Abdul Ghaffar petitioner/accused in case FIR No, 111/2011, dated 15.2.2011, under Section 420/468/471 PPC, Police Station Saddar Phool Nagar, District Kasur has sought pre-arrest bail through this petition.
2. As per contents of FIR lodged on 15.2.2011 on the application of Imran Khan against Rana Abdul Ghaffar, Rana Muhammad Abdul Sattar, Rana Muhammad Irshad, Nisar, Shakeel and Muhammad Akram, stamp vendor residents of Phoolnagar. It is alleged that Respondent No, 1 agreed to sell his agricultural land measuring 33- Kanals 16-Marlas situated in village Guggasaraiy in consideration of Rs, 30,00,000/- and also handed over the possession to the petitioner by receiving advance sum of Rs, 17,00,000/- through agreements to Sell No, 1120 dated 03.12.2010 and No, 1133 dated 08.12.2010 in favour of the complainant whereby remaining consideration amount of Rs, 13,00,000/- was agreed to be paid on 03.2.2011 at the time of completion of sale; that later on Respondent No, 1 with mala fide intention while conniving with Muhammad Akram stamp vendor and other respondents got issued an antedated stamp Paper No 758 dated 14.10.2010 and thus manoeuvred a forged and fabricated agreement to sell pertaining to the same land in favour of his real brother Respondent No, 2 on the said stamp paper to avoid completion of sale in favour of complainant and also used the forged document against him; that Naseer Ali and Rana Abdul Khaliq are witnesses of the said occurrence.
3. Abdul Ghaffar petitioner/accused of the FIR lodged an application for pre-arrest bail under- Section 498 Cr.P.C. before the learned Additional Sessions Judge, Pattoki, which was dismissed for want of jurisdiction vide order dated 22.7.2011 in the following manner: "---2. In this Case for offence u/S. 420/468/471 PPC alongwith others stamp vendor is also an accused. The stamp vender falls in the definition of public servant. As such, as per schedule of the Criminal Amendment Act 1958, this Court has no jurisdiction to entertain the matter. Accordingly, application is dismissed."
4. Being aggrieved of the above order petitioner has lodged this application.
5. At the outset learned DDPG for the State raised an objection that one of the accused namely Muhammad Akram stamp vendor is a `public servant' in terms of Section 2 of the Prevention of Corruption Act, 1947; that scheduled offences in terms of Criminal Amendment Act 1958 are exclusively triable by the Special Judge Anti-Corruption and that petitioner should have invoked the jurisdiction of the relevant Court in the first instance before approaching this Court. This argument is resisted by learned counsel for the petitioner contending that a stamp vendor does not fall within the definition of a 'public servant' in terms of Section 21 of the Pakistan Penal Code 1860.
6. I have given patient hearing to the learned counsel for the parties, learned DDPG for the State and perused the record.
7. The moot point in this petition is as to whether a stamp vendor falls within the definition of 'public servant'. To understand the proposition relevant provision of Section 21 of the Pakistan Penal Code, 1860 is reproduced as under: "Section 21:--The words "public servant" denote a person falling under any of the descriptions hereinafter following namely: First to Eight ------------------------------ 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 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; Explanation 1. Persons falling under any of the above description are public servants, whether appointed by the Government or not."
8. The test to determine whether a person is an officer within the meaning of Section 21 clause Ninth of Pakistan Penal Code 1860 is laid down in the case of Crown us. Abdul Rehman (PLD 1950 Lahore 361). The relevant extract whereof is reproduced as under: "According to that evidence the head treasurer can be appointed and dismissed by the contracting treasurer only with the consent of the Deputy Commissioner. His duties are to receive all moneys on behalf of Government and to maintain a correct account of all such receipts. The moneys received or paid by the contracting treasurer or by his agents and employees such as the respondent, are received and paid on behalf of Government out of the public revenues allotted as commission to the contracting treasurer the treasurer must get a minimum salary, the contracting treasurer being competent to pay him more from his own resources. This evidence is based on certain Standing Orders of the Financial Commissioners which are mentioned in the evidence of Mr. Zahur Ahmad, Inspector of Treasuries, Punjab Government, was examined by us. There can therefore, be no doubt that the respondent was an officer whose duty it was as such officer to take, receive or keep any property on behalf of the Crown. He could also be said to be an officer in the service or pay of the crown or remunerated by fees or commission for the performance of a public duty. Accordingly, he Was a public servant within the meaning of clause (ninthly) of Section 21 of the Penal Code. The cases of Modun Mohun ILR. 4 Cal. 376 and Bhagwati-Sahai ILR 32 Cal. 664 relied on by the learned counsel for the respondent to support the argument that the respondent was not a public servant are distinguishable, because in the former the money was received by the podder on behalf of the Bank of which he was an employee and not on behalf of Government, and in the latter the person concerned was appointed by the Sub-Registrar and was paid out of an allowance fixed for the Sub-Registrar without any restriction on his powers to employ the staff for his establishment. In the present case the position is wholly different because the District Treasury, where the respondent was employed, is a Government Treasury where all moneys are received by the contracting treasurer or' his employees and servants on behalf of Government. It is true that a fixed amount out of the public revenue is allotted to the contracting treasurer as his commission or fees for the work that he performs, and that with the consent of the Deputy Commissioner he is competent to employ his own servants, but that does not make the contracting treasurer himself or his agents and servants working at the treasury anytheless public servants. The designation and salary of the members of the contracting treasurer's staff, including the treasurer, is prescribed by the rules; the place where they work is a public office; and the functions they discharge are public functions. I have, therefore, no doubt that the respondent, while performing his duties as head treasurer, was a public servant and that the receipt of money as illegal gratification by him amounted to an offence under Section 161 of the Penal Code."
9. The appointment of a stamp vendor is made under the Punjab Stamp Rules, 1934 framed in exercise of the powers conferred by Section 4 of the Stamp Act, 1899, and clauses (a) and (d) of Section 27 and sub-section (1) of Section 34 of the Court Fees Act, 1870 by the District Government vide grant of license to any person. Rule 22 of the Rules (ibid) defines clauses of vendors as under: "Vendors.--There shall be two clauses of vendors, namely-- (a)ex-officio vendor as defined in rule (f): (b)licensed or specially licensed vendor as defined in Rules 1(g), (h) and (i),"
10. In the instant case record shows that Muhammad Akram co-accused was a licensed vendor: It is also evident on the record that the Additional District Collector vide his order dated 10.5.2011 after conducting an inquiry into the matter in hand finding him involved in fraudulent/criminal acts and his record/character of dubious nature, has cancelled his stamp vending license with a direction to the Assistant Commissioner, Pattoki to seal the business premises and confiscate the stamp vending register/record from the stamp vendor forthwith and cosign the same in the Judicial Record Room immediately.
11. Rule 28 lays down number of conditions to regulate the work and duties of a licensed vendor.
Simultaneously, Rule 34(ii)(iii) prescribes the remuneration of vendors as under: "Rule 34:-- --(ii) Commission allowed on Court-fee stamps.--Every licensed vendor of Court-fee stamps shall be entitled to discount at the rates of annas eight percent on the value of every Court-fee stamps purchased by him from an ex-officio vendor provided that he shall not be entitled to any such discount when the total value of stamps purchased at any one time is less than Rs, 5 nor or any sum in excess of a multiple of Rs, 5.
(iii) Commission allowed on non-judicial stamps.--Every licensed and specially licensed vendor of non-judicial stamps shall be entitled to discount at the rates specified in the following schedule on the value of every non-judicial stamps purchased by him from an ex-officio vendor: provided that discount shall not be allowed on the value of any stamp of a kind not specified in the said Schedule nor when the total value of the stamps purchased at one time is less than Rs, 5."
12. In the light of above legal position it is crystal clear that a stamp vendor appointed by the District Collector receives the stamps from the Government Treasury for sale to the public and receives commission out of the public revenue for performance of his work. He is also duty bound to maintain the correct account and record of all such receipts and sale of stamp papers on the Registers prescribed for this purpose. Therefore, I have no doubt in my mind to reach the conclusion that with the issuance of license by the District Collector he is in the service of the Government entrusted with performance of a public duty on behalf of the Government and thus he falls within the definition of public servant in terms of Section 21 clause ninth of Pakistan Penal Code 1860 Land Section 2 of Prevention of Corruption Act, 1947 read with Criminal Amendment Act, 1958.
As such offences alleged against Muhammad Akram stamp vendor one of the accused of the FIR makes it a case triable by the Special Court having exclusive jurisdiction in the matter.
11. As a sequel to the above, petitioner may in the first instance avail efficacious remedy before the appropriate forum. However, in the interest of justice he is allowed protective bail uptil 16.8.2011 in order to enable him to approach the relevant forum. This concession of protective bail will automatically lapse on 16.8.2011. This petition is disposed of accordingly.