TARIQ JAVAID, J.--The petitioner, through this constitutional petition, seeks quashment of F.I.R. No,26 dated 18-7-2009, registered under section 5(2) Prevention of Corruption Act, 1947 read with section 409, P.P.C, at Police Station Anti-Corruption Establishment, Khanewal.
2. Leamed counsel for the petitioner contends that Nida-e-Millat, Citizen Community Board, Multan (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 the 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,l is without jurisdiction ultra vires of law, and, hence has prayed for quashment of the F.I.R, registered against them by Anti-Corruption Establishment, Headquarter is illegal. Section 98 ibid provided that in every local area, groups of non-elected 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.
3. It was reported by the District Co- Ordination Officer, Khanewal to the Director, Anti-Corruption Establishment, Multan Region, Multan vide letter dated 9-9-2008 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 a case be registered against the functionaries of the petitioner.
4. It was alleged that the equipment for which the Government issued funds were never purchased by the C.C.B, hence A the said funds have been misappropriated. On the basis of said complaint F.I.R. No,26 of 2009 was registered which has been assailed in this writ petition. The learned counsel for the petitioner has 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 petitioner are not public servant, and hence, respondent No,l has no jurisdiction to proceed against them. Section 193 provides as follows:- "Members and Servant to be public servant. All Nazims, Naib Nazims, 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 servant within the meanings of section 21 of the Pakistan Penal Code (Act-XLV of I860)."
Section 21 of the Pakistan Penal Code provides as follows:-
21. Public Servant. The words "public servant" denote a person falling under any of the descriptions hereinafter following namely:- ' Honourable Supreme Court, re-produced below for facility of reference:- ' (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 Government, or to execute any revenue process, or to investigate, or to report, on any matter effecting 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 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-I. 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 numbers of the C.C.B. Are not public servant.
5. In AQA S. Asghar Hussain v. State 1981 SCM R 1112 it was held by the "It is not the designation of a person that matters for the guiding factor are 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). "
6. 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 servants, though they may not be Government employees or receiving their own salaries/remuneration from the Government.
7. The learned counsel for the petitioner has maintained that the equipments in question were purchased and those have since been handed over to the E.D.O. (Health). The learned counsel for the petitioner, at the very outset, submitted that if it is proved that equipments for which Government funds were allocated were not purchased before the filing of the complaint then he shall not press this constitutional petition.
8. This being so, the learned counsel was asked to show the invoices or any other documents relating to purchase of the equipments by the petitioner before lodging of instant complaint. He has not been able to show any such document whereas his oral submission with regard to purchase of the equipments are of no avail inasmuch as, if those were purchased before filing of the complaint then there was no occasion for the respondent No,S to lodge the complaint. Suffice it to say that if petitioner has any such evidence, he can produce the same before respondents Nos.l and 2 in his defence.
9. It transpired from the record that the complaint was lodged on 9-9-2008 by the District Co- ordination Officer, Khanewal to respondent No,l, whereas, equipments were handed over to E.D.O.
(Health) in May, 2009. The allegation of respondent No,l that the said equipments were purchased only to wriggle out of the complaint filed against the functionaries, at this stage, does not appear to be false, unless it is proved to die contrary by the petitioner during investigation. The contention of the learned counsel that the functionaries of the petitioner are not public servants and as such their cases cannot be investigated by respondent No,l is also of no avail to him as the amount being spent by the functionaries of the petitioner was out of public funds and the same were supposed to be spent for public purposes. If the said amount is misappropriated then it cannot be said that the petitioner cannot be prosecuted under the Anti-Corruption Laws.
10. However, this constitutional petition has not been filed by functionaries of the Board rather it was filed on behalf of the Board. The relief to the functionaries of the petitioner cannot be granted in absence of any proper petition on their behalf.
11. For the foregoing reasons, this constitutional petition having no merits is dismissed in limine.