1. ' The appellant Moosa Karim was employed as clerk in the office of Sind Small Industries Department, Karachi, when on 6th December, 1976 he demanded Rs, 1,000 as illegal gratification from complainant, Umer Abdullah for issuing to him five release orders of Bidi leaves. The complainant brought this matter to the notice of the Anti-Corruption Police and lodged F. I. R.
2. Thereupon the said police called two Mashirs namely Maqsood and Tang Javed and arranged a trap under the supervision of the First Class Magistrate. After noting down the numbers of ten notes of Rs, 100 denomination, Syed Athar Ali Naqvi, the Inspector A. C. E. Handed over the same to the complainant to be passed on to the appellant. Thereafter the whole of the raiding police party proceeded to the appointed place which was a sugarcane juice shop on Shahrah-e-Iraq. While the complainant accompanied by the two Mashirs went to the shop and started taking juice with the appellant who also reached there as per appointment, the rest of the raiding party waited at the nearby taxi-stand. After the tainted money was delivered to the appellant, the complainant waved signal to the waiting raiding party who thereupon rushed to the spot. Disclosing his identity and the identity of the raiding party to the appellant the Magistrate seized the appellant and called upon him to return the tainted money he had received from the complainant. The tainted money that he was still holding in his hand was returned by him. After securing the tainted money from the appellant's possession, the Inspector Naqvi drew up necessary Mashirnama incorporating therein all the details of the raid. Following the completion of the usual investigation, the appellant was placed on trial. By judgment. Dated 30-12-1981, the appellant was convicted under section 161, P. P.
3. C. Read with section 5(2), A. C. Act, 1947 and sentenced to R. I. For six months and fine of Rs, 2,000 or in default R. I. For one month, by Special Judge Anti-Corruption (Provincial), Karachi. The present appeal has been preferred from the said judgment.
4. ' As a preliminary objection, the learned counsel for the appellant attacked the impugned judgment as being without jurisdiction and hence ultra vires and void ab inizio. His argument was that appellant was not a public servant at the time of commission of the offence and as such the Special Judge Anti-corruption had no jurisdiction in his case and consequently the conviction of the appellant was not sustainable in law. In support of his contention he placed reliance on unreported judgment of this Court delivered on 24-8-1982 in the case of Nazeer Ahmed and 2 others v. The State (Criminal Miscellaneous No, 413 of 1981). In the said judgment the learned Single Judge has inter alia based his decision on the Lahore case Ikram Ali v. The State (1).
5. ' It would appear from the Pakistan Criminal Law (Amendment) Act, 1958, that the Courts of Special Judge have been constituted for trial of "public servants" in respect of offences specified in the schedule of the said Act. Clause (b) of section 2 of the said Act reads as follows : "Public servant means a public servant as defined in section 21 of the Pakistan Penal Code and includes an employee of any corporation or other body or organization set up, controlled or administered by or under the authority of the Federal Government."
6. In the instant case the appellant is undoubtedly an employee of corporation namely Sind Small Industries and Handicrafts Development Corporation which is the creature of provincial statute known as the said Small Industries and Handicrafts Development Corporation Act, 1972. Obviously the corporation is a provincial institution. As required by clause (b) of section 2 of the 1958 Act hereinabove, it is neither set up nor controlled by the Federal Government. As such the appellant does not fall under the later part of the definition of "public servant" given in the said clause.
7. ' The next question that arises is whether he meets the requirements of section 21 of the Pakistan Penal Code. Section 21, P. P. C. Reads as under : "Section 21. "Public Servant".-The words "Public servant" denote a person falling under any of the descriptions hereinafter following, namely :- First.-Every covenanted servant of the State ; Second.-Every commissioned Officer in the Military, Naval or Air Force of Pakistan while serving under the Central Government or any Provincial Government ; Third.-Every Judge ; Fourth.-Every officer of a Court or Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or take charge or to dispose of any property, or to execute any judicial process or to administer any oath, or to interpret, or preserve order in the Court ; and every person specially authorized by a Court of Justice to perform any of such duties ; Fifth. Every Juryman, assessor or member of Panchayat assisting a Court of Justice or public servant ; Sixth.-Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority ; Seventh. -Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement ; Eighth.-Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety, or convenience ;
(I) PLD 1980 Lab. 597 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 to 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 ; Tenth. Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessm ent or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town, or district ; Eleventh.-Every person who holds any office in virtue of which he is empowered to properly publish, maintain or revise in the electoral roll or to conduct an election or part of an election."
8. After careful perusal of the above section, I am of the view that the appellant, as clerk of the aforesaid corporation, is not covered by any of the clauses of section 21. In the Lahore case of Ikram Ali, the petitioners were employees of Punjab Agricultural Development and B Supplies Corporation, a statutory body constituted under the Provincial Act. Therefore the view taken by the Hip Court was that they were not covered by the definition of "public servant" as given in clause (b) of section 2 of the 1958 Act. They were also held as not falling within the ambit of section 21, P. P. C.
9. ' In the unreported case of Nazeer Ahmed of this Court, his Lordship observed : "I agree with the contention of the learned Advocate for the applicants that the applicants do not come within the definition of public servants under section 21 of the Pakistan Penal Code, as they are the employees of the Sind Small Industries Corporation, which is a statutory and autonomous body and as such the assumption of jurisdiction by the learned Special Judge Anticorruption in respect of the case in question was without lawful authority ............. 7, For above reasons the argument of the learned counsel for the appellant that the appellant was not a public servant at the time of commission of the offence has considerable force.
10. Consequently the Special Judge who has exclusive jurisdiction to try only public servants for offences mentioned in the schedule of 1958 Act could not prorxed c against him. Therefore the appeal is alloyed and conviction and sentence passed by the said Judge in respect of the appellant being without jurisdiction are hereby set aside. Although technically the prosecution can re-open the case by taking it to tie Court having jurisdiction, it will not be justified to have re-course to such action after the case has lingered on for nearly a decade in the Court of Special Judge and the appellant has suffered the agony of protracted trial for all these years.