' TARIQ JAVAID, J.---This order shall dispose of Writ Petition No, 1431 of 2010; Writ Petition No, 7333 of 2009; Writ Petition No,7204 of 2009; Writ Petition. No, 8651 of 2009; Writ Petition No, 459 of 2009; Writ Petition No, 3501 of 2009; Writ Petition No 692 of 2009; Writ Petition No, 1304 of 2009; Writ Petition No, 8504 of 2009; Writ Petition No, 1303 of 2009; Writ Petition No, 817 of 2009; Writ Petition No, 694 of 2009; Writ Petition No, 7231 of 2009; Writ Petition No, 689 of 2009; Writ Petition No, 691 of 2009 and Writ Petition No, 690 of 2009.
2. The petitioners, through Writ Petition No, 1431 of 2010 seeks quashment of F.I.R. No, 15, dated 6-3- 2009, F.I.R. No, 69, dated 18-12-2008, F.I.R. No, 17, dated 6-3-2009, F.I.R. No, 27, dated 18-7-2009, F.I.R.
No, 61, dated 13-12-2008, F.I.R. No, 68, dated 13-12-2008, F.I.R. No, 39, dated 13-12-2008, F.I.R. No, 42, dated 13-12-2009, F. I. R. No, 67, dated 13-12-2008, F. I. R. No, 76, dated 13-12-2008, F.I.R. No, 58, dated 13-12-2008, F.I.R. No, 34, dated 13-6-2009, F.I.R. No, 59, dated 13-12;2008, F.I.R. No, 51, dated 13-12-2008, F.I.R. No, 31, dated 13-12-2008, registered under section 5(2), Prevention of Corruption Act, 1947 read with section 409, P.P.C. At Police Station, Anti-Corruption Establishment, Khanewal the petitioner, through Writ Petition No, 817 of 2009 has assailed the order dated 27-1-2009 passed by the Secretary, Local Government and Community Development, Punjab Lahore whereby it was asked to register criminal case against the petitioner and it was held, that appropriate action in the light.
Of recommendations of the Committee be taken, hence the Executive District Officer Community Development, Khanewal requested the Director, ACE, Multan for -registration of case against the petitioner.
3. The petitioners, according to the averments made in the pleadings placed reliance on 2004 PCr.LJ Lahore 620; 2000 YLR 2242; (1995 PCr.LJ Lahore 797); (1988 PCr.LJ Lahore 1429); 1990 PCr.LJ 971; (1997 PCr.LJ 594, 758 and 991): (1997 MLD 1573); (NLR 1997 SD 215); (1995 PCr.LJ 94), (PLD 1996 Lahore 145). According to the averments the Community Board (hereinafter to be referred as C.C.B.) is constituted under section 98 of the Punjab Local Government Ordinance, 2001 (hereinafter to be referred as Ordinance); that it is juristic person and the Members and functionaries of the Community Board do not fall within the definition of Public servant, therefore, the process of investigation initiated against them under the Anti-Corruption Laws by respondent No, 1 is without jurisdiction ultra vires of law, and F.I.Rs, registered against them by Anti-Corruption Establishment, are illegal. Section 98 ibid provided that in every local area, groups of nonelected citizens may, through voluntary, proactive and self-help initiatives, set up any number of C.C.B. For certain development projects enumerated therein. These appear to be mainly development works for improvement of civic amenities. To carry out the said purpose, section 119 of the Ordinance ibid provides that subject to the condition enumerated therein the Local Government may grant funds to the C.C.B. Referred to above within its local areas, up to eighty per cent of the budgeted amount of an approved development scheme in the manner proscribed therein. However, remaining twenty per cent, or even more, in certain cases, was to be generated by the C.C.B. Through donations and subscriptions contributed by the residents of locality or generated by the C.C.B.
Through its own mechanism.
4. It was reported by the District Co-ordination Officer, Khanewal to the Director, Anti-Corruption Establishment, Multan Region, Multan vide letter dated 10-6-2008 that after conducting inquiry and verification it was found that embezzlement of Government Funds has been committed by the functionaries of the petitioner, therefore, it was directed that the cases be registered against the functionaries of the petitioner.
5. Perusal of the all those judgments shows that in all the above-said cases F.I.Rs, were quashed, as it was held that F.I.Rs, were based on nothing to frustrate and malice on the part of the complainant/who had tried to convert and transform issues into criminal case. In all of the above- said cases the learned counsel was seized by space on the very well and F.I.R. Was registered against the husband wherein it was alleged that the alleged husband had abducted the girl in all the above-said cases. The alleged abductee appeared before the Court and made statement that she had married the husband of her own free-will and consent and hence the F.I.Rs, in the above cases were quashed. However, in this case it does not appear that the F.I.Rs, are result of fraud.
6. On the basis of said complaint above-said F.I.Rs, were registered which have been assailed in the above writ petitions. The petitioners, according to the averments in the pleadings have heavily relied on the definition of Public Servant as given in section 193 of the Punjab Local. Government Ordinance, 2001 as well as section 21 of the Pakistan Penal Code and has maintained that functionaries of the petitioners are not public servant, and hence, respondent No, 1 has no jurisdiction to proceed against them. Section 193 provides as follows:-- "Members and Servant to be public servant. All Nazims, NaibNazims, Members of the Council, functionaries of the Local Government and every other person duly authorised to act on behalf of the local government shall be public servants within the meanings of section 21 of the Pakistan Penal Code (Act XLV of 1860)."
' Section 21 of the Pakistan Penal Code provides, as follows:--
21. Public Servant. The words, "public servant" denotes a person falling under any of the descriptions hereinafter following, namely:-- (Ninth) 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 Goverdment, or to execute any revenue process, or to investigate, or to report, on any matter Government, or to make, authenticate or keep, any document relating to the pecuniary interests of the Government or to prevent the fraction 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; ' Explanation-1. Persons falling under any of the above descriptions are public servant, whether appointed by the Government or not.
' On the basis of said section it has been argued that members of the C.C.B. Are not public servant:- -
7. Reference can be made to Aqa S. Asghar Hussain v. State 1981 SCMR 1112 the Hon'ble Supreme Court held as follows:-- "It is not the designation of a person that matters for the guiding factor is the duties to be performed. Unlike clause-I of section 21 this clause is not limited to persons in the regular employment of the Government. Moreover, the appellant while acting as an auctioneer to the Government was in fact, performing a delegated function of the Government. He was, therefore, an officer of the Government entrusted with the duties contemplated by said clause 9."
8. The intention of the legislature appears to be that if the funds are provided by the Government exchequer for use of public purposes, the persons associated with discharging of their functions by using the public funds are deemed to be public servant, though they may not be Government employees or receiving their own salaries/remuneration from the Government.
9. The contention of the petitioners that the functionaries of the petitioners are not public servant and as such their cases cannot be investigated by respondent No, 1 is also of no avail to them as the amount being spent by the functionaries of the petitioners was out of public funds and the same were supposed to be spent for public purposes. If the said amount is mis-appropriated then it cannot be said that the petitioners cannot be prosecuted under the Anti-Corruption Laws.
However, these Constitutional petitions have not been filed by functionaries of the Board rather these have been filed on behalf of the Board. The relief to the functionaries of the petitioners cannot be granted in absence of any proper petition on their behalf.
10. For the foregoing reasons, these Constitutional Petitions have no merits and are dismissed in limine.