P L D 1960 Dacca 1049 (PLP)

SATTAR, J.‑--The appellant, who was the Secretary of the Faridpur District Soldiers' Board, was put on trial before Mr. A. M. Hossain, Special Judge, Dacca Division at Faridpur, to answer a charge under section 161 of the Pakistan Penal Code, read with section 5 (2) of Act II of 1947. The learned Judge found him guilty of the charge and sentenced him to suffer rigor ous imprisonment for two years and also to pay a fine of Rs. 1,000, in default rigorous imprisonment for another six months.

2. The allegations against the appellant were that one Abdur Rahman Bhuyan, who was an ex‑serviceman, took lease of some property from the Evacuee Property Management Committee, Dacca, but could not get possession of the said land on account of the interference of one Denger Bhuyan. Abdur Rahman Bhuyan then approached the appellant and requested him for police help in obtaining possession of the said land. The appellant then asked Abdur Rahman Bhuyan to give him some money and a she‑goat in lieu of the help which he promised to render in connection with securing the possession of his land. It was agreed that Abdur Rahman Bhuyan would pay Rs. 15 and a she‑goat. Abdur Rahman Bhuyan, however, in the meantime contacted P. W. 14 Md. Yunus, an Inspector of Police of the D. A. B. Depart ment, who arranged for a trap and the accused was arrested after he had received Rs. 15 in three five‑rupee notes which were marked by P. W. 16 M. S. Haque, Sub‑divisional Officer, Sadar, Faridpur, paid by Abdur Rahman Bhuyan. The she‑goat was seized from the residence of the accused, which he had already taken delivery of earlier. Moulvi Md. Yunus after due investigation, after obtaining sanction for the prosecution of the appellant, submitted charge‑sheet against him under section 161 of the Pakistan Penal Code, read with section 5 (2) of Act II of 1947.

3. The defence of the accused was that he was innocent and the money recovered from him was, he suspected, planted in the money‑bag and kept in his pocket by his enemy Syed Ahmed, the Head Clerk of the Board.

4. The learned Judge on a consideration of the evidence in this case has come to the finding that the appellant as the Secretary of the District Soldiers' Board received Rs. 15 and the she‑goat from Abdur Rahman Bhuyan as bribe to show him some favour and has thus disbelieved the defence of the appellant that the money was planted in his money‑bag and kept in the inner pocket of his coat.

5. Mr. A. M. Sayem on an earlier occasion, when this appeal was taken up for hearing, advanced some arguments on merits and referred to the evidence and his contention was that the story revealed in the prosecution evidence was unbelievable. The learned Advocate also on that occasion raised some legal objections challenging the conviction of the appellant and jurisdiction of the learned Special Judge to try the appellant. His contention in this connection was that the appellant was not a public servant within the meaning of section 21 of the Penal Code. As at that time we felt that the evidence on record was not sufficient to determine the question raised by the learned Advocate for the appellant, as it involved questions of fact also, we directed the trial Court under section 428 of the Criminal Procedure Code to record further evidence which either of the party wanted to adduce on this point. The Court below after recording the additional evidence which the parties adduced has sent back the record.

6. At the hearing today, Mr. Sayem also very vehemently argues that on the additional evidence adduced by the prosecution it is not established that the appellant is a public servant. He has further contended that the evidence on the side of the defence on the contrary shows that the appellant as the Secretary of the District Armed Services Board was not a public servant and was the employee of the Board which was more or less an autonomous body.

7. We have it on the evidence of the prosecution witnesses that the cost of administration of the Board is met by the Central Government and the Provincial Government on fifty‑fifty basis, that is, half of it is borne by the Central Government and the other half by the Provincial Government. The Board consists of official and non‑official members and the Secretary of the District Soldiers' Sailors' and Airmen's Board is appointed by the Secretary of the Provincial Board. But before that a preliminary selection is made by the Provincial Board which goes for final approval to the Central Board and, after the approval of the Central Board is received, the appointment is made by the Secretary of the Provincial Board. If the approval of the Central Board is not given, then, according to the evidence of D. W. 2, Major M. T. Hossain, who at present holds the up‑graded post of the Secretary of the Provincial Board, the appointment cannot be made by the Secretary of the Provincial Board.

8. The question, therefore, that arises is whether on these facts it can be said that any of the clauses of section 21 of the Pakistan Penal Code is attracted so as to make the appellant, who was the Secretary of the District Soldiers', Sailors' and Airmen's Board of Faridpur, a public servant within the meaning of the section. It is contended by the learned Dy. Legal Remembrancer that on the facts established in this case the case of the appellant comes under the 9th clause of that section. It is argued that since the Government pays for the administration of this Board, it must be held that the money that is spent by the Board is the money of the Government, and furthermore, since the employees of the Board are paid from the funds provided by the Government, they are employees in the service or pay of the Government. This argu ment of the learned Dy. Legal Remembrancer is sought to be met by the learned Advocate for the appellant by pointing out that the money that is paid by the Government is paid by way of contri bution and, after the contribution is paid, it becomes the money of the Board and does not continue to remain the money of the Government. The learned Dy. Legal Remembrancer has also pointed out that the evidence in this case clearly establishes that the Board is under the control of the Government and further that in respect of holding departmental enquiries against the employees the rules framed by the Government in respect of the same apply. It cannot be disputed that the Government exercises sufficient control over the Board. So far as the application of the rules in regard to the departmental inquiries against the employees of the Board are concerned, the evidence on which the learned Dy. Legal Remembrancer relies is furnished by Exh. 20 in this case. This is a letter written by the Dy. Secretary of the Home Department of the Government of East Pakistan addressed to the Secretary of the Provincial Soldiers', Sailors' and Airmen's Board, East Pakistan. The letter is dated 2nd April 1958. It appears from that letter that one Mvi. A. K. Nur Mohd. Chowdhury, a clerk of the District Soldiers', Sailors' and Airmen's Board, Dacca, was dismissed by the Secretary, Provincial Soldiers', Sailors' and Airmen's Board, East Pakistan, and he preferred and appeal to the Provincial Government and in that connection this letter was written. It will not be out of place to quote a portion of the letter which runs as follows :‑

"The undersigned is directed to say that the staff of the District Soldiers', Sailors' and Airmen's Board are paid by the Provincial Government and Central Government on a 50 : 50 basis ; in other words, their salaries are paid by the Government and accordingly the rules framed by the Government in respect of holding departmental enquiries should apply to their cases as well. Under Article 181 of the Pakistan Constitution Act, no Government servant can ordinarily be dismissed, removed, or discharged from service or reduced in rank unless he has been given a reasonable opportunity of showing cause as to why the action proposed to be taken against him should not be taken. But in this particular case this procedure was not followed and accordingly the action taken by him was not regular." It is evident that the Dy. Secretary, in this letter, thought that the salaries of the employees of the District Soldiers' Board were paid by the Government and, therefore, the rules governing departmental enquiries against Government employees also apply in the case of the employees of the Board.

9. Mr. A. M. Sayem in support of his contention has relied on a decision in the case of Ramniwas Sharma v. The State (A I R 1951 Ajmer 76). In that case, an employee of the Soldiers' Board at Ajmer was convicted under section 161 of the Indian Penal Code and in the revision application filed against the order of conviction it was argued that the petitioner was not a public servant, and, therefore, the conviction could not be maintained. The evidence in that case so far as the management of the Board was concerned was to the following effect; "The D. Cor. is the ex officio Chairman. The Government also probably contributes to the District Soldiers' Board Fund ..It appears . . . . . that grants in‑aid from Government were received for the upkeep of the Board . . . . . The members of the Board consists of both official and non‑official members including military personnel. The aim of the Board is to look after the welfare of the soldiers' ex‑soldiers and their families. The functions of the Board are, to advise and to arrange. The Civil Service Regulations are applied to servants of the Board by analogy, but they are not strictly applicable. The accused was not allowed subsistence allowance because the Civil Service Regulations are not strictly applicable. It is correct that once it so happened that there were no funds . . . . and so we had to borrow from Sri Seth Bbag Chandji Soni. I do not know of any statute governing the formation or functions of the Soldiers' Board." On this evidence, the learned Judge who disposed of the revision application came to the conclusion that the 9th clause of section 21 of the Penal Code was not attracted to the case.

10. We have not been supplied with any papers containing sanction for constituting these Boards. So far as we could gather, there is no statute authorising the formation of these Boards. From the mere fact that the entire expenses of the Board are met from the contributions made by the Central Government and the Provincial Government, it cannot be said that the employees of the Board spend Government money or that the employees are in the service or pay of the Government. It is not disputed that the money that is paid by the Government is paid by way of contribution and it appears so from the Budget Head under which it is paid. We are unable to agree with the learned Dy. Legal Remembrancer that simply because the Government exercises some control over the Boards, the employees of the Boards are employees in the service or pay of the Government. So far as Exh. 20 is concerned, which we have quoted in extenso, it contains, in our view, an expression of opinion rather than a rule of law. As has been pointed out in the evidence in the decision referred to earlier, the rules governing departmental enquiries were applicable to these cases by analogy rather than anything else. We, therefore, cannot agree with the learned Dy. Legal Remembrancer that the 9th clause of section 21 of the Pakistan Penal Code is attracted in this case and, therefore, it must be held that the appellant was not a public servant within the meaning of the section.

11. In view of our finding that the appellant was not a public servant, his conviction must be set aside.

12. The appeal is, therefore, allowed. The conviction and sentence of the appellant are set aside, and the appellant is dis charged from his bail bond.

13. Our decision, however, does not mean that we have come to the conclusion that the appellant is innocent, because we have not, in view of the preliminary objection, decided the case on merits. The Government may, therefore, take any action against the appellant, if it so chooses, in accordance with law. ISPAHANI, C. J.‑I agree. K. B. A. Appeal allowed.