1979 P Cr (PLP)

Nooruddin for Respondent No.

3. Date of hearing : 31st January 1979. By the present application under section 561-A, Cr. P. C., petitioner Gul Amir seeks quashment of proceedings in the case of State v. Gul Amir and 2 others under section 409/468 P. P. C. pending in the Court of Joint Civil Judge & First Class Magistrate, Nawabshah. The co-accused Masood Ahmad and Abdur Razzaq have been impleaded as respondents. I have heard Syed Madad Ali Shah, Advocate, for the applicant /accused and Mr. Nooruddin Sarki Advocate for the respondent/accused Abdur Razzaq respondent/accused Masood Ahmad is absent and not represented, but since no order adverse to him is being passed I have not thought it fit to adjourn this case by reason of his absence. I have also heard Mrs. Salima Nasiruddin, Advocate for the State who has supported this application.

2. The brief facts of the case are that applicant Gal Amir was working as Manager in the Habib Bank Limited, Barhoun Branch, Shahdadkot. A report was registered by S. H. O., Daur Police Station on 10th May 1977, on a written complaint by Second Vice President, S.A.A. Jafri of Habib Bank (Limited alleging that the applicant had committed an offence of misappropriation and forgery in the performance of his duties as Manager of a Branch of the said Bank. Investigations were completed and a charge-sheet was submitted in the Court of Joint Civil Judge, Nawabshah on 6th June 1978, for trial of applicant Gul Amir and respon dents Masood Ahmad and Abdur Razzaq on charges under sections 409 and 468, P.P.C.

3. The only point that has bee urged before me by Syed Madad Ali Shah and Mr. Nooruddin Sarki is that the applicant being an employee of a nationalized bank was a public servant within the meaning of sec tion 2 (6) of the Pakistan Criminal Law Amendment Act XL of 1958 and the offences under sections 409 and 468, P.P.C. appearing in the Schedule to this Act divest all Courts of jurisdiction to try the case save the Court of Special Judge created and established under the said Act. In order to show that the applicant was a public servant a reference to section 2(b) of the Act is apt. By this provision of law banks after their nationalization came under the control and management of the Federal Government and all employees of such banks became public servant within the meaning of section 2 (b) of the Act. In such regard and reference may be made to subsection (1) of sections 5 of Banks (Nationalization) Ordinance I of 1974 which reads as follows: - "The ownership, Management and control of all banks shall stand transferred to and vest in the Federal Government on the commencing day." This Ordinance came into force on 1st January, 1974. Section 12 of this Ordinance provides that all officers and other employees of a bank shall continue in their respective offices and employments on the same terms and conditions, including remuneration and rights as to pension and gratuity. The two provisions clearly show that as from 1st January 1974 the ownership, management and control of all the banks vest in the Federal Government. This would mean and imply that all the funds of the bank from out of which the employees were paid belonged to the Federal Government. Clause (9) of section 21 of the Pakistan Penal Code, which defines "public servant" provides for every officer whose duty it is, as such officer, to take, receive, or expend any property on behalf of Government, and every officer in the service or pay of Government is a public servant. There can be no manner of doubt that the managers of banks, which are owned and managed by the Government would be clearly covered by clause (9) of section 21 of the Pakistan Penal Code.

4. In these circumstances it is clear that applicant Gul Amir is a public servant within the meaning of section 2 (b) of the Banks (Nationalization) Ordinance, 1974 and therefore in fact offences commit, led by him in relation to performance of his duty are triable by the Court: A of Special Judge alone. The Joint Civil Judge and First Class Magistrate before whom the charge-sheet was submitted by S. H. O. Daur Police Station has no jurisdiction to proceed with this case.

5. The next question that deserves consideration is as to the relief, which should be extended. Mrs. Salima Nasiruddin made a faint attempt to persuade me to transfer this case to the Court of Special Judge. Since there is no transfer application before me I do not think it would be proper to order transfer of the case. In the circumstances while I have quashed the proceedings pending before the Joint Civil Judge and First Class Magistrate, I wish to make it clear that it shall be open to the investigating agency to submit a regular charge-sheet before the Special Judge appointed under the Pakistan Criminal Law (Amendment) Act XL of 1958. In case such a charge sheet is submitted the Special Judge can proceed with the case and decide the same. Proceedings quashed.