ABDUL SAMI KHAN, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has sought quashing of proceedings pending before learned Special Judge, Anti-Corruption Establishment, Multan camp at Khanewal in case F.I.R. No,34 of 2009, dated 13-6-2009 registered at Police Station Anti-Corruption Establishment, camp at Khanewal in respect of an offence under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
2 Precisely, the germane events forming the background of this writ petition are that the petitioner along with other got registered Citizen Community Board in Union Council No,15 under section 98 of the Punjab Local Government Ordinance, 2001 and entered into an agreement with District Government according to which the petitioner's Citizen Community Board has to arrange 20% contribution whereas rest of 80% contribution was to be arranged/afforded by the District Government. As per provided project cost the District Government gave share of its support as Rs,12,28,640 and the petitioners started work at site but unfortunately due to repeated intervention of big-wigs as well as the bureaucrats of the locality the work could not be carried out. Thereafter the petitioner came to know that during above said intricacy some Audit Team has conducted the audit of Citizen Community Board without associating the petitioners on the special instructions of.
District Coordination Officer, Khanewal who also constituted a separate Committee. The said Committee submitted report to EDO (CD), Khanewal who on the basis of said report and audit inspection wrote a letter to Additional Director, Anti Corruption Establishment, Multan with covering letter of District Coordination Officer, Khanewal for registration of case against different Citizen Community Board. Consequently the above said F.I.R. Has been registered against the petitioner/Citizen Community Board. The investigation was conducted and without associating any officer with the investigation report under section 173, Cr.P.C. Was submitted before court of learned Special Judge, Anti-Corruption, Multan. During the proceedings the petitioners submitted an application under section 249-A, Cr.P.C. Which was dismissed. Hence, this petition for quashing of proceedings pending before the learned Special Judge, Anti-Corruption, Multan, camp at Khanewal .
3. The learned counsel for the petitioner contends that the petitioners & not come under the definition of public servant, hence the proceedings pending with the learned Special Judge, Anti- Corruption, Multan are corum-non judice and the same are liable to be quashed. During the audit proceedings the petitioners were not given opportunity to explain their position. Even during the investigation no officer from District Government was associated which shows partiality of the Anti- Corruption Department. The impugned F.I.R. Has been registered without conducting preliminary inquiry which was a pre-requisition and mandatory. The Citizen Community Board is a non- profitable Organization and it raises funds through voluntary contribution, gift, donation, grants and endowments for its declared purposes and it also receives cost, share support from Local government also, in case if needed, therefore, the petitioners have no personal interest in the work to be conducted at site. The Citizen Community Board entered into a civil agreement for execution of work at site and its completion, if some deviation of the terms and conditions of agreement caused then there are many remedies available under the civil laws rather than setting the criminal machinery into motion. All the decision of Citizen Community Board is executed through its Secretary and Chairman but they have no independent authority to take any step on their own. It is nowhere mentioned that the project would be considered as project of the Local Government and it would be supervised by it, therefore, the learned Judge failed to appreciate the law on the subject. The learned counsel for the petitioner relied upon PLD 1963 Dhaka 839, PLD 1963 Dhaka 139 and 1991 SCMR 994.
4. On the other hand the learned Assistant Advocate-General vehemently opposed this petition and controverted the points raised by the learned counsel for the petitioners and submits that the petitioners fall under the definition of public servant. A huge amount has been misappropriated in this case by the petitioners and the learned Special Judge, Anti-Corruption, Multan, camp at Khanewal has rightly dismissed the application of the petitioner moved under section 249-A, Cr.P.C.
5. After hearing, the learned counsel for the parties and going through the documents appended with this writ petition as well as the case-law produced by them it has been noticed by this Court that the Citizen Community Board was established for energizing the community for development, improvement in service delivery, development and management of new or existing public facilities and amenities in which welfare of handicap destitute, widows and families in extreme poverty are- to be required but instead of gratifying the above said glorified mission the petitioners have alleged to have embezzled a huge amount for which they were prosecuted under the provisions of Anti- Corruption Establishment. During the arguments the learned counsel for the petitioner has seriously questioned the jurisdiction of the Special Judge, Anti-Corruption, Multan and tried to establish that the Citizen Community Board does not fall within the definition of public servant, therefore, the proceedings before the learned Special Judge, Anti-Corruption, Multan camp at Khanewal are abuse of process of law but I have remained unable to subscribe to this submission of the learned counsel for the petitioner as section 409, P.P.C. Is very much clear in this regard which is reproduced as under:-- "409. Criminal breach of trust by public servant or by banker, merchant or agent.
' Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
' From the above said provision of law it has become crystal clear that the petitioners' Board fall under the definition of section 409, B P.P.C. Which is triable by the learned Special Judge, Anti- Corruption Establishment by virtue of the schedule provided in Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) wherein it has specifically been mentioned as under:-
(b) Offences punishable under sections 403 to 409, 417 to 420, 465 to 468, 471 and 477A of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such."
' If this is not enough the law is quite settled on the point that if the unds were provided to any Board by the government exchequer for use if public purposes, the persons associated with discharging of their functions by using the public funds, were deemed to be public servant though they could not be government employees or receiving their own salaries/remuneration from the government and if the amount provided to the said Board is misappropriated, then if could not be said that the Board could not be prosecuted under the Anti-Corruption Laws. Reliance is placed on the case of Nida-e-Millat, Citizen Community Board, Multan through Chairman v. Director, Anti- Corruption Establishment, Multan Region, Multan and 8 others (2010 YLR 643).
6. In addition to my discussion mentioned in preceding paragraph I may also observe here that through this writ petition the petitioner intends to resolve certain factual controversy which I am afraid that while sitting in writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court cannot resolve factual D controversy in summary manner without recording evidence which exercise of course is the job of the learned Special Judge, Anti- Corruption, Multan camp at Khanewal and this Court would not like to scuttle or stifle the said job of the learned trial court at such a stage of the trial. The petitioners ought to have established their innocence before the learned trial court by producing evidence rather than shutting down the door of controversy in a slipshod manner.
7. For what has been discussed above I have not seen any force in this petition to quash the proceedings pending before the learned Special Judge, Anti-Corruption, Multan camp at Khanewal and this writ petition is, therefore, dismissed.