P L D 1964 Dacca 240 (PLP)

SATTAR, J.‑The appellant Md. Halim alias Md. Quayum has been convicted under sections 419 and 420 of the Pakistan Penal Code by Mr. A. F. M. Ahsanuddin Chowdhury, Special Judge, Rangpur, and sentenced to rigorous imprisonment for one year under the former section and to rigorous imprisonment for two years under the latter section and to pay a fine of Rs. 1000 in default to suffer rigorous imprisonment for one year under section 420, P. P. C. The substantive sentences under sections 419 and 420 of the Pakistan Penal Code have been directed to run concurrently.

2. The case against the appellant was that he personated himself as Md. Quayum who entered Railway service as fitter cooli but died shortly after joining Saidpur Workshop after the partition. The appellant personating himself as Md. Quayum worked in the place of the said dead employee Md. Quayum and drew salaries etc., from June 1949.

3. The defence of the appellant was that his name is Md. Quayum and he was not guilty.

4. In this case Mr. Abu Hussain Sarkar who appears for the appellant has taken a preliminary objection which touches the jurisdiction of the Special Judge who tried and convicted the appellant. It has been contended by Mr. Sarkar that his trial by the Special Judge was without jurisdiction inasmuch as a Railway employee is not a public servant within the meaning of section 21 of the Penal Code for the purpose of sections 419 and 420, Pakistan Penal Code. Section 2, clause (b) of the Criminal Law Amendment Act no doubt provide that a public servant means a public servant as defined in section 21 of the Penal Code, but subsection (4) of section 137 of the Railways Act lays down that notwithstanding anything contained in section 21 of the Penal Code a Railway servant shall not be deemed to be a public servant for any of the purposes of that Code except those mentioned in subsection (1). Under this subsection, that is subsection (1), every Railway servant shall be deemed to be a public servant for the purpose of Chapter IX of the Penal Code. Sections 419 and 420 of the Pakistan Penal Code do not fall with in Chapter IX of the Pakistan Penal Code and in that view of the matter the trial of the appellant by the Special Judge on the assum ption that he was a public servant was without jurisdiction. In this connection it may also be usefully pointed out that originally the provision of section 2 of the Pakistan Criminal Law Amendment Act was that `public servant' included a public servant as defined in section 21 of the Pakistan Penal Code and also every Railway employee, or employee of such organisation or body corporate as might be notified in the official Gazette by the appropriate Government. The concluding part of this section by which Railway employees were included within the definition of public servant was omitted in the Criminal Law Amendment Act, 1958. It, therefore, clearly follows that the trial of the appellant for offences under sections 419 and 420, P. P. C. by Special Judge cannot be said to be within the competence of the said Judge as under section 5 of the Criminal Law Amendment Act read with the Schedule as offences committed under these sections by a public servant are only triable by a Special Judge. In that view of the matter the conviction and sentences of the appellant cannot be sustained in law. We have not advisedly gone into the merits of this case and our decision setting aside the conviction of the appellant and his sentence will not be understood to mean that he is not guilty of the offence charged against him. The result, therefore, is that this appeal is allowed. The conviction and sentence of the appellants are set aside. He is discharged from his bail bond. SIKANDAR ALI, J.‑I agree. S. Q./K. B. A. Appeal allowed.