeal allowed.

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