P L D 1965 (W (PLP)

This revision petition by the Municipal Committee, Jalalpur Jattan, is directed against the order, dated the 17th of May 1962, of Mr. Mohabat Khan, Special Judge, Gujrat, who acquitted Fazal Hussain respondent of a charge under section 409, Pakistan Penal Code, read with section 5 (2) of the Prevention of‑Corruption Act, 1947.

2. Fazal Husain respondent was a Treasurer of the Municipal Committee, Jalalpur Jattan, district Gujrat. At the time of his appointment he furnished a bond Exh. P. M. executed by him and his two sureties, Muhammad Alam and Muhammad Husain, to the effect that if Fazal Husain failed to make the deposit of the fortnightly income of the Municipal Committee received by him in the Government Treasury within four days of the receipt of such amount, he and his two sureties would be liable to indemnify the Municipal Committee jointly and severally to the extent of Rs. 8,

000. The prosecution case‑ is that the respondent had misappropriated Rs. 21,671‑11‑9 as he failed to deposit that amount in the Treasury after receiving it from Muhammad Din, Senior Clerk of the Municipal Committee, and Octroi Inspectors.

3. After having recorded evidence of some of the witnesses of the prosecution, the learned Special Judge, without going into the merits of the case, acquitted the respondent on the ground that he was not a public servant and, in any case, since under the bond Exh. P. M. the liability to compensate the Municipal Committee to the extent of Rs. 8.000 had been accepted by the respondent and his two sureties, the liability of the respondent was of a civil nature only and he could not be criminally prosecuted for misappropriation of any amount.

4. Learned counsel for the petitioner has strenuously contended before me that the respondent is certainly a public servant and that merely because he executed a bond for indemnifying the Municipal Committee up to the limit of Rs. 8,000, he was not absolved from his liability to be criminally prosecuted for the embezzlement or misappropriation made by him. In support of his contention that the respondent is a public servant although he was a Treasurer of the Municipal Committee, the learned counsel for the petitioner has referred me to the definition of "public servant" given in clause tenth of section 21 of the Pakistan Penal Code, which is to the following effect. "Every officer whose duty it is as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district." Explanation I of section 21 reads as follows: "Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not." It is not disputed that in the course of his duties as Treasurer the respondent received money relating to the scular common purpose of the town of Jalalpur Jattan. He is, therefore, certainly a public servant as contemplated by section 21 of the Penal Code.

5. Learned counsel for the petitioner has further cited Crown v. Abdul Rehman (P L D 1950 Lah. 361) and Emperor v. Suleman Abba (A I R 1935 Born. 24) in support of his aforesaid contention. The former case related to some misappropriations made by the Head Treasurer of the District Treasury, Campbellpur. This Head Treasurer had been appointed by a contracting treasurer and not by the Government. His case was found by the High Court to be covered by clause ninth of section 21 of the Penal Code and he was held to be a public servant. If a treasurer who was not appointed by the Government and was actually the employee of a contracting treasurer, who was not at all a Government servant, has to be considered as a public servant because of the receipt of the money on behalf of the Government, a treasurer who actually an employee of the Municipal Committee and receives income of the Municipal Committee is obviously a public servant within the meaning of clause tenth of section 21 of the Penal Code. In the latter judgment it was held that the toll contractor as well as his servant must be held to be public servants as defined in the Penal Code. Needless to say, if a toll contractor, even though he is not a Government servant or the employee of any Municipal Committee, can be held a public servant within section 21, clause tenth, Penal Code, the respondent, who is an employee of the Municipal Committee, cannot be regarded other than as a public servant.

6. Learned counsel for the respondent does not contest the proposition that the respondent in his capacity as a Treasurer of the Municipal Committee, Jalalpur Jattan was a public servant. Nor does he dispute the correctness of the assertion made by the learned counsel for the petitioner that the execution of a bond by the respondent did not absolve him from his liability under the criminal law for any misappropriation of the moneys received by him on behalf of the Municipal Committee. Learned counsel for the respondent however, contends that this is not a fit case to be remanded for re‑trial to the Special Judge, inasmuch as much time has elapsed since the order of acquittal was passed by the learned Special Judge. I see no force m this contention. The order of acquittal of the respondent was made on the 17th of May 1962. Thereafter, the petitioner moved the District Magistrate, Gujrat, for filing an appeal against the order of the acquittal of the respondent on the 15th of October 1962. The District Magistrate refused to file an appeal against the respondent's acquittal on the 16th of November 1962. Thereafter, this revision petition was filed in this Court on the 17th of April 1963. The delay between the impugned order and the filing of the revision petition is not at all excessive. Besides, the amount that the respondent is said to have embezzled is Rs. 21,671‑11‑9 which is not a small one. In the circumstances. I am not satisfied that it is not a fit case for ordering re‑trial of the respondent by the Special Judge. I, therefore, accept this revision petition and remand the case to the Special Judge, Gujrat, for re‑trial according to law. K. B. A. Petition accepted. Re‑trial ordered.