P L D 1962 (W (PLP)

Sh. Muhammad Shafi for Appellant. Saeedur Rehman for A.G. for Respondent. Date of hearing : 21st November 1961. The appellant, Karim Bakhsh, who has been convicted by the Special Judge, Bahawalpur, under section 161, Pakistan Penal Code, and section 5 (2) of the Prevention of Corruption Act of 1947 and sentenced for each, to the concurrent sentences of nine months and two years' rigorous imprisonment, respectively, was put on trial on the following accusation: ‑ "It is alleged by the prosecution that you, Karim Bakhsh accused, being the employee of the Pak Military Land and Cantonment Service, Bahawalpur, as Land Supervisor, and, therefore, a public servant, on 13‑11‑57 demanded and accepted Rs. 50 as illegal gratification from Ghulam Hussain P. W. for not producing him before the police when he was detected by you while taking away the earth from the protected area belonging to your department and that you thereby committed the offence punishable under section 161, P. P. C. and section 5 (2) of the Prevention of Corruption Act of 1947. "What have you to say to this accusation 7" The answer he gave was: "It is true that I was Land Supervisor in the above department, but it is incorrect that I took any illegal gratification from Ghulam Hussain P. W. I claim to be tried."

2. The prosecution case against the appellant was that he had caught P. W. Ghulam Hussain, cartman, on the 11th of November 1957 in the act of removing earth from the land belonging to the department of Pakistan Military Lands and Cantonment Service and on the threat of producing him before the police demanded illegal gratification of Rs. 200 from him. Ghulam Hussain was, able to produce Rs. 100 at the time, which he brought from his master, Chanan Din, a contractor of the same department, and promised that he would pay the balance in two or three days. Two days later I.e., on the 13th of November 1957, the appellant demanded the balance from Ghulam Hussain, who, Instead of paying it, mentioned the incident to one Muhammad Yar, who in turn took him to Karim Bakhsh P. W., a gardener of the Special Police Department, Karim Bakhsh P. W. contacted Muhammad Manzoor P. W. the Inspector of the Special Police Department, and informed him of the matter. Muhammad Manzoor arranged for the passing of the amount of Rs. 50 to the appellant as demanded by him through P. W. Ghulam Hussain and to catch him red‑handed in the process. This version of the prosecution case as to the actual receipt of the tainted money of Rs. 50 by the appellant was supported by the evidence of P. Ws. Ghulam Hussain, Karim Bakhsh and Inspector Muhammad Manzoor.

3. Before examining the prosecution case on its merits, which have been accepted by the learned Special Judge, leading to the appellant's conviction for the offences mentioned above, It is necessary to consider some legal objections to the trial of the appellant raised by the learned counsel, Sh. Muhammad Shafi, who has argued the appeal on behalf of the appellant. The first objection is that the appellant could not be tried under section 161, P. P. C. or section 5 (2) of the Prevention of Corruption Act of 1947 as he was not a public servant and that his trial and conviction by the learned Special Judge are, therefore, illegal. The second objection raised is that there has been a failure on the part of the prosecution to comply with the mandatory provisions of section 6 (7) of the Pakistan Criminal Law (Amendment) Act (XL of 1958) in not having supplied the appellant with the copies of the previous statements of the witnesses examined for the prosecution at the trial and this omission vitiates the trial.

4. As for the first objection, it is necessary to consider the nature and character of the appellant's duties and the work which he was supposed to do as an employee of the Pakistan Military Lands and Cantonment Service. The accusation against him reproduced above describes him as the Land Supervisor of the Pak. Military Lands and Cantonment Service. In his statement recorded by the learned Special Judge on the 22nd of December 1960 at the end of the prosecution case, the first question put to him was: "Were you employed in the Military Lands and Cantonment Service, Bahawalpur, as a gardener In November 1957 and was it your duty to see that no encroachment was made on the protected land belonging to the Military Service 7 The answer was "yes." P. W. 1 Syed Fakhar‑ud‑Din, a clerk fn the Pakistan Military Lands Service, Lahore Circle, stated fn his evidence that the appellant was a gardener in temporary service, not holding charge of the land of the Military area, but it was his duty to prevent any person from encroaching upon the land or taking earth from it.

5. It is clear that to attract the jurisdiction of the Special Judges appointed under the Pakistan Criminal Law (Amendment) Act (XL of 1958) to hold the trial of a person under section 161 of the Pakistan Penal Code or for offences punishable under the Prevention of Corruption Act of 1947, as mentioned in the Schedule to the Pakistan Criminal Law (Amendment) Act, 1958, the person on trial must be a public servant, which under the definition clause of the same Act means a public servant as defined in section 21 of the Pakistan Penal Code. The question arises: Is the appellant a public servant within the meaning of section 21 of the Pakistan Penal Code? Section 21 gives eleven separate descriptions of a public servant contemplated by it, and the only that can be considered for its application to the appellant in relation to his duties is contained In clause Ninthly of the section, which reads as follows: ‑ "Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Govern ment, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue‑process or to investigate, or to report, on any matter affecting the pecuniary interest of the Government or to make, authenticate or keep any document relating to the pecuniary Interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by the fees or commission for the performance of any public duty."

6. In every cases In which the prosecution proceeds to the trial of a person for offences committed by him on the basis that he is a public servant, it is its duty to show that he Is so, falling under one or more of the descriptions contained in section 21 of the Pakistan Penal Code. In some cases, the point may not admit of any difficulty and a person's designation may by itself speak of his status as a public servant; but where the official status of an accused person is not clear, and more especially in cases where it is denied that he is a public servant, it is the duty of the prosecution not to deal with the point vaguely, by the general description of a person by reference to his designation, but to bring on record the scope and extent of his duties to enable a correct determination of the question whether or not he is a public servant. Under clause Ninthly mentioned above, a public servant must be an officer and his duties mentioned in the same clause are to be performed by him as such officer. To satisfy this clause, it is not enough that a person is shown to be an employee, but he must further be an officer, which means that he must be holding some office or "officium", humble or exalted, high or low, in the sense that he must exercise, to some extent, a' delegated function of the Government and he must fn this behalf be either himself armed with some authority or a representative character, or his duties must be immediately auxiliary to those of someone who is so armed. In the case of Ahad Shah v. Emperor (A I R 1918 Lah. 152), the famous observations of West J., which are frequently cited in this connection, were quoted with approval, bringing out the central idea in the concept of a public servant as envisaged in clause Ninthly of section 21, Penal Code, that "apart from his being in the pay or service of the Government, he must be an officer, to whom Is delegated, by the supreme authority, some portion of its regulating and corrective powers, or who is appointed to represent the State In its relations to individual subjects. He must bean officer, i.e., holder of an office. The office may be of dignity and importance or it may be humble; but whatever its nature, it is essential that the person holding the office should have in some degree delegated to him certain functions of the Government." Every office is an employment, but the converse is not true, that is every employment need not necessarily be an "office".

7. In the case in hand, the appellant has been differently described in the proceedings at the trial as a land supervisor and a gardener. The first seems in this case to be a glorified version of the second. Mr. Fakhrud Din P. W., a clerk in the Pakistan Military Lands Service, speaking from records, referred to the appellant as a gardener only. But it is not the designation of a person that matters for determining whether he is a public servant or not. The guiding factor consists in the duties which are annexed to the job he is holding in the context of the various clauses of section 21 of the Pakistan Penal Code.

8. From the evidence on the record and from the very sketchy description of the duties given by the prosecution in regard to the appellant, I have found it difficult to hold that he is a public servant within the meaning of section 21 clause Ninthly, Penal Code, that Is to say, that he holds any office and was having any delegated authority from the Government or his superiors in the performance of any public duty entrusted to him. This is not to say that a gardener, in no case would be a public servant. In fact, he would be so, if he were entrusted with a public office as such and the nature of his duties entailed the exercise of some powers delegated to him in the performance of public duties. But In the present case, I do not find a satisfactory data to hold that the appellant, in his capacity as a gardener in the temporary service of the Pakistan Military Lands and Cantonment Service, was a public servant.

9. The second objection must also, in the circumstances of the present case, be upheld against the prosecution. Section 6 (7) of the Pakistan Criminal Law (Amendment) Act, 1958, is mandatory in its nature and its non‑compliance, unless satisfactorily explained, would vitiate a trial amounting as it does to the, violation of a statutory safeguard provided in the interest of accused persons. The object of the provision is to enable an accused person, before he is placed on a trial, to know what is the evidence against him, which he should be able to meet. Learned counsel for the State has referred me to a judgment of the Dacca High Court reported as Abdul Mansur Ahmad and another v. State (P L D 1961 Dacca 753), in which it was held that the failure to supply the accused with the previous statements of the witnesses one week before the commencement of the trial, even though it amounts to violation of the mandatory provisions of section 6 (7) of the Pakistan Criminal Law (Amendment) Act, 1958, cannot be regarded as an illegality vitiating the trial, and in absence of prejudice, there cannot be any question of quashing the conviction itself. With all respect, It would be possible to accept this dictum as correct In cases where it may become apparent to the Judge that the failure to comply with the mandatory provisions of section 6 (7) aforementioned was absolutely innocuous and has not prejudiced the accused in any manner. But where there Is nothing to guide the Court on the matter, whether a prejudice has or has not been caused, a presumption will have to be raised in favour of the accused that a prejudice has In fact been caused to him owing to non‑compliance with the mandatory provisions of a statute. In the present case, the entire trial was concluded in two days and the appellant was unrepresented. Not a single copy of any of the previous statements of the witnesses was supplied to him on which he could have anticipated and met the prosecution case. I feel constrained to hold that in these circum stances owing to disregard of the provisions of section 6 (7) of the Pakistan Criminal Law (Amendment) Act, 1958, the appellant's trial stands vitiated.

10. In view of my findings that the appellant was not a public servant and that his trial Is bad on account of the failure on the part of the prosecution to comply with the mandatory provisions of section 6 (7) of the Pakistan Criminal Law (Amendment) Act, (XL of 1958), it is not necessary to assess the appellant's conviction on its merits. However, I must say that I am not at all impressed with the evidence led by the prosecution as dependable for upholding the appellant's conviction even on merits. P. W. Karim Bakhsh had admittedly suffered a loss at the hands of the appellant, having had to forego a piece of land which he had obtained on lease from the Cantonment. The other witness, namely, P. W. Ghulam Husain, the complainant, was an employee of Chanan Din Contractor, who had been prevented by the Military Lands Service on the report of the appellant from removing earth from its lands. The third witness is the Police Inspector. He may have seen the money being passed to the appellant, but he could not have possibly said on what pretext Ghulam Husain passed it to him. I find it difficult to believe that the appellant, having allowed Ghulam Husain to walk away with his crime of removing the earth on payment of Rs. 100 on an earlier occasion would still have insisted three days later on the balance of Rs. 50 to be paid to him, as if it was a genuine debt which he was claiming from Ghulam Husain, which the latter was honour‑bound to pay. The whole case is not free from an element of doubt, of which the benefit must go to the appellant.

11. In the result, I accept the appeal, set aside the con victions of the appellant as recorded by the learned Special Judge and acquit him. His bail bond is cancelled. A. H. Appeal accepted.