2003 PLP 705 (MLD)

5. Coming on section 5(2) of the P.C.A., 1947, the learned Advocate argued that the complaint does not allege the misappropriation of articles dishonestly or fraudulently or conversion for personal use of any property entrusted to applicants as public servant. Even otherwise it is not the case where the valuables are alleged to have under the control of the applicants as public servants. Thus the contents of the complaint do not constitute offence under section 5(2) of the P.C.A., 1947. He also argued that the contents of the complaint if constitute offence under section 167, Cr.P.C. then also it is not the scheduled offence and the learned Special Judge could not assume the jurisdiction over it.

6. Syed Tariq Ali, learned Federal Standing Counsel agreed with the applicants' learned Advocate on all the points and did not defend the proceedings conducted and the orders passed by the learned Special Judge.

7. The allegation against the applicants is that they broke open the locks of the complainant premises and looted valuable article's worth Rs.40,000 to Rs.45,000 from there. Assuming the allegation to be correct the ingredients of section 165, P.P.C. and section 5(2) of the P.C.A., 1947 are not satisfied, section 165, P.P.C. reads as under:‑‑ "

165. Public servant obtaining valuable thing, without consideration from person concerned in proceedings or business transacted by such public servant.‑‑‑Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain, for himself, or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or' business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate. or from any person whom he knows to be interested in or related to the persons so concerned. shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. " Bare look at the section shows that it relates to the delivery and receiving of valuable things. The presence of those elements is essential. Taking or looting the goods or things forcibly does not fall within the ambit of section 165, P. P. C.

8. Section 5(2) of the Prevention of Corruption Act 1947 provides punishment for criminal misconduct, coming under any of the clause of the subsection (1) which is reproduced below:‑‑ "

5. Criminal misconduct.‑‑‑‑(1) A public servant is said to commit the offence of criminal misconduct‑‑ (a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other persons, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or (b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, likely concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise concerts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do. or (d) if he, or by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or (e) if he, or any of his dependents, is in possession, for which the public servant cannot reasonably account, or pecuniary resources or of property disproportionate to his known sources of income. " Clauses (a), (b) and (d) require the delivery and receipt of the goods whereas clause (c) speaks of dishonest or fraudulent' misappropriation or conversion to his own use, any property entrusted to him or under his control as public servant. So far clause (e), it relates to the possessing of pecuniary resources or property disproportionate to the known sources of income. None of these clauses brings the things looted or robbed from one premises. Neither the articles were delivered; to or received by the applicant nor they were ever entrusted to them or, given under their control as public servant. Nor the present is a case of possessing pecuniary resources or properties disproportionate to their known sources of income. Therefore, the complaint filed by Haji Yakoob does not disclose the commission of offence under section 165, P.P.C. and/or section 5(2) of the P.C. A., 1947.

9. The offence punishable under section 167, P.P.C. is not scheduled offence, therefore, the learned Special Judge (Central‑II) Karachi could not entertain complaint in respect thereof nor he could take cognizance of it.

10. Consequently the proceedings before the learned Special Judge (Central‑II), Karachi against the applicants are quashed being without jurisdiction. With this order the application is disposed of. N.H.Q./M‑440/K Proceedings quashed.