P L D 1963 Dacca 839 (PLP)

This decision indicates that a Choukidar under section 23 of the Village Self‑Government Act is of the nature of a police officer by reason of power of arrest and as such a confession made in his presence would be inadmissible. This decision is no authority at all for Choukidar being a public servant.

8. The decision in Chand Khan Dafadar and another v. The Crown (I P S C R 21) also indicates that Choukidar is a public servant for limited purpose only. It was held in this decision as under :‑ "Dafadars and Choukidars are not public servants within the definition of section 21 of the Pakistan Penal Code. They are only public servants for the limited purpose laid down in rule 45 of the rules framed under the Village Self‑Government Act, i.e., public servants for the purpose of section 68 (2) of the Cr. P. C. Consequently a Dafadar, not being a public servant within the meaning of section 21, Pakistan Penal Code, cannot be prosecuted under section 161 of the Code or Act II of 1947. Similarly a dafadar being only a public servant for the purpose of section 68 (2) of the Code of Criminal Procedure, he cannot be regarded as a public servant when he is going to remove a nuisance under the orders of President of a Union Board and, therefore, the people who assaulted him cannot be convicted under section 352, P. P. Code."

9. This decision, as above, which is a Division Bench also indicates that the Choukidar can be regarded as public servant only for the limited purposes laid down in rule 45 of the rules framed under the Village Self‑Government Act, namely, public servants for the purposes of section 68 (2) of the Code of Criminal Procedure. Further, in the case it was directly held that a Dafadar or a Choukidar not being a public servant within the meaning of section 21 of the Pakistan Penal Code, they cannot be prosecuted under section 161 of the Pakistan Penal Code. This case is very much in point because here also are dealing with the case of a Choukidar prosecuted under section 161 of the Pakistan Penal Code.

10. Mr. Syedur Rahman, learned counsel appearing for the State, has referred to the decision in Ahmed Kabir Dafadar v. The State ((1957) 9 D L R 323) which again is a Division Bench decision of this Court. It was held in this decision as under: --‑ "A Dafadar or a Choukidar is a public servant within the definition of section 21 of the Pakistan Penal Code and each of them has the right to arrest in some circumstances any thief and is empowered to place or keep him in confinement. Reading together sections 23 and 24 of the Village Self Government Act, a Defadar or Choukidar come within clause (7) of section 21 of the Pakistan Penal Code."

11. This decision in 9 D L R 323 makes the Choukidar a public servant because he has powers of arrest and confinement. In other words, clause (7) of section 21 of the Pakistan Penal Code has been taken to be the test. Clause (7) of section 21 reads as under :‑ "Seventh‑Every person who holds any office by virtue of which he is empowered to place or keep any person in con finement." Our present Choukidar, appellant No. 1, seems to be only a Choukidar in the literal sense, namely, watchman of the L. S. D. godown. There is nothing to show that he has powers of arrest and confinement, which has been taken to be the test in the latest Division Bench decision, as cited by the learned counsel for the State.

12. The aforesaid decision only broadened the category of public servant without overruling the previous decisions of this Court by including in the category of public servants a Choukidar with powers to keep any person in confinement. There is nothing to show that the powers of this Choukidar when watching the godown was any ‑more than that of an ordinary citizen to protect property, in his care.

13. The position being, as above, the decision in 9 D L R as cited by the learned counsel for the State, cannot turn the Choukidar in question into a public servant. The next question is whether the appellant Choukidar could be categorized under clause (9) of section 21 of the Pakistan Penal Code which reads as under:‑ "The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely :‑ Ninth.‑Every officer whose duty it is, as such officer, to take, receive, keep or expand any property on behalf of the Govern ment, 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 interests of the Govern ment, or to prevent the infraction of any law for the protection of 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."

14. I have not been able to lay my hands on any decision which characterized a Choukidar as an officer. If he was an officer, than alone, perhaps, he could be placed in the category of officers having to protect the pecuniary interest of the Govern ment. The godown in question being a Government one and the paddy stored which he was to guard being property of the Govern ment, it might be argued that he might come in the present category of officers.

15. The portion stating "officer in the service or pay of Government" might also in that case be partially attracted, though there would remain a lot of doubt as to whether his jobs was one of public duty. It is also difficult to see how he can be regarded as a delegated functionary of the Government. The circumstances being as above, the Choukidar appellant Suresh Chandra Chakma cannot be regarded as an officer under clause (9) of section 21 of the Pakistan Penal Code. The result is that the appellant cannot be categorized either under clause (7) which speaks of "Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; or under clause (9) which speaks "Every officer whose duty it is, as such officer, to take, receive, keep or expand any property on behalf of the Government, or to make any survery, assessment or contract on behalf of the Government, or to execute any revenue‑process, or to investigate, or to report, or any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests 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 rem unerated by fees or commission for the performance of any public duty; he is neither a person of the category of clause (7) nor an officer of the category of clause (9) in the circumstances of the present case. That being so, he is not a public servant at all and the contention of Mr. Chowdhury thus succeeds.

16. So far as the other appellant goes, namely, Dharma Charan Das, he not having abetted a public servant, cannot be held guilty under section 165‑A of the Pakistan Penal Code. It appears also that there is no finding by the trial Court as to hove this appellant abetted. The learned Judge has stated that he assisted without stating in what way his action amounted to assistance.

17. Coming to the merits, it appears that the sanction was for an offence under section 420 of the Pakistan Penal Code ; the F. I. R. also mention section 420 and the charge‑sheet also indicates section 420 of the Pakistan Penal Code as the offence.

18. Exhibit 3, the anonymous letter, supposed to be the foundation of the case, does not mention the name of appellant Suresh Chandra Chakma, the Choukidar. The evidence in the case is more or less in the nature of accomplice evidence. Only one independent witness has been examined and that is P. W.

5. He is supposed to have corroborated accomplice evidence but he was a witness not summoned and actually procured from the Courtroom to support the prosecution case when the father was not available because of his illness. What this witness P. W. 5 has said, goes one degree farther than what P. Ws. 3 and 4 stated. namely, he saw even the measuring of the paddy which is not even the case of P. Ws. 3 and 4.

19. Further, the evidence, as disclosed, shows the case to be more in the nature of extortion, an offence under section 383 of the Pakistan Penal Code, namely, of money secured through threat and not a case under section 161 of the Pakistan Penal Code.

20. Under those circumstances, the appeal is allowed, the (conviction and sentence of the two appellants are set aside and "they stand acquitted of the charge against them. Their bail bonds fare cancelled. S. B./A. H. Appeal accepted.