1980 P Cr (PLP)

(iii) Under the P. L. D. B. Service Rules, 1974 the employees are the employees of the P. L. D. B. and therefore are not Government servants ; (iv) Even though appointments of some of the officers of the Board is made by the Government, the employees continue to be employees of the Board, as their salaries are paid by the Board ; (v) The P. L. D. B. is a body corporate and is a commercial organi zation and is, therefore, not charged with any public responsibility ; and (vi) None of the clauses of section 21, P. P. C. cover the case of the employees of the P. L. D. B.

6. The learned counsel who appeared on behalf of the State has argued that a bare reading of the Act (Act III of 1974) would show that the activities of the Board are not different from the activities of a Govern ment department in the sector of Livestock Development and that the Board was only a specialised agency looking after the activities of the Government in the, areas assigned to the Board. He was of the view that the employees of the Board are covered by clause ninth of section 21, P. P. C.

7. Mr. Mumtaz Hussain, the learned counsel in Petition No. 605.‑Q/77 has argued that the absence of the provision declaring the employees of the P. L. D. B. as public servants is not accidental. Since provisions to that effect exist in a large number of laws, creating such autonomous corpora tions, an absence of such a provision in the P. L. D. B. Act (Act III of 1974) can be treated only as intentional. He has stressed that the Board has to act as a commercial organization and that is why its employees could not be declared as public servants. The learned counsel has also argued that the guiding principle under section 21, P. P. C. is to see whether the person was exercising any delegated function of the Government. For this pur pose he has referred to the case of Karim Bakhsh v. The State (P L D 1962 Lah.144).

8. Sh. Nisar Qutab the learned counsel in Criminal Misc. No. 193 8/77 has traced the history of the amendments in the law on the subject to support his contention that the omission of the provisions relating to public servants in the P. L. D. B. Act, 1974 was deliberate and not accidental.

9. Pakistan Criminal Law (Amendment) Act, 1948 defined a public servant as a person who was declared as a public servant under section 21, P. P. C. or was an employee of a railway or of a body corporate to be notified by the appropriate Government. This Act was repealed and replaced by a law of the same name in 1958. This law was amended in 1965 by Act XII of 1965 and the law thus amended provided for employees of a body set up by the Central Government. Ordinance V of 1977 made a further amendment and included in its ambit the employees of bodies set up, controlled or administered by or under the authority of the Central Government.

10. The learned counsel has argued that the absence of the words relating to Provincial Government in the successive laws is significant. He has argued that the amendments in the law show that the Legislature was conscious of the fact that such corporations were not covered by section 21, P. P. C. 11. 1t is correct that P. L. D. B. is not a creation of the Central Government. Therefore, section 2 (b) of the Pakistan Criminal Law (Amendment) Act, 1958, as far as it deals with the bodies set up by Central Government, is not applicable. It is also clear that the Punjab Livestock Dairy and Poultry Development Act, 1974 does not contain any provision which declares the employees of the P. L. D. B. to be public servants. It is also correct that the employees of the Board cannot be termed as Government servants, even though their pay scales are comparable to the National Pay Scales, available to Government servants only.

12. On the other hand, the provisions of section 21, P. P. C. particularly clause Ninth require careful scrutiny in order to determine whether the activities of the P. L. D. B. and consequently of its employees are such as to be covered by it. The opening words of the clause are `Every Officer whose duty it is as such officer to take, receive, keep or expend any property on behalf of the Government, or

13. This provision has been interpreted on a number of occasion. Secretary of a Soldiers Board was not treated as a public servant (A. K Muhammad Shamsul Haq v. State) (P L D 1959 S C (Pak.) 242) nor was a clerk of Union Board in absence of any evidence of his functions, Asghar Ali V. State (P L D 1960 Dacca 1049). On the other hand, an Accountant of Agricultural Development Bank was treated as a public servant (Abdul Kralek v, State (1968 P Cr. L J 869). This shows that the deter mination whether any functionary falls within definition of a public servant depends on the facts of the individual case. guided of course by certain general principles, like the ones laid down in the case of Karim Bakhsh.

14. The Punjab Livestock, Dairy and Poultry Development Board came into being under a Provincial Act of 1974 off the same name it was to be a body corporate. The management and affairs of the Board vest in a Board of Directors. Five senior officers of the Government of the Punjab as well as the Managing Director will be the Directors of the Board. Not less than four in number shall be the non‑official members of the Board. There will b e a Chairman of the Board. The Chairman and the non‑official members will be appointed by Government. Section 4 (2) of the Act states that "The Board shall, in discharging its functions, act on national and commercial considerations, subject to such directions as Government may give to it from time to time." Provisions of section 1 (3) and some provisions of section 13 (Powers, Duties and Functions of the Board) also relate to the interest of the Government. They read as follows: "1.‑(3) It (this Act) shall apply to all projects in the public sector mentioned in the schedule." "13 (2) In particular the Board may in order to carry out the purposes of this Act‑ (a) form and establish companies in respect of any of the projects mentioned in the Schedule ; (b) manage on behalf of Government shares held by Government in the issued capital of the companies referred to at (o) above ; (c) . (3) The Board shall also be responsible for‑‑‑ (a) .......................... (b) ......................... (c) presenting to Government for its approval scheme in respect of projects mentioned in the Schedule (d) implementing and executing scheme approved by Government. (e) . (f) managing on behalf of the Government an such terms and conditions as the Government may specify, such farms, project and activities as Government may from, time to time, decide to hand over to the Board. Sections 14 and 15 deal with the finances of the Board. They permit the Board to negotiate and obtain loans from local and international financing institutions provided that the foreign loans will require the prior approval of the Government. Three of the sources of the Board Fund are invest ments made by Government, grants made by Government and loans obtained from Government. 15 The winding‑up clause (section 22) provides for the appointment of an administrator in the event of dissolution of the Board, but provides that ' Any properties and assets left over after all the liabilities of the Board have been discharged shall vest in the Government and all Liabilities left un-discharged after all the properties and assets of the Board have been disposed of shall become the liabilities of the Government." [Section 22 (3)]

16. The above brief picture of some of the provisions of the law shows the extent of the interest of the Government in the affairs and management of the Board, both pecuniary and functional. For all intents and purposes Government has created an organisation, for looking after its functions on behalf of the Government iii the sector of livestock development. This is very much a delegated function of the Government, as laid down in the case of Karim Bakhsh.

17. Government money by way of Government investments, grants and loans are to be placed at the disposal of the Board. Then it is common knowledge that loans from international financiary institutions are given only on the guarantee furnished by the Government. Govern ment farms and projects could be handed over to the Board, apart from implementing and executing schemes approved by Government, all these functions are reminiscent of functions of a Government department. The performance of these functions certainly entails taking, receiving, keeping or expending any property on behalf of Government.

18. Regarding the provisions of winding‑up clause, Mr. Mumtaz Hussain, has referred to the case of Chief Secretary, Government of the Punjab v. Commissioner of Income‑tax, Lahore (P L D 1976 Lah,258), in order to suggest that vesting of the property of an entity dissolved by Government (Thal Development Authority in the case referred to), does not change the complexion of the entity at all. I am afraid that this case is distinguishable from the facts of the present case for more than one reason. In the Chief Secretary's case the issue before the Court was whether the Thal Development Authority was a local authority: In the `course of the hearing the Commissioner of Income‑tax had raised a legal plea challenging the jurisdiction of the High Court on the ground that the T. D. A. having been dissolved, and the Chief Secretary having been appointed the administrator the dispute had become a dispute between the Province and the Federation and was, therefore, within the exclusive jurisdiction of the Supreme Court under Article 184 of the Constitution. It was held by the High Court that the Administrator is a distinct entity separate from the Provincial Government under the law. It cannot be said that the liability of the Authority if any, under the Income‑tax Act had thereby devolved on the Provincial Government "

19. As stated above the case referred to does not provide the answer that Mr. Mumtaz Hussain is looking for. What we are concerned with in the present case is the issue, whether the employees of the P. L. D. B. in the given provisions of the law governing the P. L. D. B.. are public servants or not.

20. It is `also necessary to refer to the provision of section 4 (2). It provides that Board in discharging its functions will act on national and commercial considerations. The reference to national considerations cannot be dismissed as inconsequential. It certainly. entails public responsibilities, which ordinarily is a function of the Government. In the light of the above discussion, I have no hesitation in holding that the employees of the Punjab Livestock, Dairy and Poultry Development Board are public servants in the light of section 21 of the P. P. C.

21. As stated above some of the petitioners have taken separate pleas pn facts of the individual cases against them.

22. Amir Muhammad was an accountant. There are allegations that he abetted his co‑accused Saeed Yusuf in commission of a number of offences. The learned counsel has referred to the inspection note recorded by Manager Finance saying that ledgers were not maintained and that accounts had to tie reconstituted. It has been urged on behalf of Amir Muhammad that he had not prepared any accounts and there fore was not liable. It has also been stated that not a single witness has deposed against the petitioner, therefore, there was no possibility of the case ending in conviction.

23. I have gone through the copies of the statements of the witnesses recorded during investigation Except for the statement of Yusuf Kamran, there is no mention of the petitioner in the statement of any of the witnesses. Even Yusuf Kamran talks of a voucher having been prepared in the hand of the petitioner.

24. The petitioner joined service on 18th May, 1975 and left on 24th August, 1976, on completion of his contract, with a good conduct discharge from his superiors. Even the complaint from the Managing Director, against Saeed Yusuf on the basis of which whole investigation started makes no mention of the petitioner Amir Muhammad.

25. Considering the above circumstances, there is no possibility of this case ending‑in conviction. The petitioner may not be made to face the agony of a trial unnecessarily. Relying_ on the judgment of the Supreme Court in the case of Maula Bux and 8 others (1977 S C M R 292), the petitions of Amir Mohammad are accepted and the proceedings quashed.

26. There are three cases against Dr. Wajid Baseer Sheikh. One involves over payment in respect of purchase of Millat Poultry Farms and over payments for renovations of the farms. The other two cases relate to buying a referigerator at a higher price and taking it away and mis appropriation of two fans that belonged to the P. L. D. B. Dr. Wajid Baseer was the Project Manager. He has stated that payments for the purchase of the farm was made by the Headquarters Office and that engineering works were the responsibility of the engineering staff and not of the Project Manager. Regarding the referigerator, he has stated that it was purchased at a time when the import of referigerators was banned and was purchased on the basis of the lowest quotation. Moreover, it had not been taken away by him but .was still functioning at the farms. The case regarding the electric fans has been instituted at the instance of a store‑keeper who had been proceeded against by him earlier departmentally.

27. Mohammad Hasan Sheerazi was a co‑accused in the case relating to the alleged overpayment of price of the farms. His petition. for quashment was accepted by the High Court in Crl. Misc. No. 465‑Q/77, holding that he was a bona fide vendor. It has been argued .that the case of the petitioner being no different from that‑ of Mohammad Hasan Sheerazi, the petitioner deserves the same consideration.

28. As far as‑ the charge against the petitioner regarding excess pay ment for the farm is concerned, it is not necessarily the same as that of Mohammad Hassan Sheerazi. Yet the fact that Dr. Wajid Baseer Sheikh was nowhere involved in the payment, the payment being made directly by the Headquarters office, with whom allegedly the deal was struck directly, the case of the petitioner would deserve the same consideration. The learned counsel has referred to the basis of calculation of the price that has been also referred to in Sheerazi's case, but I think that is of no importance, considering that the petitioner had no hand in its assessment or the payment.

29. In respect of the charges relating to the referigerator and the two fans, the learned counsel applied for and argued for additional grounds on the basis of the evidence that had already been recorded in these cases. The storekeeper and Dr. Riaz have been examined as witnesses. They have stated that the referigerator is still working in the farms in proper condition. Regarding the case of fans, apart from the fact that the case may have been motivated by being even with the petitioner on account of the departmental action initiated against the Store Supervisor, Mohammad Ashraf. Evidence has come on record from the mouth of Mohammad Ashraf that the fans had been entered in the register and were then taken away by the petitioner. This is contrary to the allegations that the fans were misappropriated at the stage of their purchase and were never entered in the stock register. A most interesting circumstance has emerged from the testimony of Mohammad Ashraf. He has stated' that the fans had been issued to Dr. Wajid Baseer Sheikh on his request, as he was to hold a private function at his house. The period during which these fans were allegedly required by Dr. Wajid Baseer Sheikh, comes by calculation to be the month of January, when fans are the last requirement for amusing the guests in these parts.

30. In view of the above circumstances, it is obvious that there i no material against the petitioner Dr. Wajid Baseer Sheikh, on the basis of which a conviction could be possible. Again relying on the case of Maula Bux and 8 others the proceedings against Dr. Wajid Baseer Sheikh must be quashed. His petitions are, therefore, accepted and proceeding quashed.

31. Ahmad Ghazali was Project Manager, Cholistan. There is a case of overpayment of a comparatively small amount of Rs.570 which was allegedly made over and above the proper cost of construction of a room at a tube‑well site for the installation of the same tube‑well. Mian Abdur Rehman of a firm called Boremaster is being proceeded against alongwith his co‑accused who are employees of the P: L. D. B. for overpayment of over one lakh rupees.

32. The learned counsel for Mian Abdur Rehman has stated that his client had undertaken the work as a special case and for national con siderations as no one was willing to. go to the far‑flung area of Cholistan, where huge amounts had to be incurred for mobilisation of equipment alone. I am afraid, this controversy could not be settled except ‑by examining the evidence. that may be produced in the case. That could appropriately be done best before the trial Court.

33. The cases of Majid A. Sheikh and S. A. Qureshi and of Masood Ahmed are similar in so far as they had only been dealing with the officers of the P. L. D. B. as contractors. Masood Ahmad had built a ‑freezer track for the Meat Complex at Sihala and Majid A. Sheikh and S. A. Qureshi had arranged publicity for the enterprise. They are accused of being recipient of payments more than were due and had to that extent are alleged to have conspired with and abetted the public servants concerned. Their cases also deal with accounts and could be settled only at the trial.

34. Cases of Mohammad Tariq and M. A. Sohail are similar to those of the above contractors, except for the fact that these petitioners have filed civil suits in respect of the alleged overpayments. The learned counsel has stated that in fact further amounts are due to the petitioners. The learned counsel has pleaded that the proceedings may be quashed as the dispute is only of a civil nature. In the alternative, it has been requested that the criminal cases may be stayed until the civil suits are finalized. I am afraid neither of the prayers can be accepted. These cases are not such where claims are being forced through criminal proceedings. On the other hand, certain public servants are being proceeded against under Anti‑Corruption Laws. These contractors may or may not be guilty of the offences, they have been charged with, but this could be determined only at the trial.

35. The result of the above discussion is that all the petitions except for those of Amir Mohammad and Dr. Wajid Baseer Sheikh fail and are hereby dismissed. The proceedings in Crl. Misc. No. 155‑Q/77, 202‑Q/77. 203‑Q/77, 204‑Q/77, 205‑Q/77 and 206‑Q/77 and in Crl. Misc. No. 581‑Q/77, 608‑Q/77 and 609‑Q/77 are quashed. Order accordingly.