This order will dispose of the three Criminal Revision Applications Nos.34 of 2002 preferred by Rear Admiral (Retd.) Syed Hamid Khalid and 35 and 36 of 2002 preferred by Capt. (Retd.) Aijaz Akhtar against the order dated 10-12-2001 passed by the Special Judge (Central) Karachi, in Criminal Complaint Nos.1 of 1998, 2 of 1998 and 4 of 1998 filed by the respondent No,1 i.e, Behria Foundation, hereinafter referred to as the Foundation, whereby he dismissed applications under section 249-A, Cr. P.C
2. The grounds raised in support of the revision applications are as under:--
(i) The Foundation, is not owned, controlled and set up by the Government of Pakistan, therefore, its employees cannot be prosecuted under section 5(2) of Prevention of Corruption Act, 1947, hereinafter referred to as "the Act".
(ii) The two applicants were the contract employees of the Foundation, therefore, their cases do not fall under section 21, P.P.C. and section 2 of the Act.
3. In support of first ground Mr. Khawaja contended that the Foundation is a Public Charitable Trust and registered under the provisions of. Charitable Endowments Act, 1890, hereinafter referred to as Act, 1890. According to him this is an independent trust and it has no nexus with any Government organization or institution and no investment has been made by the Government therein which would create its interest therein.
4. As to the second ground, he referred to the definition of "civil servants" in Civil Servants Act 1983 and stated that in sub-clause (ii) of section 2, a person who is employed on contract or on work charge basis will not be treated as civil servant. He contended that in case of any grievance in respect of the 'terms and conditions of their services, the law does not allow the applicants to approach the Civil Services Tribunal and therefore, the provisions of section 21, P.P.C. and that of the Act would not be attracted. He referred to the case Dattatraya Malhar Bidkar v. Emperor AIR 1937 Bombay 28 in which on page 30, the learned Wassodew, J. observed as under:-- ".... It is elementary that in dealing with a penal provisions, the rule of strict construction requires that the language shall be construed so that no cases shall be held to fall within it, which do not fall within the reasonable interpretation of the enactment.".
5. He also referred to the case of London County Council, Appellants; The Aylesbury Dery Company, Ltd., Respondents, Queens Bench Division 1898 at page 106, relevant page 109, wherein learned Wright, J., observed as I have certainly always understood the rule to be that where there is an enactment, which may entail penal consequence, you ought not to do violence to its language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it in express language"
6. He further referred to the case of State of A.P. v. A.P. Pottries AIR 1973 SC 2429, wherein in conclusion of para.7 at page 2433 following was observed:- ".... In interpreting a penal provision it is not permissible to give an extended meaning to the plain words of the section on the ground that a principle recognized in respect of certain other provisions of law requires that this section should be interpreted in the same"
7. Mr. Khawaja desires to show that there is no specific provision bringing the applicants within the ambit of section 21, P.P.C. and the Act, therefore, their prosecution is not in accordance with law. He submitted that offence, if any, committed by the applicants, at the most be triable by the ordinary Courts.
8. In reply to the first ground Mr. Siddiqui, learned D.A.-G., Mr. Azad, and Mr. Hafeez, Advocates for the respondents contended that the Foundation has been set up under the Charitable Endowments Act, 1890, with the permission of Government of Pakistan, Ministry of Defence on an application of Chief of Naval Staff. In support of this contention they referred the notification No, F.8-2/80-S.W-II, dated 7-1-1982, Gazette of Pakistan, dated February 24th 1982 issued by the Social Welfare Wing, Islamabad.
9. As to the second ground they stated that admittedly the applicant No,1 was the Managing Director w.e.f, 1-10-1995 whereas the applicant No,2 was a Director w.e.f, April 1995. They contended that the two applicants during their employment were entrusted with the administration and finances of the Foundation. According to them being the employees of the said Foundation, they are to be treated as officers/employees defined under section 21 of P.P.C. and section 2 of the Act.
They referred to the cases of Anwar Aziz Chaudhary v. The State 1991 SCM R 994 and Aqa S. Asghar Hussain v. The State 1981 SCM R 1112.
10. I considered the submissions of the counsels. Through notification supra the Government of Pakistan, Ministry of Defence has accorded sanction to the proposal of the Chief of Naval Staff to set up a Charitable Trust under the name of Behria Foundation, Pakistan Navy, conforrning to the requirements of the Act, 1890. According to clause-3, under the heading of Administration of Foundation, in the notification ibid, the said Foundation is to be administered by a Committee consisting of eight members including the Chairman by virtue of their offices, namely:- Chairman, Chief of Naval Staff, Vice Chairman, Deputy Chief of Naval Staff (Personal) and six members klso from the serving personals of Pakistan Navy.
11. According to the schedule of this notification, the beneficiary means persons of Pakistani domicile who are serving or have served in Pakistan Navy, including civilians and dependents of such persons.
12. On the application of Chief of Naval Staff, the Government of Pakistan in exercise of powers conferred under subsection (1) of section 4 of the Act, 1890 ordered that the amount of Rs,3 million lying under the control of Central Non-Public Funds of Pakistan Navy shall vest in the Treasurer of Charitable Endowment for Pakistan and that the aforesaid amount and the income thereof shall be applied in accordance with terms of schedule to be settled and section 5 of the Act, 1890. Mr. Khawaja submitted that though the amount of Rs,3 million has been shown to have been allocated to the Foundation under the directions of the Federal Government but so far no such amount has been received, therefore, Federal Government has any monitory interest therein. In reply learned counsel for the respondents submitted that such amount has already been received by the Foundation and is being utilized. Be that as it may, even if no amount of money has been spent by the Federal Government in the Foundation the fact as observed is that it is set up and controlled and its functionaries are appointed by the Federal Government. It is, therefore, held that the Foundation has been set up by the Federal Government and is under its control and the management; the employees of the Foundation therefore, would fall under section 21 of P.P.C. and section 2 of the Act, which reads as under:-- "Section 2. Interpretation. ---For the purpose of this Act public servant means a public servant as defined in section 21 of Pakistan Penal Code and includes an employee of any corporation or every body or organizition set up or controlled or administered by or under the authority of the Central Government."
13.In the case of Aqa Asghar Hussain, the appellant was appointed as auctioneer to the General Manager, Telephone, District Karachi under the agreement dated 441959 for the period from 29-5- 1959 to 30-10-1959. He was being tried by the Special Judge, Central, Karachi. The jurisdiction of the trial Court was questioned and the matter went up to the Honourable Supreme Court. Honourable Supreme Court while disposing of the appeal of the appellant observed as under:-- "---..The appellant was appointed as auctioned to the General Manager, Telephone, District Karachi under agreement dated 4-6-1959 for the period from 29-5-1959 to 30-10-1959. The function of the appellant was to arrange by public auction of such material as may be desired on commission basis namely 9% for sale proceeds up to Rs,5,000 and 3.% for sale exceeds above Rs,5,000. The appellant was required to deposit at the rate of each day's sale at least 25% of the sale proceeds with the Department whether with a list of the day's bidders, the material auctioned and the actual price of the auction. The rest of the sale proceeds the appellant was - required to deposit within a week of the sale and before lifting the material. The appellant was permitted to deduct his commission charges from the last installment of the sale proceeds of each sale.
Mr. Sattar Shaikh, the learned Additional Advocate-General, by reference the aforesaid functions of the appellant, contended that the appellant is a public servant within the meaning of clause (9) of section 21, P.P.C. which clause reads as follows:- "Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, 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 interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interest of the Government or remunerated by fees or commission for the performance of any public duty."
'It is obvious that the appellant was an officer whose duty was to receive property on behalf of the Government, to protect the pecuniary interests of the Government and for services rendered to be remunerated by commission. The appellant therefore, squarely fell within the aforesaid clause (9)IC section 21 of the P.P.C.
Mr. Hayat Junejo, the learned counsel for the appellant, while conceding that the functions and duties entrusted to the appellant were those contemplated by the foresaid clause 9, went on to argue that the additional requirement was that the appellant was an officer, and since the appellant was admittedly not in the regular employment of the Government, he was not an officer.
The argument not only overlooks the other clauses of section 21, P.P.C. but even otherwise imports in clause (9) a consideration foreign to its term: Clause (9), it may be noticed, turns a person an officer by reference to his functions and duties.
14. The applicant No,1 was the Managing Director whereas the applicant No,2 was a Director of Foundation. The two applicants were heading the organizations and as such, were responsible for all the transaction and contracts executed between the Foundation and the outsiders.
15. There is no cavil to the legal proposition set up in the two judgments supra referred by Mr. Khawaja. It is true that the provisions of law should not be ought not to do violence to its language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it in express language. The case of Aqa Asghar Hussain supra has resolved the controversy of a temporary employee of a Government Institution and his legal status vis a vis Act-II of 1947. Mr. Khawaja made an effort to differentiate the instant case from the case of Aqa S. Asghar Hussain supra and contended that the facts of the present cases are not identical to the case of Aqa S. Asghar Hussain supra. With respect to Mr. Khawaja, I have not been able to find that how the two cases, the case referred above and the case in hand are differentiated. While the cases in hand are kept in juxtaposition to the case of Aqa S. Asghar Hussain supra, the dictum laid down by the Honourable Supreme Court applies to the cases of the applicants as well.
16. In the circumstances, it is held that the provisions of section 21, P.P.C. and sections 2 and 5 of the Act-11, 1947 are applicable to the cases of the Applicants.
17. The Criminal Revision Application Nos.34, 35 and 36 of 2002 are, therefore, dismissed in limine.