1984 P Cr (PLP)

(a) ................... ............. (b) Offences punishable under sections 408 to 409, 417 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation. thereto or connected there with, when committed by any public servant as such or by the person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such." "Section 21 P. P. C.-The words "public servants" denote a person falling under any of the descriptions hereinafter following, namely :- First:-Omitted. Second:-Every Commissioned Officer in the Military Naval or Air Forces of Pakistan while serving under the Central Government or any Provincial Government ; Third:-Every Judge ; Fourth:- Every Officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any documents, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court ; and every person specially authorised by a Court of Justice to perform any of such duties ; Fifth: -Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant; Sixth: -Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority; Seventh: - Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; Eighth: --Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; Ninth: -Every Officer whose duty it is, as such Officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Govern ment, or to execute any revenue-process, or to investigate, or to re port, on any matter affecting the pecuniary interests of the Govern ment, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the fraction of any law for the protection of the pecuniary interests of the Govern ment and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty ; Tenth: -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; Eleventh: -Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election." it is thus obvious that the conditions precedent for taking cognizance by the learned Senior Special Judge are (i) that alleged offence must be specified one. (ii) that the accused must be a public servant. (iii) that a public servant charged with an offence specified in the schedule must also have acted as such at the time of the com mission of crime. The questions for determination, therefore, are as to whether Raja Munawar Ahmad appellant was a public servant and that he had acted as such at the time of commission of the alleged offence? I find that the prosecution case was that the appellant being a counsellor to the then Chief Minister was a public servant. The appellant when examined under section 342, Cr. P. C., denied that he was a counsellor to the then Chief Minister. His plea was that he functioned in a purely political capacity and as such, was not public servant. In these circumstances the onus was on prosecution to prove or at least place on record material to show that at the time of the commission of the alleged offences the appellant was a counsellor to the then Chief Minister. I, find that the prosecution did not care to prove the capacity of the appellant through notification or oral /documentary evidence. There is nothing on record to indicate that the appellant did share executive, pecuniary or punitive powers or control with the Government over the affairs of the State. The terms and con ditions of his service, if any, and the duties to be performed have not been brought on record. Further there is nothing on the record to show that while writing letters to the Secretaries using car from Chief Minister's pool and making trunk calls on telephones, be 'was acting as a public servant. Mere exercise of authority or use of Government property will not convert a private person into a public servant. The prosecution has failed to lead evidence of the office held by the appellant at the time of the commission of the alleged offence. To my mind, the trial Court has wrongly interpreted the provisions of section 21, P. P. C. For all these reasons, I am of the view that the learned Senior Special Judge could not have tried the appellant for the commission of the alleged offences. In this view of the matter, the convictions recorded and the sentences award ed by the learned Senior Special Judge, Anti-Corruption to the appellant are, hereby set aside for lack of his jurisdiction to try the appellant. M. Z. M. Appeal accepted,