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Complaint Case No. 1 of 1985, decided on 15th July, 1985.

---S. 5--Penal Code (XLV of 1860), S.21(clause ninthly) Banks Natinalization Act (XIX of 1974), S. 5(4)--Manager of bank owned/ controlled by Federal Government--Public servant--lank owned /controlled by Federal Government and its Manager was thus in service and pay of, and performing delegated function Government--Such servant coming within purview of Clause Ninthly of S. 21, Penal Code was, therefore, a public servant.

Gul Amir v. The State and 2 others 1979 P Cr. L J 995; Reg. v. Ramajira Jivba Jira and another 1875 Bombay High Court Reports 1; Ahad Shah v. Emperor A I R 1918 Lah. 152 (2) and Karim Bakhsh v. The State P L D 1962 (W.P) Lah. 144 rel.

---S. 200(aa)--Penal Code (XLV of 1860), S. 406/34--Complaint made in writing by complainant who was a public servant--Question whether prima facie any scheduled offence made out against accused could be seen from contents of complaint--Examination of complainant, held, was not necessary.

-----S. 200(aa)--Penal Code (XLV of 1860), S. 406/34--Complaint lodged by public servant--Complaint and documents attached therewith showing that prima facie offences under S. 406/420/34, Penal Code, made out against accused--Offence under S. 420/34, Penal Code, not triable by Special Court--Accused could be summoned through bailable warrants of arrest to stand trial for offence under S. 406/34, Penal Code.

Rahman Raza with Shahid Hameed for the Complainant.

This is a complaint case. Under section 200 of the Code of Criminal Procedure, statement of the complainant ought to be recorded immediately on presentation of the complaint by the complainant. Proviso (aa) to said section, however, lays down that when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which complaint has been made by a public servant acting or purporting to act in discharge of his official duties. The plea of learned counsel for the complainant is that though Allied Bank Ltd. is shown as the complainant in this case, in actual fact S. Rehman Raza, Manager/AVP of Allied Bank of Pakistan Limited Gole Cloth Bazar Branch, Faisalabad, through whom said bank has filed this complaint is the actual complainant and since he is a public servant and has filed this complaint in discharge of his official duties, his statement under section 200, Cr.P.C. need not be recorded and it is sufficient to peruse the complaint and the documents attached thereto to determine whether prima facie the case stands made out against the accused for offences mentioned in the complaint to justify issuance of process against them. The correctness of this submission of the learned counsel is, however, dependant upon the circumstances of the complainant Manager/AVP being a 'public servant'. I accordingly called upon the learned counsel to show how the Manager of said branch of A.B.L. is a 'public servant'. I have heard his arguments today, perused the relevant law on the subject and given my serious thought to the same.

2. Public Servant' is not defined in the Criminal Procedure Code but it has been given in the later part of subsection (2) of section 4 of the said Code that all words and expressions used therein and defined in the Pakistan Penal Code and not hereinafter defined shall be deemed to have the meanings respectively attributed to them by that Code. In Pakistan Penal Code, however, the term 'public servant' has been defined in section 21 thereof. These words are also available in the explanation appended to section 161, P.P.C. by means of the Prevention of Corruption Laws (Amendment) Act (X111 of 1977) said explanation lays down that 'public servant' in sections 161 to 16 and section 409, P.P.C. includes an employee of any corporation or other body or organization set up, controlled or administered by or under the authority of the Federal Government. The wore 'includes' does not denote a definition as it is a word of extension of meaning to situations not contemplated by the original meaning of the words in any way, it is clear that the meaning given in this explanation are meant only for an accused person. If he (an accused person) falls within the meaning assigned to these words in this explanation, he would be considered to be a public servant and would be liable for the penal consequences which this circumstance may entail under the P.P.C. Here, however, the case is one of a complainant and, therefore, we will have to fall back upon the definition of 'public servant' as given in section 21, P.P.C., which lays down that the words 'public servant' denote a person falling under any on of the descriptions after following. For the purpose of the present case, the ninth description is relevant. The said ninth description runs as below:--

"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 Government, or to execute any revenue process,' or to investigate, or to report on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interest, of the Government or to prevent the infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty."

Allied Bank of Pakistan Limited was originally a company registered under the Companies Act, 1913 (VII of 1913) transacting business of banking. By virtue of Banks Nationalization Act, 1974 (XIX of 1974) the said bank was nationalised and its ownership, management and control thenceforth vested in the Federal Government. Relevant provision of the said statute is section 5 which runs as below:-

"Section 5. Transfer and vesting of ownership etc. of banks.--- (1) The ownership, management an control of all banks shall stand transferred to, and vest in, the Federal Government on the commencing day.

(2) All shares in the capital of a bank held by persons other than the Federal Government, a Provincial Government, a corporation owned or controlled by the Federal Government or the State Bank shall stand transferred to, and vest in, the Federal Government on the commencing day, free of all trusts, liabilities and encumberances.

(3) The vesting of any shares in the Federal Government under subsection (2) shall not affect the rights inter se of a shareholder and any other person who may have an interest in such shares and such other person shall be entitled to enforce his interest, against the compensation awarded to the share-holder under Section 6.

(4) The safety of all deposits in banks shall stand guaranteed by the Federal Government.

(5) The provisions of this Act and the vesting of the shares of the banks in the Federal Government thereunder shall not in any way affect the status of the banks as bodies corporate under the Companies Act, 1913 (VII of 1913)."

It is clear from the above provision that all the shares in every banking company now vest in the federal Government and the ownership of all the banks is also with the Federal Government. Not only that, the management and control of all the banks too vests now in the Federal Government.

3. The Manager of the branch of a bank is an officer whose duty is as such officer to receive and keep any property (which in the present case are deposits of money by the account holders) and expend any money on behalf of the Government. Whenever there is any shortage in the funds of the bank, whether due to commission of a crime in the bank or otherwise, his duty is to investigate and at any rate to make a report of the same to his higher authorities and since the Government has guaranteed the safety of all the deposits under subsection (4) of section 5 of Banks Nationalization Act, 1974, the said investigation and, report would be in respect of the pecuniary interest of the Government. Furthermore, the Manager has to maintain through staff provided to him registers like cash receipt register, token register, ledger books, authenticate said registers and books and keep all the cheques drafts received and en-cashed in his bank. These documents too relate to the A pecuniary interests of the Government. This is not all. The Federal, Government who has ownership, management and control of all banks vesting in him, acts through Manager to secure safety of the deposits of account holders. It is the Manager who is to see, that there is no embezzlement of funds of the bank by an unscruplous employee of the bank through fraud and forgery and there is no fraudulent withdrawal through forged cheques of money of the account holders by any criminal, from the public. He has also to guard against non-payment back to the bank of loans obtained from the bank by way of overdraft or otherwise. If anything like that happens, deficiency in the funds of the account holders is to be made up by the bank and finally by the Government. To guard against any such happening. it is the duty of the Manager, to prevent the infraction of any banking law or banking practice and procedure which have hardened into rules of law to protect pecuniary interest of the Federal Government. For the above reasons, in my opinion, the Manager of a branch of a bank is a "public servant".

4. In any way, the Manager/AVP most clearly falls under the last portion of the ninth clause of section 21. P.P.C. which lays down that every officer in the service or pay of the Government is a "public servant". Since under section 5(1) of the Banks (Nationalization) Act.1 1974, the ownership of banks without any doubt whatsoever vests in B the Federal Government, all the funds of the bank from which the Managers are paid belong to the Federal Government. The officers of the bank who perform functions in regard to the affairs of the Federal Government are servants of the Federal Government. and since they draw their pay and salary also from the said Government, they are "public servants". The Manager of a branch of a bank owned by the Federal Government is an officer in the service and pay of the Government and is also a "public-servant" under last portion of clause ninthly of section 21, P.P.C. It was so held in Gul Amir v. The State and 2 others 1979 P Cr. L J 995.

5. Another aspect of the definition of the "public servant" as made in clause ninthly, of section 21 of the Penal Code has been highlighted in some decisions and it is necessary, to see whether the Manager is covered by the same or not. In Reg. Ramajira v. Jivba Jira and another 1875 Bombay High Court Reports 1, while interpreting clause ninth of section 21 of the Indian Penal Code it was observed:-

"Two things must combine to meet the requirements of the clause ninthly of section 21 of, I.P.C. in the first place, there must be an officer; and, in the second, he must be under an obligation to perform one of the duties there enumerated.

We must, therefore, see who is an officer. It is clear that it is not every one who has to .do with Government in pecuniary matters, or who has to render accounts, onto submit documents, who is a Government officer. Seeking the help of English law, we find, in Bacon's Abridgment at Volume 6, page 2, the article headed Of the nature pf an officer and the several kinds of officers,' commencing thus "It is said that the word 'officium' principally implies a duty, and, in the next place, the charge of such duty; and that it is a rule that where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer." And the next paragraph goes on to say: "There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, & C. The first of these paragraphs implies that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercitive powers, or who is appointed to represent the State in its relations to individual subjects. This-is the central idea; and applying it to the clause which we have to construe, we think that the word "officer" there means some person employed to exercise, to some extent, and in certain circumstances, a delegated function of Government. He is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those of someone who is so armed."

Again in Ahad Shah v. Emperor A I R 1918 Lah. 152(2) it was held:-

"It is not enough that a person should be in the pay or service of Government to constitute him a public servant within the meaning of section 21 (ninthly) I.P.C. He must also be an 'Officer'. That expression is not, of course, to be restricted to its colloquial meaning of a Commissioned or non-Commissioned Officer; it means a functionary or holder of some "officium" or office. The office may be one of dignity or importance; it may equally be humble. But whatever its nature, it is essential that the person holding the office, should have in some degree delegated to him certain functions of Government."

Again in Karim Bakhsh v. The State P L D 1962 (W.P.) Lah. 144, it was laid down:-

"Under clause Ninthly mentioned above, a public servant must be an officer and his duties mentioned in the same clause are to be performed by him as such officer. To satisfy this clause, it is not enough that a person is shown to be an employee, but he must further be an officer, which means that he must be holding some office or "officium", humble or exalted, high or low, in the sense that he must exercise, to some extent, a delegated function of the Government and he must in this behalf be either himself armed with some authority or a representative character, or his duties must be immediately auxiliary to those of someone who is so armed. In the case of Ahmad Shah v. Emperor A I R 1918 Lah. 152 the famous observations of West J., which are frequently cited in this connection, were quoted with approval, bringing out the central idea in the concept of a public servant as envisaged in clause ninthly of section 21, Penal Code, that 'apart from his being in the pay or service of the Government, he must be an officer, i.e. holder of an office. The office may be of dignity and importance or it may be humble; but whatever its nature, it is essential that the person holding the office should have in some degree delegated to him certain functions of the Government."

From 1-1-1974, the date of commencement of Banks Nationalization Act, 1974, banking in the country became the exclusive function, of the Government. The Managers, who do the business of banking on the spot are given by the said supreme authority the necessary regulating and corrective powers to perform this function efficiently and they represent the State in relation to individual customers of the bank. In doing duties relating to the business of banking, they perform the delegated functions of the Government. The managers thus satisfy the test laid down in the abovementioned three cases too and are, therefore "public servants" as defined in clause ninthly of section 21 of the Pakistan Penal Code, 1860.

6. For all the above reasons, I have no hesitation in holding that, the 'complainant who is a Manager of A.B.L. Gole Cloth Branch, Faisalabad a nationalized bank, is a "public servant" within the meaning of said words as used in proviso (aa) to section 200, Cr.P.C. and since the complaint made is in writing and has been made by a public servant, in discharge of his official duty, it is not necessary to examine the said complainant and the question whether prima facie any schedule offence is made out against the respondents may be seen from the contents of the complaint itself.

7. I have gone through the complaint and have also seen the documents attached thereto. Offences under section 406/420/34, P.P.C. are prima facie made out against Liaqat Ali, Muhammad Ali and Muzafar Ali respondents while against Sanaullah offence under section 420/34. E P.P. C. only appears to be made out. The offence under section 420/34. P.P.C. is not triable by this Court. Let, therefore, Liaqat Ali, Muhammad Ali and Muzaffar Ali respondents be summoned for 16-9-1985 through bailable warrants of arrest in the sum of Rs.10 lacs each with one surety in the like amount each to stand their trial for the offence) under section 406/34, P.P.C. in this Court.

Case to be put up on 16-9-1985.

M.Y.H Accused summoned.

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