P (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal by Government against an order of the Sessions Judge of Campbellpur, by which he acquitted the respondent, Abdul Rehman, who had been convicted by Sardar Muhammad Akbar Khan, Magistrate, 1st Class, under section 161 of the Penal Code and sentenced to six months' rigorous imprisonment. The respondent was the head trearurer at the District Treasury, Campbellpur, and in that capacity he is alleged to have received from one Ghulam Rabbani an illegal gratification of Rs. 5 on 13th August 1948. According to the evidence, Ghulam Rabbani had to purchase a draft from the treasury but since the respondent put obstacles in his way, he went to the Treasury Officer, Mr. Spence and complained to him. It was then decided to mark a five‑rupee currency note, to give it to Ghulam Rabbani to be paid as illegal gratification to the respondent and then to catch the respondent red‑handed. The plan succeeded and the respondent was found in possession of the marked currency note after Mr. Spence had been informed that the money had been paid by Ghulam Rabbani who in consideration of the illegal payment had been permitted to deposit money for the purchase of a draft. The respondent does not deny that the marked currency note was recovered from the double‑lock cash iron safe of which lie was in charge but suggests that in those days one of his functions also was to exchange Indian currency notes for the Pakistan notes and that some one might have a even him the note in question which is an Indian note to be exchanged for a Pakistan note. The Magistrate who tried the respondent found the case against him proved on the merits but the learned Sessions judge has acquitted him on the ground that he is not a public servant within the meaning of section ‑21 of the Penal Code. As the evidence on this part of the case was rather scanty, we decided to use our powers under section 428 of the Code of Criminal Procedure in taking additional evidence in the interests of justice by‑ examining a competent official from the Financial Commissioner's office. According to that evidence the head treasurer can be appointed and dismissed by the contracting treasurer only with the consent of the Deputy Commissioner. His duties are to receive all moneys on behalf of Government and to maintain a correct account of all such receipts. The moneys received or paid by the contracting treasurer or by his agents and employees such as the respondent, are received and paid on behalf of Government. Out of the public revenues allotted as commission to the contract ing treasurer the treasurer must get a minimum salary, the contracting treasurer being competent to pay him more from his own resources. This evidence is based on certain Standing Orders of the Financial Commissioners which are mentioned in the evidence of Mr. Zahur Ahmad, Inspector of Treasuries, Punjab Government, was examined by us. There can therefore, be no doubt that the respondent was an officer whose duty it was as such officer to take, receive or keep any property on behalf of the Crown. He could also be said to be an officer in the service or pay of the Crown or remune rated by fees or commission for the performance of a public duty. Accordingly, he was a public servant within the meaning of clause (ninthly) of section 21 of the Penal Code. The cases of Modun Mohun (I. L. R. 4 Cal. 376) and Bhagwati Sahai (I. L. R. 32 Cal. 664) relied on by the learned counsel for the respondent to support the argument that, the respondent was not a public servant are distinguishable,‑because in the former the money was received by the podder on behalf of the Bank of which he was an employee and not on behalf of Government, and in the latter the person concerned was appointed by the Sub‑Registrar and was paid out of an allowance fixed for the Sub. Registrar without any restriction on his powers to employ the staff for his establishment. In the present case the position is wholly different because the District Trea sury, where the respondent was employed, is a Government Treasury where all moneys are received by the contracting treasurer or his employees and servants on behalf of Government. It is true that a fired amount out of the public revenues is allotted to‑ the contracting treasurer as his commission or fees for the work that he performs, and that with the consent of the Deputy Commissioner he is competent to employ his own ser vants, but that does not make the contracting treasurer himself or his agents and servants working at the treasury anytheless public servants. The designation and salary of the members of the contracting treasurer's staff, including the treasurer, is prescribed by the rules; the place where they work is a public office; and the functions they discharge are public functions. I have, therefore, no doubt that the respondent, while performing his duties as head treasurer, was a public servant and that the receipt of money as illegal gratification by him amounted to an offence under section 161 of the Penal Code. On the facts there can hardly be any doubt. Ghulam Rabbani is a respectable businessman who had not the, slight est reason to involve the respondent in a false charge unless that charge was well founded. Before the money was paid he together with several other persons complained to Mr. Spencer and shortly afterwards the marked currency note was found in the possession of the respondent. Ghulani Rjabbam's evidence is definite and unequivocal, and though he is the person who paid the amount by way of illegal gratification, his position is not that of any ordinary accomplice. His evidence receives confirmation from his own complaint to Mr. Spence before the money was passed and the recovery of the marked note from the respondent's possession. I am, therefore, satisfied that the respondent was rightly found by the trial Magistrate guilty of an offence under section 161 of the Penal Code and that he has been wrongly acquitted by the learned Sessions judge, as even on Mr. Spence's evidence he could have been found to be a public servant. The order of acquittal is set aside, and the respondent is convicted under section 161 of the Penal Code and ordered to undergo rigorous imprisonment for one month and to pay a fine of Rs. 50 or to undergo two weeks rigorous imprisonment in default. Appeal accepted. MUHAMMHD SHARIF, J.‑I agree. A.H.