This appeal is directed against the judgment dated 11.3.2003 passed by the learned Special Judge, Anti-Corruption, Rawalpindi, whereby, he had convicted the appellant under Section 168 PPC and sentenced him to one year S.I with a fine of Rs, 50,000/- or in default thereof, to undergo further six months SI.
2. Succinctly, the prosecution case as narrated in the FIR is that on 17.11.1999 a case FIR No, 9 under Sections 420/409 PPC read with Section 5(2) 47 PCA had been registered at police station Anti- Corruption Establishment, Rawalpindi, on the complaint of one Abdul Ghaffar, Circle Officer, PW-10.
The FIR got registered on the written report Ex. PD of Muhammad Amin Qureshi Deputy Director (Elementary) PW7 which reads as under:-- "It is brought to your kind notice that Mr. Muhammad Yunus SST/Headmaster Govt. Elementary School, Behl Chakka Teh: Kotli Sattian Distt. Rawalpindi has been drawing, double payment from Army Public School and college as well as from the Department. He has been removed from his services and also directed to make good the payment drawn from the period from 1.12.1989 to date."
3. After lodging the FIR, Abdul Ghaffar PW-10 got investigated the case. He recorded the statements of three Pws namely, Muhammad Amih Deputy Director (Education), Malik Qamaruddin and Laiq Ahmad. On 15.1.2000 he also recorded the statement of Mirza Maqsud Elahi and Raja Muhammad Zarat, he took into possession the relevant record relating to Muhammad Yunus accused vide recovery memo Ex. P.C. He arrested accused after rejection of his pre-arrest bail and obtained his physical remand and thereafter got his judicial remand and sent him to jail.
4. The charge under Section 409/420 PPC read with Section 5(2) 47 PCA was framed against the accused, to which, he pleaded not guilty and claimed trial.
5. To prove its case, the prosecution has examined as many as eleven P.Ws.
6. The accused was examined under Section 342 Cr.PC he denied all the allegation stating that he has been involved in this case falsely. He deposed that he was, senior from Raja Muhammad Zarat DEO and Muhammad Amin Qureshi PW and they booked him in a false case with the intention to gain the seniority.
7. Learned counsel for the appellant has challenged the conviction of the appellant on the ground that the provision of Section 168 PPC is not attracted to the case of the appellant and, thus, the sentence awarded by the trial Court to the appellant is not sustainable in law.
8. Conversely learned AAG and state counsel have supported the impugned judgment.
9. I have heard the learned counsel for the parties at length and gone through the record.
10. Section 168 PPC reads as under:--Public servant unlawful engaging in trade: Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
The word 'trade' has not been defined in P.P.C. and if the definition of a relevant word in the relevant law is not available then, guidance can be sought from dictionary meaning. In "Kitabistan 21st century Practical Dictionary" the word 'trade" had been defined which means the buying and selling of goods. The word `business' has also have defined in the said dictionary i,e, activity in trade, commercial enterprise, one's regular occupation. According to Halsbury's Laws of England (Edition 2, Volume XXXII) page 303) the word "trade" in its primary meaning means the exchanging of goods for goods or goods for money. In Wharton's Law Lexicon, the "trade" has further been defined as under:-- "Exchange of goods for other goods, or for money" Other meaning assigned to it are "traffic, intercourse, commerce."
Aiyyar in his Law Lexicon of British India has expressed the view that the word 'trade' in its ordinary sense means "exchange of goods for money or goods for goods with the object of making profits", although in general signification the term means `traffic or merchandies or a private art, or a way of living, craft or business which a person has learned or, carries on as a means of livelihood."
11.According to all these definitions in different books and dictionaries, the word 'trade' indicicates a process of buying and selling but word `trade' would not include In dustry or class of skilled labour.
From the above it would mean that purchase and sale of goods for a consideration or exchange of goods is essential ingredient of trade and business. Had the service/employment by a public s servant beep the trade it would have been included in the definition of trade and business. The offence under Section 168 PPC has provided punishment for a person whoever being public servant and being legally bound, and as such public servant would not engage in trade and if he works for gain and render his services in performing his duty for the time other than the time reserved for duty as public servant is not an offence covered within 'the provision of Section 168 PPC.
12. A public servant, is bound to obey Civil Servant Conduct Rules and not to engage himself in any trade etc. without previous permission by the Govt. and failure to comply with the rules did not amount to an offence, punishable under Pakistan Penal Code though furnishes ground for initiation of disciplinary action against him and the appellant being public/civil servant was under legal obligation to abide by all' the rules made under the Civil Servant Conduct Rules.
13. The civil servant is legally bound to comply with all the Civil Servant Rules and he is prohibited to engage himself in any trade and business or undertake any employment work other than official duties except with the previous sanction by the Government which means that sanction from the Govt. for a civil servant is the pre-condition for him to engage in above said profession but the engagement of a public servant is trade or business is an offence whether with permission or without permission of the Government. So far as the part time job or employment is concerned it has not been made as offence nor included in the definition of trade.
14. The offence according to Section 40 PPC denotes a thing punishable by the Penal Code and any offence punishable in the Penal Code would include the illegal act but every illegal act unless made punishable by the law would not be an offence.
15.Keeping in view the above discussion/definition of word 'trade' I am constrained to observe that the appellant while serving in Army Public School being a public servant as teacher in the Education Department had not committed an offence covered within the provisions of Section 168 PPC and not liable to be punished, thus, the conviction and sentence of the appellant by the lower Court is not sustainable in law, hence, set aside. The appeal is accepted and the appellant is acquitted of the charge.