The petitioner has applied to this Court for the quashment of the case pending against him before the Special Judge Anti---Corruption-cum-Inquiry Officer, Hyderabad. At Karachi under section 161; P. P. C. Read with section 5(2) of Act II of 1947.
2. Upon a report lodged With the Anti-Corruption Police on 6th January 1964, the petitioner, a drainage mistri, in the service of the Karachi Municipal Corporation, was apprehended after accepting bribe money in the sum of Rs. 250. It was alleged that n a sum of Rs. 500 was demanded for getting sanction for the installation of a new pipe, which was installed unauthorizedly by the complainant and removed by the petitioner. About a week earlier, Rs. 50 was paid to the petitioner and the balance was paid on the day of the incident. Sanction was recorded on 26th February 1964 and challan was submitted against him in the Court of the Special Judge on 28th. December 1965 at Hyderabad under section 161, P. P. C. Read with section 5(2) of Act 11 of 1947. Between 28th December 1965 and 24th May 1967 no evidence was recorded and on the latter date an application was filed before the learned Special Judge, in which the validity of the sanction was challenged.
The learned, Special Judge vide order dated 27th November 1967 dismissed the application. Upon this, the petitioner applied to this Court on 12th December 1967 for the quashment of the proceedings and on 19th December 1967 the petition was admitted to regular hearing and stay of the proceed--ings was granted.
3. On behalf of the petitioner it is argued that the term `public servant' in section 2(b) of the Pakistan Criminal Law Amendment Act, 1958 as amended by Act XII of 1965 does not q include an employee of the municipal committee, such as the Karachi Municipal Corporation, and therefore, his trial before the Special Judge was without jurisdiction. His main stay is the addition of the words in the definition of the term `public servant' namely, "and includes an employee of any corporation or other body or organisation set up by the Central Government" vide Act XII of 1965. He further relied on the amended definition of the term `public servant' in East Pakistan vide Act III of 1967, where the added words are :- "and includes a Chairman, Vice-Chairman, Member, officer or other employee of a local council as defined in the Basic Democracies Order, 1959 or of a Municipal Committee, or a Chairman, Director, Managing Director, Trustee, Member, Officer or other employee of any Corporation or other body or organisation constituted or established under any law."
He has also cited a judgment on the same point by a learned Single Judge of this Court in Criminal Misc. Application No. 249 of 1968, wherein it was observed :- "7. The counsel for State when a9ked has no proper reply to this objection of the petitioner. The next point raised for the petitioner was that assuming he is the person accused, still no prosecution could be launched by the Anti-Corruption Police against him, as offence is alleged to have been committed in December 1964 and at that the, he as a Senior Clerk K. D. A. Was not a `public servant' for the purpose of the then existing Anti-Corruption Laws, as these laws were made first applicable to public corporation and organizations by virtue of Anti-Corruption Laws Amendment Act, 1965, Act XII of 1965 and this law was promulgated on 3-8-65 and no retrospec--the effect can be given to these laws for an offence committed in December 1964, because his substantive legal rights; in that case would be in jeopardy, had he been tried under ordinary law for the offence alleged he could be awarded a 'maximum punishment of 2 years; while under such laws for these offences petitioner can be sent to prison for seven year's imprisonment and this he argues could not be the intention of the Legislature and Act XII of 1965 does not specifically makes applicable these laws with retrospective effect., No satisfactory reply was given by the learned counsel for the opponent."
4. I have considered his contention but I regret I do not find any substance in it. 'The term `public servant' has not been defined in section 2(b) of the Pakistan Criminal Law Amendment Act, 1958, but it only refers to such persons who are enumerated as such in' section 21, P. P. C. The petitioner, according to the learned counsel for the parties, with which opinion I agree, is not one who falls in the category of those persons enumerated in section 21, P. P. C. However, in section 127 of the Municipal Administration Ordinance, 1960, Article 97 of the Basic Democra--cies Order, 1959 has been incorporated as applying to municipal committees. By virtue of this incorporation end the language of section 127 a drainage mistri, who is admittedly an employee of the Karachi Municipal Corporation, becomes a public servant according to the language of these provisions which read :- "97. Every member and every servant of a local council, and every other person duly .Empowered to at on behalf of local council shall be deemed to be a public servant within the meaning of section 21, P. P. C. (Act XLV of 1860).
127. Other Miscellaneous. Matters.-The provisions of Articles 94, 95, 96, 97 and 98 in Chapter V of the Order shall mutatis mutandis apply to municipal committees as they apply to local councils as if the said provisions had been enacted in this Ordinance, and:
(a) any reference to a local council were a reference to a municipal committee ; and
(b) any reference to the Order were a reference to this Ordinance."
The result, therefore, is that by incorporation, an employee of a municipal committee, is also included in the definition of the term `public servant' in section 21, P. P. C In this view of the matter the petitioner will be deemed to be a public servant within the meaning of section 2(b) of the Pakistan Criminal Law Amendment Act, 1958.
5. The learned counsel for the petitioner however attempted to argue that the amendment should have been made in section 2 (b) itself in order to achieve the result and that not having been done, no reliance can be placed on. Article 97 of the Basic Democracies Order as incorporated in section 127 of the Ordinance. This could have been a legitimate argument if the public servant had been defined in section 2(b) of the Pakistan Criminal Law, Amend--ment Act, 1958 ; but this is not so, and the definition of the term public servant' is relied on what is given in section 21, P. P. C. Which is now deemed to include an employee of the municipal committee by incorporation. The amendment of Pakistan Criminal Law Amendment Act, 1958, by Act III of 1967 in East Pakistan, was in my view, by way of added caution, for there is no doubt in the meaning of the term `public servant' having regard to the provisions referred to above. The amendment by Act XII of 1965 in the definition of the term 'public servant' also does not advance his case any further. The words "and includes" merely enlarge the definition of the term `public servant' to include such other category of persons who would not normally fall within the definition of the term `public servant' in section 21, P. P. C.
Accordingly such an addition would not lead to the conclusion that the employees of municipal committee were not public servants before the amendment of section 2(b) of the Pakistan Criminal Law Amendment Act, 1958. The judgment of my learned brother, Khuda Bakhsh Marri, J., proceeds on a different ground, namely as to the retrospective effect on the accrued substantive legal rights. Even in that case, the petitioner was employed. As a Senior Clerk in K. D. A. And by virtue ofArticle 121 of the Karachi Development Authority Order, 1957, he was deemed to be a public servant within the meaning of section 21, P. P. C. It is to be, noted that Article 121 was not cited' before the learned Single Judge and its effect had not been considered. In the circumstances, if I may say so respectfully, I do not agree with this line of reasoning, as, in my view, the question has to be considered and decided in the light of the definition of the terms `public servant' having regard to the other provisions discussed above. There is, therefore, no substance in this petition which is accordingly dismissed,