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Criminal Appeals Nos. 867 to 870 of 1977, beard on 5th July, 1984.

--S. 5(2)-Penal Code (XLV of 1860), S. 21-Pakistan Criminal Law Amendment Act (XL of 1958), S. 5-Public servant-Special Judge-Jurisdiction-Onus on prosecution to prove or place on record material to show that at the time of commission of alleged offence accused was a public servant-Prosecution not caring to prove capacity of accused through notification or oral /documentary evi dence-Nothing on record available to indicate that accused shared executive, pecuniary or punitive powers or control with Government over affairs of the State-Terms and conditions of service, if any, of accused as public servant and duties to be performed not brought on record-Nothing available on record to show that while com mitting alleged offence, accused acted as a public servant-Prose cution failing to lead evidence to the effect that accused held, office at time of commission of alleged offence-Held, mere exercise of authority or use of Government property would not convert a private person into public servant-Special Judge, therefore, could not have tried accused for commission of alleged offence-Conviction record ed and sentence awarded by Special judge to accused were set aside for lack of jurisdiction to try accused.-[Public servant].

S. M. Zafar for Appellant.

Aziz Qureshi for the State.

Date of hearing: 5th July, 1984.

The four Criminal Appeals Nos. 867 to 870 of 1977 arise from the four judgments, dated 22nd October, 1977 of the learned Senior Special Judge. Anti-Corruption, Punjab, Lahore, whereby he convicted Raja Munawar Ahmad appellant under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to R.I. for two years, two years' R.I., one year R.I. and a fine of Rs. 15,000, in default thereof to further R. 1. for one year and one year R. I. and a fine of Rs. 5,000 in default thereof to further R.I. for 9 months respectively with the direction that the sentences awarded in four cases shall run concurrently.

2. The appellant, allegedly, was a counsellor to the then Chief Minister. The charges against him in the four cases were as under

(1) (Appeal No. 867/77).-That he by abusing his official position as a Public servant unlawfully wrote a D. O. letter No. OM/75/ 123 dated 4th June 1975 to Mr. Mazhar Munir, Secretary Local Government, Punjab, Lahore, in which he recommended that Khan Bahadur Niazi should be appointed as L.C.S. II Junior, L.C.S. III Senior or Development Officer (P.W.P.) and that in compliance of the said direction, the Secretary Local Government, Punjab, Lahore appointed Khan Bahadur Niazi as Chief Officer on deputation to District Council Mianwali raising his pay from N.P.S.-5 to N.P.S.-16.

(2) (Appeal No. 868; 77).-That he by abusing his official position as public servant unlawfully wrote to Abdul Latif Mirza, the then Secretary Local Government, Punjab, Lahore, recommending that Subha Sadiq, a Stenographer should be given a chance to serve on a post of L.C.S. I carrying N.P.S. 17 and that in pursuance to his recommendation, the Secretary Local Government ordered that Subha Sadiq be posted as Secretary Municipal Committee, Chakwal on deputation rising his position from N.P.S.-5 to N.P.S.-17, (3) (Appeal No. 869/77).-That he by abusing his official position as a public servant performed private journey on a car from Chief Minister's pool besides using the same at Lahore privately and as such obtained 782 gallons of petrol valued Rs. 10,225 by show ing such private journey as undertaken on Government duty.

(4) (Appeal No. 870/77).-That he by abusing his official position as a public servant made private trunk calls on Government telephone fitted in a room in Chief Ministers Block, Civil Secretariat Lahore to different places incurring of expenditure to the tune of Rs. 4,880. No one has appeared on behalf of the State to oppose these appeals.

3. Since after hearing the learned counsel for the appellant who challenged the authority of the learned Senior Special Judge to try the appellant, 1 feel persuaded to accept the appeals on the ground of lack of jurisdiction of the trial Court to try the appellant, therefore, I need no: set out the facts in detail and enter into the merits of the case. The relevant provisions of law may be reproduced advantageously.

"Section S of Criminal Law Amendment Act, 1958-Offences to be tried by special Judge.--Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge."

The Schedule

(a) ................... .............

(b) Offences punishable under sections 408 to 409, 417 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation. thereto or connected there with, when committed by any public servant as such or by the person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such."

"Section 21 P. P. C.-The words "public servants" denote a person falling under any of the descriptions hereinafter following, namely :-

First:-Omitted.

Second:-Every Commissioned Officer in the Military Naval or Air Forces of Pakistan while serving under the Central Government or any Provincial Government ;

Third:-Every Judge ;

Fourth:- Every Officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any documents, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court ; and every person specially authorised by a Court of Justice to perform any of such duties ;

Fifth: -Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;

Sixth: -Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

Seventh: - Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

Eighth: --Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth: -Every Officer whose duty it is, as such Officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Govern ment, or to execute any revenue-process, or to investigate, or to re port, on any matter affecting the pecuniary interests of the Govern ment, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the fraction of any law for the protection of the pecuniary interests of the Govern ment and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty ;

Tenth: -Every officer whose duty it is as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town, or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh: -Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election."

it is thus obvious that the conditions precedent for taking cognizance by the learned Senior Special Judge are

(i) that alleged offence must be specified one.

(ii) that the accused must be a public servant.

(iii) that a public servant charged with an offence specified in the schedule must also have acted as such at the time of the com mission of crime.

The questions for determination, therefore, are as to whether Raja Munawar Ahmad appellant was a public servant and that he had acted as such at the time of commission of the alleged offence I find that the prosecution case was that the appellant being a counsellor to the then Chief Minister was a public servant. The appellant when examined under section 342, Cr. P. C., denied that he was a counsellor to the then Chief Minister. His plea was that he functioned in a purely political capacity and as such, was not public servant. In these circumstances the onus was on prosecution to prove or at least place on record material to show that at the time of the commission of the alleged offences the appellant was a counsellor to the then Chief Minister. I, find that the prosecution did not care to prove the capacity of the appellant through notification or oral /documentary evidence. There is nothing on record to indicate that the appellant did share executive, pecuniary or punitive powers or control with the Government over the affairs of the State. The terms and con ditions of his service, if any, and the duties to be performed have not been brought on record. Further there is nothing on the record to show that while writing letters to the Secretaries using car from Chief Minister's pool and making trunk calls on telephones, be 'was acting as a public servant. Mere exercise of authority or use of Government property will not convert a private person into a public servant. The prosecution has failed to lead evidence of the office held by the appellant at the time of the commission of the alleged offence. To my mind, the trial Court has wrongly interpreted the provisions of section 21, P. P. C. For all these reasons, I am of the view that the learned Senior Special Judge could not have tried the appellant for the commission of the alleged offences. In this view of the matter, the convictions recorded and the sentences award ed by the learned Senior Special Judge, Anti-Corruption to the appellant are, hereby set aside for lack of his jurisdiction to try the appellant.

M. Z. M. Appeal accepted,

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