1986 PLP 1080 (MLD)

Amir Bux Jatoi for the State. Date of hearing: 17th April 1986. By judgment, dated 31‑3‑1983 Special Judge Anti‑Corruption (Provincial), Karachi convicted Moosa Karim, Muhammad Ali and Muhammad Nazir under sections 161, 162, 471, 109 and 34, R.P.C. and sentenced each one of them to R.I. for eight months and fine of Rs.5,000 or in default R.I. for two months. All the three convicts have challenged the judgment by two separate appeals. Criminal Appeal No‑15 of 1983 has been filed by Moosa Karim and Muhammad Ali and Criminal Appeal No.21 of.1983 has been filed by Muhammad Nazir. I propose to dispose both the appeals by this common judgment. The factual background of the case as mentioned in the impugned judgment is as follows. Appellant Moosa Karim was working as a Clerk in Sind Small Industries Development Corporation, 'Karachi when he was caught red‑handed while issuing release orders for Bidi Leaves to unauthorised persons on this charge he was sent up in the Court of Special Judge Anti‑Corruption and was convicted by the said Court. However, during investigation of the said case against him it came to light that he was responsible also for dishonestly preparing more release orders for Bidi leaves namely, orders bearing Nos. 7303, 7304, 7305 each, dated 1‑10‑1976, They were allegedly issued in the name of Messrs Nazir an Were alleged to have been sold to co‑accused Muhammad Ali through another co‑accused Muhammad Nazir, for Rs.400 per order. Accordingly three' F.I. Rs. were registered by the Anti‑Corruption Police which, after usual investigation, however, resulted to challaning of all the three appellants in a single case in the Court of Special Judge, Anti‑Corruption. As stated above, the learned Special Judge convicted the appellants by the impugned judgment. I have heard the arguments of the learned counsel for the appellants and learned State counsel and have also gone through the authority cited in course of the arguments. The authority relied upon on the appellants behalf is reported as Moosa Karim v. The Sate PLD 1985 Kar.

720. It is ‑the unanimous view of the learned counsel for the parties that the facts of the above reported case are at par with those of the present case. As in the reported case, so also in the present case, Moosa Karim was employed in the Small Industries Corporation at the relevant time (i.e. at the time of the commission of the offence). It was held in the above, reported case that Moosa Karim being employee of the Sind Small Industries Corporation was not public servant. It was therefore, contended by the appellants' counsel that the Special Judge who has convicted the said Moosa Karim had no jurisdiction and, therefore, the impugned judgment was void. As for the other two appellants it was submitted that they being private persons were tried by the Special Judge only because they were associated with Moosa Karim in the commission of the alleged offence. According to the learned counsel since Moosa Karim was not triable by the Special Judge the other two co‑accused Muhammad Ali and Muhammad Nazir were also not triable by the Special Judge and accordingly their conviction was also illegal. This view is also shared by the learned State counsel. It goes without saying that on the date of commission of allege offence appellant Moosa Karim was employed in Sind Small Industries Corporation. As pointed out above, it has already been held in the above reported case that the employee of the said corporation does no A fall within the definition of "public servant" as given in section 2(b) of Pakistan Criminal Law (Amendment) Act, 1958. Consequently it further held that trial of the said employee by Special Judge was without jurisdiction and hence void ab initio. For reasons given in the said reported case the conviction of Moosa Karim who was admittedly the employee of Small Industries at the time of commission of alleged offence in the instant case, by the Special Judge is also without jurisdiction and hence void. So far co‑accused Muhammad Ali and Muhammad Nazir are concerned, they are admittedly private persons. Normally they are triable by ordinary Court and the Special Judge Anti‑Corruption who has jurisdiction only in respect of public servant was not competent to try the said accused. However, as they were associated with Moosa Karim in the commission of the alleged offence, they were tried jointly with him by the Special Judge Anti‑Corruption on the assumption that Moosa Karirtr was a public servant. Now that Moosa Karim not being publi servant at the time of commission of alleged offence was not triable by the Special Judge, the trial of the other two co‑accused by the said Court was also without jurisdiction and hence void. For above reasons both the appeals are allowed and the appellants are acquitted. The appellants being on bail their bail bonds stand cancelled. S. A. Appeal accepted.