P L D 1988 Lahore 802 (PLP)

This constitutional petition filed by the State calls in question the order of the trial Magistrate dated 19‑9‑1979 and the revisional order of the learned Additional Sessions judge Muzaffargah dated 17‑4‑1980 holding that respondents Nos.1 and 2 were not public servants and as such the case against the respondents was not triable by the Special Judge, Anti‑ Corruption. 2 Facts giving rise to this petition, briefly stated, are that on a report made by the Administrator, Central co‑operative Bank Ltd. , Muzaffargarh alleging embezzlement and misappropriation of a sum of Rs.3,50,007.61 in Karor Branch of the Bank. a case under sections 467/468/471/474 and 408, P.P.C. was registered at police station Karor on 7‑8‑1971. Allegation made in the report was that respondents Nos.1 to 6 were responsible for' misappropriation?? and embezzlement of the amount in question‑ It may be pertinently stated that respondents Nos.1 and 2 were at the relevant time posted as the Managers in the head office of the Central Co‑operative Bank, Muzaffargarh whereas respondents Nos. 3 to 6 were working in different capacities in the Karor Branch of 'the Bank. Respondents Nos. 3 to 5 were Accounts Clerks, respondent No.4 was b Cashier and respondent No.6 was described as a candidate. After usual investigations, an incomplete challan was submitted against respondents Nos.1 to 6 in the Court of Senior Special Judge, Anti‑Corruption, Lahore who vide endorsement dated 10‑5‑1977 entrusted the same to the Special Judge, Anti‑Corruption (Provincial), Multan for trial. It appears that the case was inadvertently sent to the court of Resident Magistrate leiah and it was ultimately transferred to the Court of Rana Waris Ali Khan. Magistrate Section 30, Muzaffargarh in whose Court complete challan was put in against all the respondents including respondents Nos.7 to 14 who were private persons and had allegedly acted in complicity with other respondents.

3. Prosecutor moved an, application before the trial Magistrate for, transfer of the case to Special Judge‑, Anti‑Corruption. Case of the Prosecutor was that Abdul Rahim Khan and Mir Tajjamal Hussain, respondents Nos.1 and 2 herein being the ex‑Managers of the Bank were public servants by virtue of section 65‑B of the Co‑operative Societies Act and the case was, therefore, exclusively triable by a Special Judge. Learned trial Magistrate repelled this contention and took the view that the post of the Manager was not specifically mentioned in the definition of "Officer" contained in section 3(d) of the Co‑operative Societies Act and it was yet to be seen whether of not the Bank Manager fell under the second part 'of the definition viz. "other person empowered under the rules or the Bye‑Laws to give directions in regard to the business of the Society." Learned Magistrate also referred to two Supreme Court cases reported as "Lahore Central Co‑operative Bank v. Pir Saifullah" (P L D 195 S C 217) and "Zainul Abdin v. Multan Central Co‑operative Bank Multan" (P L D 1966 S C 445) and observed that it was held therein that the offices of the Manager and Accountant of the Co‑operative Bank were not offices of public nature. With these observations, learned Magistrate dismissed the prosecutor's application by order dated 19‑9‑1979 holding that the accused persons did not fall in the category of public servants. State challenged this order in a revision but without any success as the same was dismissed by the learned Additional Sessions Judge by a short order dated 17‑4‑1980, operative part of which may be reproduced hereunder:‑ "The point in issue is that Tajammal Hussain and Abdur Rahim Khan accused being ex‑Managers of the Central Co‑operative Bank are public servants, and the case be tried by the Special Judge, Anti‑Corruption. The trial Magistrate has fully discussed the law on the point and I fully agree with him in view of the law laid down in P L D 1959 SC Lah.217, P L D 1966 S C

445. There is no reason to interfere in the impugned order. The revision is dismissed."

4. Validity of the aforementioned orders was brought under challenge in the present constitutional petition. Before proceeding further, it may be noted that although before the Courts below, jurisdiction of the trial Magistrate was objected to on the ground that respondents Nos.1 and 2 being the Managers of the Co‑operative Bank were public servants within the meaning of section 21 P.P.C. and the case was, therefore, triable by Special Judge and not by the magistrate and the impugned orders also related to the status of the said two respondents, objection taken in the writ petition was that all the accused‑employees namely the respondent,‑ Nos.1 t(, 5 were the officers of the Bank for the purposes of section 65‑B of the ?Co‑operative Societies Act and were, therefore, public servant within the meaning of section 21, P.P.C. This precise point was urged at the time of preliminary hearing and the writ petition was admitted to consider the question whether the magistrate "was not competent to take cognizance of this case for the reason that respondents Nos.1 to 5 were public servants within the meaning of section 21 P. P. C. read with section 65‑B of the Co‑operative Societies Act, 1925". During the pendency of the writ petition, however, case against Abdul Rahim Khan and Mir Tajammal Hussain respondents No.1 and 2 was quashed by this Court vide order dated 6‑2‑1984 passed in Cr.Misc. No. 8/ Q / 1982, on the ground that there were no allegations against them in the statements of the witnesses recorded under section 161, Cr.P.C. Present petition qua them was, therefore, treated to have become infructuous and their names were accordingly deleted from the array of the respondents vide order dated 5‑3‑1985. Thus, the question which now remains to be considered is whether respondents Nos.3 to 5 who at the relevant time were serving in different capacities in the concerned branch of the Bank could be considered as public servants $0 as to oust the jurisdiction of the trial Magistrate to try the case against the accused‑respondents.

5. Learned Assistant Advocate‑ General appearing in support of this petition has relied upon the provisions of section 65‑B of the Co‑operative Societies Act, 1925 to contend that respondents Nos.3 to 5 were public servants within the meaning of section 21, P.P.C. and as such the case was exclusively triable by a Special Judge appointed under the Pakistan Criminal Law Amendment Act, 1958. Learned counsel for the contesting respondents, on the other hand, contended that under section 65‑B, only an officer of a Co‑operative Society or a Co‑operative Bank could be deemed to be a public servant whereas respondents Nos.3 to 5 were only petty officials like Accounts‑Clerks and Cashier and as such they could not be described as officers as this term is understood in common parlance. Further submission of the learned counsel was that these respondents did not fall within the definition of the term 'officer' contained in section 3(d) of the Co‑operative Societies Act as they were neither specifically mentioned in that provision nor was there anything on the record to show that any of those respondents was empowered to give directions in regard to the business of the Bank.

6. In order to appreciate the contentions of the learned counsel for the parties, it would be appropriate to refer to section 65‑B of the Co‑operative Societies Act as also to the definition of "officer" given in section 3(d) of the said Act. Section 65‑B which was added by way of amendment in 1966 through Co‑operative Societies (Second Amendment) Ordinance West Pakistan No.XVII of 1966 reads as follows:‑ "Every officer of a society, including a Co‑operative Bank shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code." Clause (d) of section 3 is in the following terms:‑ (d) ?Officer? includes a chairman, secretary, treasurer member of committee or other person empowered under the rules or under the bye‑laws of a society to give directions in regard to the business of such society;"

7. It may be observed that under section 65‑B every officer of a Co‑operative Society including a Co‑operative Bank is deemed to be a public servant within the meaning of section 21 P.P.C. Now, the question is whether respondents Nos.3 to 5 can be said to be the officers for the purposes of section 65‑B. Answer to this question lies in the meaning to be given to the word "officer'. No doubt, the term officer, is defined in the Co‑operative Societies Act but the definition as given in section 3(d) is not exhaustive as it opens with the word 'includes' which is a word of enlargement intended to extend the scope of the word defined. It is a well‑established rule of interpretation that when the word "include" or "includes" is used in any definition, it is intended to enlarge the ordinary meaning of the term defined so as to include such other category of persons who would not normally fall within the definition. The word 'includes'. "has an extending force and does not limit the meaning of the terms to the substance of the definition." Refer (1882) 8 Cal.534 "Nasibun v. Proeosunkar Ghose." Reference may also be made to "Emperor v. Jiand and another" (AIR 1928 Sind 149) wherein it was observed. "It is a well‑known rule of interpretation that the word "includes" Is used as a word of enlargement and ordinarily implies that something else has been given beyond the general language which precedes it; to add to the general clause a species which does not naturally belong to it; State v. Montello Salt Co., 98 Pac. 549". Their Lordships of the Supreme Court of Pakistan in the case of "Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax officer, Chittagong" (P L D 1971 S C 205) also observed that the word "including" or "shall be deemed to include" is very generally used in interpretation clauses in order to enlarge the meaning of words and phrases occurring in the body of the statute." In Dilworth v. Newzealand Commissioner of Stamps (1899 A C 99), the word "include" was construed as follows:‑ "The word 'include, is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statutes, and when it is so used these words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include." The aforementioned principle has also been expounded in "Muhammad Amir Khan v. Government of West Pakistan" (P L D 1966 Lah.111) in the following words:‑ "One of the two words ?means' or includes, is generally employed to define the scope of a word in the interpretation clause of a statute. The former is used to restrict the scope of the word to the "four corners of what is stated in the clause and to deprive it of any other meaning that it may have in the English language. The word ?includes? on the other hand, is used with a view to enlarging the meaning of the word, by also clothing it with the connotation given to it in the interpretation clause in addition to the sense which it conveys in common parlance... "Include' is not used in a sort of a conjunctive sense so as to make only such things correspond to the word ?defined' as answer to the meaning given to the word in the ordinary language as well as the scope assigned to it by the definition. Since the purpose is to extend the scope of the word, it will cover not only cases which are covered by the dictionary meaning plus the meaning given in the interpretation clause, but also by either of them individually. To hold otherwise, is to defeat the very purpose for which the word 'include' is used in the interpretation clause." Reference may also be made with advantage to the following observations in "Kamil Noor Khan v. Controlling Authority" (P L D 1970 Kar. 730): ‑ "It is well settled that the word 'include' is used in an interpretation clause in order to enlarge the meaning of the words or phrases occurring in the body of the Statute or where it is intended that while the term defined should retain its ordinary meaning, its scope should be widened by specific enumeration of certain matters which its ordinary meaning may or may not comprise, so as to make the definition enumerative and, not exhaustive, and when it is so used these words or phrases must be considered as comprehending not only such things as they signify according to the natural import, but also those things which the interpretation clause declares that they should include." ??? 8.???? In view of the for going discussion, it is quite clear that the definition of the term 'officer' given in section 3(d) of the Co‑operative societies Act is neither exhaustive nor restrictive but is very wide and extensive. The fact that it includes a set of people specifically mentioned therein within the meaning of the term defined does not mean that it exhausts the list of persons who could otherwise be considered as officers. There can be no doubt that the term officer apart from the extended meaning given to it by the definition would retain its ordinary meaning as understood in English language. Similar view was expressed. in ?Mst. Tasnim Khawar Shah v. The State" (1976 P.C‑.L.J.1378) though that was a case of a manageress of a Co‑operative Society. In that case, after referring to the Dictionary meaning of the word "officer" it was observed, "In case the word "officer" had been defined under the Co‑operative Societies Act, 1925, only to include a Chairman, Secretary, Treasurer, Member of Committee or other person empowered under the rules or under the Bye‑laws of the Society to give directions in regard to the business of. Such society, the argument of the learned counsel for the petitioner would have carried weight. But the word "officer" has been used in wider terms and besides other meanings it includes a Chairman, Secretary, Treasurer, Member of the Committee or other person empowered under the rules or under the bye‑laws of a Society to give directions in regard to the business of such Society." ????????? In yet another case from Karachi reported as "Ghulam Hussain v. The State:" (1974 P.Cr.L.J. Note 9 at page 6) it was held, "The term officer has a wider concept and is not necessarily confined to the persons shown therein. A peon would also be included in this term. The term 'officer' cannot be treated in its restricted sense but would cover all the persons who are in the employment of the bank."

9. Recourse may now be had to the Dictionary meaning of the word "officer". In Chambers Twentieth Century dictionary, officer, is defined as "one who holds an office" and meaning of office given therein is "a function or duty; settled duty or employment; a position imposing certain duties or giving a right to exercise employment". According to Shorter Oxford English Dictionary, officer is "one to whom a charge is committed, or who performs a function .... one who holds an office, post or place ; a functionary authoritatively appointed or elected to exercise some public, municipal or corporate function." The word 'officer' has been defined in Black's Law Dictionary as in a popular sense, an officer is one holding a position of trust or authority in any kind of organisation ‑ ‑civil, military, political, ecclesiastical or social." The term 'officer, has also been judicially interpreted though in the context of section 21, P.P.C. In "Ashfaq Ahmad v. State" (PLD 1968 Lah.1127), question arose whether Ashfaq Ahmad who was a 'Wasil Baq Nawees' and whose duty it was to realize the land revenue from the lambardars was an officer for the purpose of section 21, P.P.C. It was held that "Although the word "officer" as used in the common parlance connotes the holder or incumbent of an office of authority, yet the definition has been interpreted by judicial authorities to include all incumbents of offices high or low irrespective of their status. "

10. Viewed in the light of the aforementioned principles and the Dictionary meaning of ' the word 'officer', it is quite evident that the respondents Nos.3 to 5 who at the relevant time held the posts of the Accounts Clerks and Cashier in the Co‑operative Bank fell within the ordinary meaning of the term 'officer' and can, therefore. be considered as officers for the purposes of section 65‑B by virtue whereof they are deemed to be public servants within the meaning of section 21, P.P.C. That being so, case was triable exclusively by a Special Judge appointed under the Criminal Law Amendment Act, 1958 as most of the offences for which the respondents were challaned are specified in the schedule. The Magistrate before whom the case is now pending was not competent to take cognizance thereof. Upshot of the above discussion is that the cognizance taken and the proceedings held by the trial Magistrate in the case against the respondents are declared to be without lawful authority and of no legal effect and it is directed that the learned trial Magistrate shall forthwith transmit the said case pending before him to the Special Judge, Anti‑Corruption (Provincial) having territorial jurisdiction in the matter who shall proceed to decide it according to law. Writ petition is thus allowed but with no order as to costs. A.A./S‑300/L??????????????????????????????????????????????????????????????????????????? Petition accepted. ?????????