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17. Cr1. Rev. No. 735 of 1977, Hassan Raza v. The State.
18. Crl. Rev. No. 638 of 1977, Majeed A. Sheikh and another v. The State.
19. Cr1. Misc. No. 622-Q/77, Shabbir Shah v. The State.
20. Crl. Misc. No. 623-Q/77, Haq Nawaz v. The State.
21. Cr1. Misc. No. 624-Q/77, Muhammad Asghar v. The State.
22. Crl. Misc. No. 625-Q/77, Muhammad Boota v. The State.
23. Crl. Rev. No. 582 of 1977, Masood Ahmad v. The State.
1 A number of employees of the Punjab Livestock, Dairy and Poultry Development Board, commonly known as P. L. D. B. Are facing charges under Anti-Corruptions Laws, in the Courts of various Special Judges in the Province. Some other persons are also being proceeded against in these very Courts, being co-accused of these employees,
3. A large number of petitions have been moved in the High Court seeking quashment of proceedings. Hasan Raza, a Transport Officer, Majeed A. Sheikh and S. A. Qureshi, partners of a publicity firm and Masood Ahmad, owner of Bolan Radios have moved Criminal Revision Petitions, seeking the same relief.
4. The main attack on the proceedings is based on the contention that the employees of the P. L. D.
B. Are not public servants and therefore proceedings before the Special Judges are illegal. This is the only ground in most of the petitions, while some petitioners also raise questions of fact and evidence. Since these petitions raise a common question of law, on which to my mind rests the fate of these petitions, they will be disposed of by a single order. Specific pleas raised in some of the petitions will, however, be discussed separately.
5. On the question whether the employees of the P. L. D. B. Are public servants or not the following points have been raised :
(i) The Punjab Livestock Dairy and Poultry Development Board Act, 1974 (Act III of 1974) does not declare its employees to be public servants ;
(ii) Section 2 (b) of the Pakistan Criminal Law Amendment Act does not cover the employees of the P. L. D. B. As they are not employees of an Organization set up by the Central Government ;
(iii) Under the P. L. D. B. Service Rules, 1974 the employees are the employees of the P. L. D. B. And therefore are not Government servants ;
(iv) Even though appointments of some of the officers of the Board is made by the Government, the employees continue to be employees of the Board, as their salaries are paid by the Board ;
(v) The P. L. D. B. Is a body corporate and is a commercial organization and is, therefore, not charged with any public responsibility and
(vi) None of the clauses of section 21, P. P. C. Cover the case of the employees of the P. L. D. B.
6. The learned counsel who appeared on behalf of the State has argued that a bare reading of the Act (Act III of 1974) would show that the activities of the Board are not different from the activities of a Government department in the sector of Livestock Development and that the Board was only a specialised agency looking after the activities of the Government in the areas assigned to the Board. He was of the view that the employees of the Board are covered by clause ninth of section 21, P. P. C.
7. Mr. Mumtaz Hussain, the learned counsel in Petition No. 605-Q/77 has argued that the absence of the provision declaring the employees of the P. L. D. B. As public servants is not accidental. Since provisions to that effect exist in a large number of laws, creating such autonomous corporations, an absence of such a provision in the P.L.D.B. Act (Act III of 1974) can be treated only as intentional.
He has stressed that the Board has to act as a commercial organization and that is why its employees could not be declared as public servants. The learned counsel has also argued that the guiding principle under section 21, P. P. C. Is to see whether the person was exercising any delegated function of the Government. For this purpose he has referred to the case of Karim Bakhsh v. The State (1).
8. Sh. Nisar Qutab the learned counsel in Criminal Misc. No. 193Q/77 has traced the history of the amendments in the law on the subject to support his contention that the omission of the provisions relating to public servants in the P. L. D. B. Act, 1974 was deliberate and not accidental.
9. Pakistan Criminal Law (Amendment) Act, 1948 defined a public servant as a person who was declared as a public servant under section 21, P. P. C. Or was an employee of a railway or of a body corporate to be notified by the appropriate Government. This Act was repealed and replaced by a law of the same name in 1958. This law was amended in 1965 by Act XII of 1965 and the law thus amended provided for employees of a body set up by the Central Government. Ordinance V of 1977 made a further amendment and included in its ambit the employees of bodies set up, controlled or administered by or under the authority of the Central Government.
10. The learned counsel has argued that the absence of the words relating to Provincial Government in the successive laws is significant. He has argued that the amendments in the law show that the Legislature was conscious of the fact that such corporations were not covered by section 21, P. P. C.
11. It is correct that P. L. D. B. Is not a creation of the Central Government. Therefore, section 2 (b) of the Pakistan Criminal Law (Amendment) Act, 1958, as far as it deals with the bodies set up by Central Government, is not applicable. It is also clear that the Punjab Livestock Dairy and Poultry Development Act, 1974 does not contain any provision which declares the employees of the P. L. D.
B. To be public servants. It is also correct that the employees of the Board cannot be termed as Government servants, even though their pay scales are comparable to the National Pay Scales, available to Government servants only.
12. On the other hand, the provisions of section 21, P. P. C. Particularly clause Ninth require careful scrutiny in order to determine whether the activities of the P. L. D. B. And consequently of its employees are such as to be covered by it. The opening words of the clause are "Every Officer whose duty it is as su:h officer to take, receive, keep or expend any property on behalf of the Government, or.................
13. This provision has been interpreted on a number of occasions. Secretary of a Soldiers Board was not treated as a public servant (A. K. Muhammad Shamsul Haq v. State) (2) nor was a clerk of Union Board in absence of any evidence of his functions, Asghar Ali v. Stale (3). On the other hand, an Accountant of Agricultural Development Bank was treated as a public servant (Abdul Kralek v.
State (4). This shows that the determination whether any functionary falls within definition of a public servant depends on the facts of the individual case, guided of course by certain general principles, like the ones laid down in the case of Karim Bakhsh.
14. The Punjab Livestock, Dairy and Poultry Development Board came into being under a Provincial Act of 1974 of the same name. It was
(1) PLD 1962 Lah. 144 (2) PLD 1959 SC (Pak.) 242
(3) PLD 1960 Dacca 1049 (4) 1968 P Cr. L J 869 to be a body corporate. The management and affairs of the Board vest in a Board of Directors. Five senior officers of the Government of the Punjab as well as the Managing Director will be the Directors of the Board. Not less than four in number shall be the non-official members of the Board.
There will be a Chairman of the Board. The Chairman and the non-official members will he appointed by Government. Section 4 (2) of the Act states that "The Board shall, in discharging its functions, act on national and commercial considerations, subject to such directions as Government may give to it from time to time." Provisions of section 1 (3) and some provisions of section 13 (Powers, Duties and Functions of the Board) also relate to the interest of the Government.
They read as follows : "l.-(3) It (this Act) shall apply to all projects in the public sector mentioned in the schedule."
"13 (2) In particular the Board may in order to carry out the purposes of this Act-
(a) form and establish companies in respect of any of the projects mentioned in the Schedule ;
(b) manage on behalf of Government shares held by Government in the issued capital of the companies referred to at (a) above ; (c)
(3) The Board shall also be responsible for- (a)
(b)
(c) presenting to Government for its approval schemes in respect of projects mentioned in the Schedule ;
(d) implementing and executing schemes approved by Government : (e)
(f) managing on behalf of the Government on such terms and conditions as the Government may specify, such farms, projects and activities as Government may from time to time, decide to hand over to the Board...........
Sections 14 and 15 deal with the finances of theBoard . They permit the Board to negotiate and obtain loans from local and international financing institutions provided that the foreign loans will require the prior approval of the Government. Three of the sources of the Board Fund are investments made by Government, grants made by Government and loans obtained from Government.
15. The winding-up clause (section 22) provides for the appointment of an administrator in the event of dissolution of the Board, but provides that "Any properties and assets left over after all the liabilities of the Board have been discharged shall vest in the Government and all liabilities left undischarged after all the properties and assets of the Board have been disposed of shall become the liabilities of the Government". [Section 22 (3)1