The applicant was elected Chairman of Nabisar Union Co--operative Services Society by a resolution passed on 2nd September, 1960 in the first general body meeting of the said society. This position has not been denied by the State. In connection with the supply of wheat seed and fertilizer by the Registrar, Co-operative Societies to the said Co-operative Society for distribution amongst the members of the co-operative society, it is alleged that out of the sale proceeds of wheat seed and fertilizer certain amounts were misappropriated by the applicant and this amounted to criminal breach of trust being an offence under section 5(2) of the Prevention of Corruption Act, 1947. The offences were alleged to have been committed during two years that is 1960 and 1961 which resulted in registration of two cases against the applicant and as the applicant was considered to be a public servant the case was investigated by the Special Police (Anti. Corruption), Although the offences were supposed to have been committed in 1960-61 the challan against the applicant was put up before the Special Judge (Anti-Corruption), Hyderabad on 31st December, 1978 and the charge was framed by the said Court on 20th October, 1979. One F.
I. R. Was lodged but since the mis-appropriation is supposed to have been committed in two different years, that is, 1960 and 1961, two separate charge-sheets were submitted and in this Court also two separate criminal revisions have been filed and these have been heard together and will be. Disposed of by this common judgment.
2. The preliminary objection raised by the applicant before the Special Judge was that he was not a public servant and as such the Special Judge, Anti-Corruption had no jurisdiction. The applicant filed applications for his acquittal under section 265-K, Cr. P. C. In the two cases but the same were dismissed by the Special Judge, Anti-Corruption, Hyderabad, by his orders dated 9th February 1980. Identical orders were passed by the Special Judge in the two cases against the applicant. By an amendment in the Co-operative Societies Act, 1925 by Ordinance XVII of 1966, officers of Co- operative Societies were deemed to be public servants. By this amendment a new section 65-B was inserted in the Co-operative Societies Act, 1925 laying down that every officer of a cooperative society shall be deemed to be a public servant within the meaning of section 21. P. P. C. According to the Special Judge this amendment related to a matter of procedure and, therefore, it had retrospective effect and in view of the provisions of the Pakistan Criminal Law Amendment Act, 1958, only the Special Judge appointed under that Act had exclusive jurisdiction to try a public servant in respect of offences specified in the schedule to that Act including an offence under section 409, P. P. C. On this reasoning the applications in both the cases under section 265-K, Cr. P.
C. Were dismissed. The present criminal revision applications have been filed challenging the orders dated 9th February, 1980 passed by the Special Judge.
3. I have heard the learned counsel for the parties and also Mr. Mushtaq Ahmed, P. D. S. P., of the Court of Special Judge, Anti-Corruption, Hyderabad. According to Mr. Mushtaq Ahmed the F I R against the applicant shows that he was apart from being the Chairman of the Co-operative Society, also Chairman of the Union Council and, therefore, his actions as Chairman of the Co- operative Society should be considered as actions of Chairman of the Union Council. The contention is misconceived. The charge against the applicant was in his capacity as Chairman of the Co-operative Society and the fact that the applicant had been elected as Chairman of the Co- operative Society through a resolution passed by it, has not been denied. There was no charge against the applicant as Chairman of the Union Council.
4. Mr. Mushtaq Ahmed then contended that in 1960-61, the relevant years, the applicant was not a public servant and at the tithe of presentation of challan in December, 1978 he had ceased to be the Chairman of the Co-operative Society and as such there was no need for obtaining prior sanction for applicant's prosecution. If this is the position, then it is conceded that the applicant, not being a public servant, could not be tried by the Special Judge.
5. Mr. Ali Murtaza Hussain, learned counsel for the State, adopts the position taken by Mr. Mushtaq Ahmed and states that in 1960-61 the applicant was not a public servant and the amendment in 1966 by Ordinance XVII of 1966 would not entitle the State to prosecute him before the Special Judge, Anti-Corruption, According to him, however, the case should now be remanded for trial by an ordinary criminal Court.
6. Mr. Ch. Abdul Jabbar, the learned counsel for the applicant, however, contends that this case had been investigated by the Special Police Anti-Corruption, against the applicant who was not a servant which position has now been accepted by the counsel appearing for the State. According to him the Special Police had also submitted the challan. He contends that the entire investigation and proceedings before the Special Judge, Anti-Corruption, Hyderabad, against the applicant are wholly without jurisdiction. The case against him was registered in 1963 and for years together he was being called by different anti-corruption inspectors for investigation. According to learned counsel the applicant has suffered for 17 long years and this was not a case for remand.
7. It has been conceded that the Special Judge, Anti-Corruption had no jurisdiction to prosecute the applicant, Admittedly in 1960-61 the applicant was not a public servant. It is only in 1966 that an amendment made offers of co-operative societies as public servant for the purposes of section 21, P. P, C. The provisions of the Amendment Ordinance of 1966 are not retrospective in nature and a person who was not a public servant in 1960-61 would not become a public servant during those years by this Amendment, The learned counsel for the State bas, rightly conceded that the Special Judge, Anti-Corruption has no jurisdiction in the case against the applicant before this Court.
8. The only other question, therefore, that is left for determination in this case is whether the proceedings should be quashed or the case be remanded for trial by an ordinary criminal Court.
For 17 long years the applicant has suffered facing investigation and criminal proceedings which are conceded to be without jurisdiction, it is regretted that though the offences were opposed to have been committed in 1960-61 but the challan was presented in the Court of Special Judge, in December, 1978 by authorities who had no jurisdiction and before a Court which also had no jurisdiction to take any proceedings against the applicant. I am of the view that this is eminently a case for quashing the proceedings against the applicant. In the circumstances the orders dated 9February, 1980 passed in the two cases against the applicant are set aside and the proceedings against the applicant are quashed.