1990 PLP 418 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of a learned Judge of Balochistan High Court dismissing a Criminal Revision Petition filed by petitioner by which he sought to challenge the order of Special Judge, Anti‑Corruption, Balochistan dated 5‑6‑1988. dismissing his application under sections 249‑A and 265‑K of the Code of Criminal Procedure. By that application, petitioner sought acquittal in the case against him under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 which was pending trial before the learned Special Judge, Anti -Corruption, Baluchistan. That case was consequence of a complaint lodged by Anti‑Corruption Authorities that the petitioner which posted as Store Keeper/Incharge Stores, Yaro, as a public servant, had criminally misappropriated stores worth Rs.4,47,350 jointly with two others. While this case was pending trial before the learned Special Judge, Anti- Corruption, petitioner sought acquittal through tire aforesaid application under sections 249‑A and 265‑K of the Code on the ground that being an employee of Afghan Refugees Organization, he does not fall within the definition of public servant under Section 21 of the Pakistan Penal Code and case against hire cannot be tried by the learned Special fudge, Anti‑Corruption, Balochistan Learned Special Judge rejected this plea on the ground that no doubt the Afghan Refugees Organization Balochistan is not a statutory Body, but since "it is clearly mentioned in section 2 of the Prevention of Corruption Act, 1947 that for the purpose of this Act, "public servant" means a public servant as defined in section 21 of the Pakistan Penal Code and includes an employee of any Corporation or other Body or Organization set up, controlled or administered by or under the authority of the Central Government and therefore an employee of Afghan Refugees Organization which is a Federal Government Department is a public servant in the meaning of Prevention of Corruption Act, 1947. On this view of the case learned Special Judge rejected the petitioner's application by the order dated 5‑6‑1988. It was against this order that petitioner filed a Revision Application which was dismissed by the learned Single Judge in the High Court by the impugned judgment as he agreed with the view the prevailed with the learned Special Judge, Anti‑Corruption. This is what the learned Judge in the High Court observed: "I have considered arguments addressed in the case. There is nothing on record to dislodge the factual position concerning control and exercise of authority by Federal Government. Accordingly legal aspects have been properly discussed and accurately decided by trial Court. There does not appear to be any error, defect or illegality in the impugned order, warranting interference within the scope of revisional authority vested in this Court:" Mr. Tariq Mahmood, learned counsel appearing in support of the petition submits that the Courts below have not appreciated the fact that the services of the petitioner were transferred from Afghan Refugees Organization, Gulistan District to Logistic Budget to the UNHCR Fund by the order of the District Administrator, Afghan Refugees Organization Gulistan District dated 1‑5‑1985, petitioner cannot be termed as a public servant in the meaning of the Prevention of Corruption Act, 1947. In support of the plea that petitioner's services were transferred to UNHCR Fund with effect from 1‑5‑1985 learned counsel sought to rely on the order of District Administrator, Afghan Refugees Organization, Gulistan District which reads as under:' "Dated Saranan, the 1st May, 1985. No.4/Estt‑ARO/82. The District Administrator, Afghan Refugees Orgn: Gulistan district is hereby pleased to transfer the services of Mr. Muhammad Yusuf son of Abdul Nabi, Store‑keeper (Ballics/ Kheras) Main Store Yaru from the Logistic Budget to the UNHCR Funds, with immediate effect at the fixed monthly salary of Rs.900 (Rupees nine hundred only) per month. (2) Mr. Muhammad Yusuf Store‑keeper shall perform his duties of Store Keeper (Bullies/Kheras) Main Store Yaru as usual. (Sd.) District Administrator, Afghan Refugees, Gulistan." Learned counsel also relied on a certificate issued by the District Administrator, Afghan Refugees, Gulistan which is to the following effect: Certified that Mr. Muhammad Yousuf, Store‑keeper (under suspension with effect from 1‑11‑1980) is borne on the strength of UNHCR and he is being paid from the UNHCR Fund vide District Administrator, Afghan Refugees Organization, District Gulistan at Saranan Order No.4/Estt‑ARO/82, of 1st May, 1985. (Sd.) District Administrator, Afghan Refugees, Gulistan." On the other hand, learned Assistant Advocate‑General whom notice was issued has produced a certificate which reads as under:‑‑ This is to certify that Mr. Muhammad Yousaf son of Mr. Abdul Nabi was appointed as a Store‑keeper in Afghan Refugees Organization, Balochistan vide Commissioner Afghan Refugees Organization, Balochistan's Order No.23‑EI/82 (ARC), dated the 25th September,' 1982 and he was a public servant. He was drawing pay as a Government Employee from UNHCR Fund placed at the disposal of Afghan Refugees Organization, Balochistan. Quetta Dated (Sd.) the 24th May, 1989. Commissioner Afghan Refugees Organization, Balochistan." We rind that the conclusions reached by the Court below have been based on certain certificates which by themselves cannot be treated as evidence, and it is therefore appropriate that the question whether petitioner is a public servant within the meaning of section 21 of the Pakistan Penal Code or section of the Prevention of Corruption Act, 19:17, ought to be decided at tire trial after full opportunity is afforded to the parties to lead evidence on this issue raised in the case learned Assistant Advocate‑General is also of the same vices. We, therefore, convert this petition into an appeal and allow the appeal with the result that the impugned order of the learned Special Judge as well as the impugned judgment of the High Court arc set aide with the direction that the aforesaid question should he dealt with and decided by the learned Special Judge, Anti‑Corruption, as a trial in the manner cited above. M.A.K./M‑1027/S Case remanded.