1. Applicant above named, being aggrieved by order dated 21st October, 1975 of the Special Judge Anti-Corruption (Central) Karachi, passed on applicant's applications under section 253, Cr. P. C.
2. Dated 27-9-1975 and 16-10-1975, in case No. 23, 74, by which applicant's said two applications were dismissed, has preferred the above Petition, on the following facts and grounds Applicant Faqir Muhammad Malik was challaned on 9-7-1974, by Pakistan Special Police Establishment for the offences punishable under sections 409, and 477-A of P. P. C., read with section (2) of Prevention of Corruption Act. It is alleged that the applicant while holding the pest of Manager, National Bank of Pakistan, Defence Housing Society Branch, committed various malpractices by decreasing the balance of some accounts and correspondingly increasing the balance of other accounts, without any authority. In this way the applicant was alleged to have afforded spurious credits to accounts of certain interested customers by falsifying the books of accounts. In particular the applicant was alleged`-to have reduced from the account of Defence Housing Society with said-Branch,-an amount of Rupees three Lacs on 2-10-1968, an amount of Rupees two Lacs, on 14-11-19158 and an amount of Rupees One Lac on 17-3-1969. Trial of the case had started.
3. On 27-9-1975 five prosecution witnesses were present and out of them second witness was under examination, when learned Advocate for the applicant moved an application under section 253(2) of Cr. P. C. For discharge of the applicant: Notice of said application was given to the Prosecutor and on 16-10-1975 learned Advocate for the applicant moved another application for discharge of the applicant, on an additional ground.
4. The learned trial Court after hearing the learned Advocate for the applicant as well as State counsel dismissed applicant's applications vide common order dated 21-10-1975 and consequently the applicant has filed the above petition, on the grounds mentioned in the memo. Of petition. In addition to the grounds mentioned in the memo. Of above petition, the learned counsel for the applicant vehemently argued before me, that the applicant was not "public servant" within the meaning of section 2(b) of the Pak. Cr. Law Amendment Act, 1958 and as such the assumption of the jurisdiction by the learned Special Judge was unlawful, though this ground was not pressed before the learned trial court, according to the impugned order. Since this is a legal ground, I permitted the learned Advocate to make his submissions in this connection as well, before me.
5. The learned Advocate for the applicant raised following two contentions before me and at great length made his submissions and relied upon various authorities in support of these contentions
(a) That the applicant was not "public servant" within the meaning of section 2(b) of Pak. Cr. Law Amendment Act, 1958 and as such learned Special Judge wrongly assumed the jurisdiction and con--sequently on this ground alone the applicant was entitled to discharge and the proceedings in question are liable to be quashed by this Court.
(b) That the letter of sanction, addressed in compliance with section 6(5) of the Pak. Cr. Law Amendment Act, 1958 to the Ministry of Interior was misconceived, when admittedly the applicant's services were Connected with the Ministry of Finance and as such the said letter ought to have been addressed by the learned trial Court to the Ministry of Finance, under which National Bank of Pakistan is supposed to be working. In view of this the learned trial Court failed to comply with the provisions of section 6(5) of Pak. Cr. Law Amendment Act, 1958 before proceeding with the trial in question and on this ground also the trial has been vitiated and applicant was entitled to discharge and the proceedings in question are liable to be quashed by this Court.
6. I will take up the Second contention of the learned-Advocate for the applicant first, as this contention of the learned Advocate for the applicant has lost force, in view of the decision of the Hon'ble Supreme Court reported in PLD 1981 SC 642. According to this decision of the Hon'ble Supreme Court, if the applicant ceased to be a public servant, the sanction for his prosecution was not necessary. In the present case it is an admitted position that the services of the applicant were terminated on 13-4-1970, before, A commencement of the trial in question and as such it was not necessary to obtain sanction for his prosecution, in accordance with the provisions of section 6(5), Pak. Cr.- Law Amendment Act, 1958 in view of the law laid down by the Hon'ble Court in PLD 1981 SC 642. Therefore the second contention raised by the learned Advocate for the applicant has no force now and as such it is not necessary for me to decide the point raised by the learned Advocate for the applicant in this petition.
7. I would now take up the first contention raised by the learned Advocate for the applicant, that the applicant is not "Public servant" within the meaning of section 2(b) of Pak. Cr. Law Amendment Act, 1958. The learned Advocate for the applicant in support of this contention submitted, that though after amendment of section 2(b) of Pak. Cr. Law Amendment Act, 1958, in 1977, employees of National Bank of Pakistan came within the definition of Public Servant, but at the time when alleged offences were committed and challan submitted, the definition of section 2(b) of Pak. Cr. Law Amendment Act, 1958, as it stood then, did not apply to the applicant, as National Bank of Pakistan was not a corporation set up by the Executive act of the Central Government, but was established by legislature under section 42 of the then Government of India Act, 1935, which was in force, when the National Bank of Pakistan was established. In support of this contention, the learned Advocate for the applicant relied upon cases reported in PLD 1975 Kar. 182, PLD 1977 SC 453, PLD 1974 SC 146 and unreported judgment in C. P. 423/71 of this Court and submitted that the relationship of master and servant existed between the employees of the Bank and the Bank and therefore assumption of jurisdiction by the learned Special Judge was without lawful authority and consequently applicant's applications were wrongly dismissed and therefore the impugned order is liable to be set aside and proceedings pending against the applicant are liable to be quashed.
8. The learned counsel further submitted, that case reported in 1979 P Cr. L J 995, was not at all applicable to present case, as it related to definition of "public servant" under section 2(b) of Pak.
9. Cr. Law Amendment Act, 1958, after its amendment in 1977.
10. The learned Advocate appearing for National Bank of Pakistan on the other hand submitted, that applicant was a "public servant", within the meaning of section 2(b) of Pak. Cr. Law Amendment Act, 1958, as it stood, before the amendment of 1977, as National Bank of Pakistan was set up and established by Central Government. The learned counsel for the National Bank of Pakistan further submitted, that the contention of the learned Advocate for the applicant, that amendment of 1977 was brought in to cover lacunas in the law, in order to cover employees of statutory Corporations, was misconceived. The learned counsel submitted, that the said amendment became necessary on account of Nationalisation and take over of certain industries and concerns by the Government and it was not made to fill in lucuna, as suggested by the learned counsel for applicant, as there was no such lucuna in the clause 2(b) of Pak. Cr. Law Amendment Act, 1958. The learned State counsel adopted arguments advanced by the learned counsel for National Bank of Pakistan.
11. I have carefully considered the above submissions made by the learned counsels before me and have gone through the impugned order as well as cases cited by the learned Advocate for applicant before me.
12. In order to appreciate the arguments advanced by the learned Advocates before me, it is necessary to reproduce-the wordings of section 2(b) of Pak. Cr. Law Amendment Act, 1958, as it stood then, which reads as under :- "Public servant" mean a public servant as defined in section 21 of Pakistan Penal Code, an employee of any corporation or other body or organization set up by Central Government."
13. It is clear from the wording of above definition of public servant, that all the employees of even statutory corporations set up by Central Government, would come within the said definition.
14. The contention of the learned counsel for applicant, that National Ban of Pakistan was not set up by Executive act of the Central Government, a it was established by legislative powers of the Governor-General, has no force at all. The Executive Decisions of the Central Government, would only be implemented for setting up of such institution like National Bank of Pakistan, by legislation.
15. Since Central Government decided. To set up National Bank of Pakistan, soon after independence, the same was set up by Central Government, by National Bank Ordinance, 1949 and consequently, all the employees of said National Bank of Pakistan, became public servants, within the definition .Of section 2(b) of the Pak. Cr. Law Amendment Act, 1958, as it existed then, without taking into consideration the amendment of the definition of "Public servant", which was brought about in 1977.
16. Therefore, I find no merits in the above petition, which is consequently dismissed.