' This order will dispose of Criminal Miscellaneous No, 139/Q of 1979, Criminal Miscellaneous No, 566/Q of 1979, Writ Petition No, 4179 of 1977 and Criminal Miscellaneous No, 724/Q of 1979. These petitions are being taken together as they raise a common question of law.
2. The petitioners in these petitions are employees of the Punjab Agricultural Development and Supplies Corporation, a statutory body constituted under the provisions of the Punjab Act XXI of 1973. They were posted as either supervisors or storekeepers in the depots of the Corporation located in different parts of the Province. At present they are being prosecuted in the, Courts of Special Judge Anti-Corruption at Multan and Lahore on different charges of misappropriation and corruption. Thus, the petitioners in Criminal Miscellanous No, 566/Q of 1979, Writ Petition No, 4179 of 1977 and Criminal Miscellaneous No, 724/Q of 1979 are alleged to have misappropriated bags of fertilizers kept in their custody. The petitioner in Criminal Miscellaneous No, 139/Q of 1979 is stated to have demanded illegal gratification at the rate of Rs, 10 per bag for the sale of fertilizers from the informant. In all these cases the Anti-Corruption Establishment Police carried out the investigations and then submitted challans in the relevant Courts of Special Judge, Anti-Corruption, for the trial of the petitioners in accordance with the provisions of the Pakistan Criminal Law (Amendment) Act, 1958. The case of the petitioners before me is that they are not public servants within the meaning of the Act; as such the provisions of the Act are not applicable to them and they cannot be tried by a Court constituted thereunder.
3. As its preamble recites, the Pakistan Criminal Law (Amendment) Act, 1958, hereinafter called the Act, was enacted for the speedy trial and effective punishment of certain offences. These offences have been listed in the Schedule forming part of the Act. For the trial of persons charged with these offences the Act has constituted Courts of Special Judge. It was not disputed before me that the petitioners could be tried by those Courts only if they were 'public servants' within the meaning of the Act.
4. The expression 'public servant' has been defined by section 2, clause (b) of the Act. This clause reads as follows : ' 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 Federal Government.
' The Punjab Agricultural Department and Supplies Corporation has not been set up and is not controlled or administered by or under the authority of the Federal Government; as such its employees are not covered by the later part of the clause. Thus all that now we have to see is if the petitioners can be regarded as public servants within the meaning of section 21 of the Pakistan Penal Code. This section consists of eleven clauses. The only clause that can have any relevance to the case of the petitioners is clause ninthly. It runs 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 interests 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 fees or commission for the performance of any public duty."
' It will be noticed that this clause is in two parts. It can be split up as follows :-
(a) Every officer whose duty it is, as such office'', to- (i)take, receive, keep or expend any property on behalf of the Government, or
(ii) make any survey, assessm ent or contract on behalf of the Government, or
(iii) execute any revenue process, or
(iv) investigate or report on any matter affecting the pecuniary interest of the Government, or
(v) make, authenticate or keep any document relating to the pecuniary interest of the Government, or
(vi) prevent the infraction of any law for the protection of the pecuniary interest of the Government;
(b) Every officer who is : (i)in the service or pay of the Government; or
(ii) remunerated by fees or commission for the performance of any rublic duty.
' The petitioners admittedly do not fail in category (b) and quite clearly they are not covered by clauses (ii) to (vi) of category (a) as enumerated above. Thus, the question whether they can be described as public servants or not depends upon whether they can be treated as falling under clause (1) of category (a).
5. The first thing to be noticed in clause (i) of category (a) is that it speaks of an 'officer'. This expression came up for interpretation in Reg v. Ramajirav Jivbajirav (1), and West, J. Observed:- ' We think that the word 'officer' there means some person employed to exercise to some extent, and in certain circumstances, delegated function of Government. He is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those of some one who is so armed.'
' This construction of the expression 'officer' was adopted by a Division Bench of the Lahore High Court in Ahad Shah v. Emperor (2), which then went on to say: "But it is not enough that a person should be in the pay or service of Government to constitute him a public servant within the meaning
(1) 12 Bom. H C R 1 (2) AIR 1919 Lah. 152 of section 21 (ninthly), P. P. C. He must also be an Officer. That expression is not of: course, to be restricted to its colloquial meaning of a Commissioned or non-Commissioned Officer; it means a functionary or holder of some `officium' or office. The office may be one of dignity or importance; it may equally 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."
' In G. A. Monterio v. State of Ajmer (1), the Supreme Court of India laid down the test for determining whether a person could be described as an officer within the meaning of clause ninthly of section 21 of the Penal Code. The test was
(i) Whether he was in the service or pay of the Government 7 and
(ii) Whether he was entrusted with the performance of a public duty ?
6. The petitioners are not in the service of the Government nor do they receive their pay from the Government. They are the employees of a statutory corporation which is a separate legal entity, apart and distinct from the Government. They receive their salaries from a fund created by the very statute under which the Corporation itself has been established. There is no nexus at all between them and the Government. They perform functions which are assigned to them by the corporation and not by the Government. They either look after the stores of the corporation or run depots for the sale of fertilizers on behalf of the corporation as part of its ordinary ccmmercial activities. They can hardly be said to be performing any public duties. Quite clearly they do not fulfil the test mentioned above. It is therefore difficult to see how they can be regarded as public servants within the meaning of section 21 of the Penal Code. The case of Zabte Khan v. State (2), referred to by the learned counsel for the Corporation, is clearly distinguishable as Zabte Khan was an employee of a body set up under an administration fiat of the Government.
7. Learned counsel for the Corporation submitted that the Corporation was a part of the Provincial Agricultural Department and that the position of the petitioners was not different from any other employee of the said Department. In support of his contention the learned counsel referred to the Rules of Business of the Provincial Government where, in Schedule H, the Corporation is mentioned amongst the functions listed for that Department. I am unable to accept the contention of the learned counsel. As stated earlier the Corporation has been established under a statute. Under section 3(2) of this statute it enjoys the status of a body corporate having perpetual succession and a common seal. Quite obviously it has an existence distinct from the Provincial Government.
The mere fact that for certain administrative purposes it has been shown in the Rules of Business under the Agricultural Department will not destroy its status as an independent legal entity. Section 11 of the said statute empowers it to appoint inter alia such servants as it deems fit for the official performance of its functions. The servants employed by it in exercise of this power can hardly be regarded as employees of the Provincial Government.
8. The learned counsel appearing for the Corporation also stated that as part of its functions the Corporation was required to keep in its godown
(1) PLD 1957 SC (Ind.) 170 (2) PLD 1972 Lah. 196 stocks of fertilizers belonging to the Federal and Provincial Government on their behalf. This may indeed be so but it is to be noticed that the petitioners look after the stock on behalf of the Corporation whose employees they are and not on behalf of the Government.
9. In the light of what I have stated above I should think that the petitioners are not public servants within the meaning of section 21 of the Pakistan Penal Code and the provisions of the Act are for that reason no applicable to them. Consequently the Courts of Special Judge set up under the Act have no jurisdiction to try their cases. Accordingly, I quash the proceedings pending against them in the Courts of Special Judge, Anti-Corruption, at Lahore and Multan. This will, however, not prevent the authorities concerned from prosecuting the petitioners in respect of the offence alleged against them in competent Courts of law.