RUSTAM S. SIDHAW, J: --This judgment will dispose of eight criminal appeals namely Criminal Appeal No.129 of 1980 preferred by Anwar Aziz Chaudhry appellant, Criminal Appeal No.130 of 1980 preferred by MA. Suhail appellant, Criminal Appeal No.131 of 1980 preferred by Muhammad Tariq appellant, Criminal Appeal No.132 of 1980 preferred by Mr. Ahmad Ghazali appellant, Criminal Appeal No.133 of 1980 preferred by Mian Abdur Rahman appellant, Criminal Appeal No.10 of 1981 preferred by Masood Ahmad appellant, Criminal Appeal No.146 of 1981 preferred by Saeed Yousaf appellant and Criminal Appeal No.147 of 1981 preferred by Nasrullah Khan appellant against the consolidated judgment of a learned Single Judge of the Lahore High Court, Lahore, dated 4-2-1980 passed in Criminal Miscellaneous No.605/Q of 1977 dismissing the petitions filed by the said appellants under section 561-A, Cr.P.C. Seeking quashment of criminal proceedings pending against them under the Prevention of Corruption Act, 1947 and the Pakistan Penal Code in the Court of Chaudhry Ghulam Murtaza, Special Judge, Anti-Corruption, Lahore.
2. The brief facts with regard to the each of the appeals deserve to be separately stated.
Criminal Appeal No.129 of 1980
3. Anwar Aziz Chaudhry, appellant, was appointed as Managing Director of the Punjab Livestock, Dairy and Poultry Development Board (hereinafter to be referred to as `the Board') by the Governor of the Punjab vide Notification, dated 19th June, 1974. It was specifically provided therein that he would not receive any salary and that other facilities and conditions of service would be determined by Government later. The Governor of the Punjab was pleased to pass an order dated 29th July, 1974 whereby the terms and conditions of the appellant as Managing Director of the Board were determined. He was to receive a salary of Re.l per month and the other facilities as enumerated in the order. The appellant assumed charge of his office on 22-6-1974 and resigned his office on 12-7-1976, from which date he ceased to hold office. The appellant in his capacity as the Managing Director, filed an F.I.R. Against some of the employees of the Board on 9,7-1976. An F.I.R. Was registered on the basis of the letter addressed by the appellant. It is the case of the appellant that after assumption of power by the Army on 5-7-1977, a witch hunt started against every person who had been closely associated with the Pakistan Peoples Party. In the absence of any other material against the appellant, under the dictation of the Army Authorities, the very F.I.R.
Referred to above was made the basis of initiation of criminal proceedings against him and a challan was put up in the Court of Senior Special Judge, Anti-Corruption, Lahore, against him. The offences charged against the appellant were exclusively under section 5 of the Prevention of Corruption Act, 1947. Being aggrieved by the said proceedings, the appellant filed Criminal Miscellaneous No.605/Q of 1977 in the Lahore High Court for quashment of the said proceedings under section 561-A, Cr. P.C.
Criminal Appeal No.130 of 1980
4. MA. Suhail, appellant, was the sole proprietor of the firm known as `Riaz Associates', Lahore, which was carrying on the business of construction works in various Government Departments and was also on the list of approved Government contractors. In the year 1975, the Punjab Livestock, Dairy and Poultry Development Board invited tenders for the renovation of sheds Nos.3 and 4 of Millat Poultry Farm, Lahore. The tender submitted by the appellant's firm for the renovation of the said sheds was accepted by the Board vide its letter dated the 29th October, 1975. Thereafter a formal agreement was executed between the parties known as agreement No.14 of 1975-76. The said work was completed by appellant's firm within the stipulated period in accordance with the settled specifications. The Board made part-payment for the work done at site but the department delayed the final payment on one pretext or the other. The appellant, therefore on 9-7-1977 filed a suit in the Civil Court at Lahore. The dispute was referred to the arbitration of Syed Zafar Ali Shah, Deputy Managing Director, Lahore Development Authority (WASA Wing). After adjudication, the Arbitrator filed his award in the Civil Court at Lahore. It was held by the Arbitrator that an' amount of Rs.91,210.20 was due to the appellant's firm on account of the work done by it. However, on 21-1-1977, a criminal case was registered against some employees of the Punjab Livestock, Dairy and Poultry Development Board vide F.I.R. No.39 at Police Station DACE, Lahore, inter alia. On the ground that excess payment had been made to the appellant by the said officers over and above the scheduled rates and the appellant was also alleged to have been involved therein. A challan was filed against the appellant, before the Special Judge, Anti-Corruption, Lahore. Being aggrieved by the said proceedings the appellant filed petition Criminal Miscellaneous No.544/Q of 1977 in the Lahore High Court for quashment of the said proceedings.
Criminal Appeal No 131 of 1980
5. Muhammad Tariq, appellant, was the sole proprietor of the firm known as `Dawn Construction Company', Lahore which was carrying on the business of construction works in various Government departments and was also on the list of approved Government contractors. In the year 1975, the Punjab Livestock Dairy and Poultry Development Board invited tenders for the renovation of the Hatchery Building at Chhattar, Rawalpindi. The tender submitted by the appellant's firm for the said work was accepted by the Board, vide its letter dated 11-11-1975. Thereafter, a formal agreement was executed between the parties known as agreement No. 15. The said work was completed by the appellant's firm within the stipulated period, in accordance with the settled specifications. The Board made part payment on 18-3-1976 for the work done at site, but the department delayed the final payment on one pretext or the other. The appellant, therefore, on 9-7-1979, filed a suit in the Civil Court at Lahore. The dispute was referred to the arbitration of Syed Zafar Ali Shah, Deputy Managing Director, Lahore Development Authority, Lahore (WASA Wing), Lahore. After adjudication, the Arbitrator filed his Award in the Civil Court at Lahore. It was held by the Arbitrator in his award, dated 26-2-1980 that an amount of Rs.25,029.83 was due to the appellant firm on account. Of the work done by it. However, on 21-1-1977, a criminal case was registered against some employees of the Punjab Livestock, Dairy and Poultry Development Board vide F.I.R. No.39 at Police Station DACE, Lahore, inter alia, on the ground that over-payment had been made to the appellant by the said officers over and above the scheduled rates and the appellant was also alleged to have been involved therein. A challan was filed against the appellant before the Special Judge, Anti- Corruption, Lahore. Being aggrieved by the said proceedings, the appellants filed Petition Criminal Miscellaneous No.548/Q of 1977 in the Lahore High Court, Lahore for quashment of the said proceedings.
Criminal Appeal No.132 of 1980
6. Ahmad Ghazali, appellant, was employed on 16-5-1975 as Project Manager with the Punjab Livestock, Dairy and Poultry Development Board (to be hereinafter called `the Board) and remained in its service till 15-2-1976, when he tendered resignation and was relieved of the charge. After some months of his leaving the Board's service, the appellant learnt that a criminal case being F.I.R.
No.4, dated 21-1-1977 was registered at Police Station Directorate of Anti---Corruption, Lahore, wherein it was alleged that while in the service of the Board and posted as Project Manager, Cholistan, the appellant caused wrongful loss to the Government to the extent of Rs.1,428 in connection with the construction of a room of the tube-well situate in Cholistan. It was further alleged that the appellant had failed to account for the expenditure of the said amount and had misappropriated the same. The said room, it was alleged, could have cost only 6,000 as against the sum of Rs.6,750 shown to have been spent on it. It was also alleged that full receipts of expenses were not forthcoming and a sum of Rs.5,142 only was supported by receipts. On this basis, it was alleged that a total sum of Rs.1,428 had been misappropriated by the appellant and his co- accused Mr. Ahsan Al-Wadood. A challan was filed against the appellant before the Special Judge, Anti-Corruption, Lahore. Being aggrieved by the said proceedings, the appellant filed petition Criminal Miscellaneous No.515/Q of 1977 in the Lahore High Court, Lahore for its quashment.
Criminal Appeal No.133 of 1980
7. Mian Abdul Rahman, appellant, was the Managing Director of Boremaster Limited, a private limited company, engaged in the business of boring and installation of tube-wells.
In January, 1975, the appellant's company was approached by the Punjab Livestock, Dairy and Poultry Development Board, Lahore, for installation of a tube-well of two cusecs in Cholistan, District Bahawalpur, and after negotiating the terms, the company agreed to install the tube-well for a consideration of Rs.4 lacs. The Board vide its letter of intent No.PLD/OPS/75, dated 27-1-1975, conveyed to the company its requirements, which was reciprocated vide its letter No.BML/2081/75, dated 28-1-1975. The project was completed and handed over to the Board despite enormous problems and vide its letter No.BML/2143/75, dated 10-4-1975, the company wrote to the Board informing it of the completion thereto and having handed over the same to an authorised representative of the Board. The company also claimed payment of the balance amount of Rs.50,000. The Board vide its letter No.FIN/75/13/1830, dated 26-6-1975 returned the original Fidelity Bond and the Bank Guarantee. As far the payment of the balance amount the Board vide its letter No.FIN/PR/13/2149'1494, dated 17-7-1975 settled the accounts at Rs.21,481.50 after deducting some expenses said to be payable by the company in full and final settlement of accounts. In 1976. Some complaint was lodged by the Managing Director of the Board against its Senior Project Manager in respect of some misappropriation of funds, bogus purchases, excessive spending on repair and purchase of Board's articles like motor cars; air-conditioners, etc., and in the course of investigation thereof, the matter pertaining to the tube-well installed by the company was also examined. The Project was allegedly got assessed by Messrs Altaf Raees, Sub-Engineer, and Abdul Rashid of the Public Health Department, Bahawalpur, who are said to have found that the project had actually cost Rs.1,60,000 only as against Rs.4 laces paid to the company and as such a sum of Rs.2,40,000 was allegedly overpaid to the company. It was further alleged that the room, housing the tube- wells was constructed at the cost of Rs.6,000 only as against a sum of Rs.6,570 shown to have been spent thereupon. All receipts in respect of the expenses incurred on the said room. It was alleged, were not forthcoming and a sum of Rs.5,142 only was supported by receipts. In that view of the matter, it was alleged that a sum of Rs.1,528 had been misappropriated by Ahmad Ghazali, the Project Manager, and Mr. Ahsan Al-Wadood, the Project Incharge. On the basis of these allegations, F.I.R. No.4, dated 121-1-1977 under sections 409, 420, 468 and 109, P.P.C. With section 5 of the Prevention of Corruption Act, 1947 was registered at Police Station Anti-Corruption Establishment Directorate, Lahore, against Mian Abdul Rehman, appellant, the Project Engineer Mr. Abdul Oadir, the Project Engineer, Mr. Ahsan Al-Wadood, the Project Incharge and Ahmad Ghazali, the Project Manager. After some investigation, the challan was submitted in the Court of Special Judge, Anti- Corruption, Lahore. Being aggrieved by these proceedings, the appellant filed petition Criminal Miscellaneous No.535-Q of 1977 before the Lahore High Court, Lahore, for its quashment.
Criminal Appeal No.10 of 1981
8. Masood Ahmad, appellant, was owner of the firm known as 'Bolan Radios', which dealt with electrical goods and connected items. A representative of the Board approached the firm of the appellant for the construction of a freezer body over the chassis of a truck. The appellant showed his unwillingness as the firm was already much pre-occupied. However, on the persistent request of the representative of the Board, the appellant consented to manufacture such a freezer body as agreed between the parties. Accordingly, quotations were called for and the appellant's firm manufactured the truck, as agreed. The truck was guaranteed by an Indemnity Bond ensuring its smooth working for a period of one year. Accordingly the Pioneer Insurance Company Limited insured' the truck. There was no complaint or grievance whatsoever about the functioning of the ,truck and the truck was still working satisfactorily. That surprisingly the issue of the truck was dragged in alongwith many other issues and Case No.6 arising out of the F.I.R. No.13, dated 31st July, 1976 was initiated against the appellant and one. Ch. Nasrullah, an employee of the Board. A challan was filed against the appellant before the Special Judge, Anti-Corruption, Lahore. Being aggrieved by the said proceedings, the appellant filed petition Criminal Miscellaneous No.582/Q of 1977 before the Lahore High Court, Lahore seeking its quashment.
Criminal Appeal No.146 of 1981
9. Saeed Yousaf, appellant, was posted as Senior Project Manager in the Punjab Livestock Dairy and Poultry Development Board, Lahore. The appellant was appointed as a Senior Project Manager with effect from 12-8-1975 on ad hoc basis and his services were terminated with effect from the 31st of July, 1976. That the Anti-Corruption Establishment, on the basis of a report made to them by the former Managing Director of the Punjab Livestock, Dairy and Poultry Development Board, Lahore, registered a case against the appellant and others at Police Station, Anti-Corruption Establishment Directorate, Lahore, under sections 409/420/468 and 471, Cr. P.C. And section 5 of the Prevention of Corruption Act, 1947, on the allegation that the appellant, while posted as Senior Project Manager in the afore-mentioned Board, by abusing his position, had made certain bogus purchases or had spent excessive amounts on the repair and purchase of the Board's articles, such as motor cars, air-conditioners, etc. The police challaned the appellant under sections 409/420/468 and 471 of Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947, in the Court of the Special Judge, Anti-Corruption, Lahore. Being aggrieved by the said proceedings, the appellant filed petition Criminal Miscellaneous No.193 of 1977 before the Lahore High Court, Lahore, for its quashment.
Criminal Appeal No. 147 of 1981
10. Nasrullah Khan, appellant, was appointed as a Senior Project Manager in the Punjab Livestock Dairy and Poultry Development Board, Lahore, with effect from 1-2-1975. An F.I.R No.13, dated 31-7- 1976 was lodged by the former Managing Director of the said Board with the Anti-Corruption Establishment under section 409/420/468/471 and section 5 of the Prevention of Corruption Act, 1947 against the appellant and many others. The allegations against the appellant were that while posted as Senior Project Manager in the said Board, by abusing his position as Public servant, he misappropriated its funds, by making purchases at higher rates or spent excessive amount on the constructions carried out for the said Board, The Special Police split up the F.I.R. Into 13 challans, out of which the appellant was alleged to be involved in the first ten challans. All these challans were filed before Ch. Ghulam Rasul Azhar, Senior Special Judge, Anti-Corruption. Being aggrieved by the said proceedings in the said 10 challans Nos. 1 to 10, the appellant filed petition Criminal Miscellaneous No.552/Q of 1977 before the Lahore High Court, Lahore, praying for their quashment.
11. All the above quashment petitions of the present appellants, apart from those filed by other persons, came up for hearing before a learned single Judge of the Lahore High Court. In respect of those who were the employees of the Punjab Livestock, Dairy and Poultry Development Board (hereinafter to be referred to as the Board), it was submitted that they were not public servants and therefore proceedings before the Special Judge were illegal and without jurisdiction. In respect of the appellants and also those who were not the employees of the Board, factual matters were raised to show that there was no prima facie evidence against them to sustain the offences imputed to them and that therefore their cases deserved to be quashed. All these petitions were disposed of by a common judgment, dated 12-2-1980.
12. The learned Single Judge, after referring to the preamble and sections 15 3, 4, 13, 14, 15 and 22 of the Punjab Livestock, Dairy and Poultry Development Board Act, 1974, held:--- "16. The above brief picture of some of the provisions of the law shows the extent of the interest of the Government in the affairs and management of the Board, both pecuniary and functional. For all intents and purposes Government has created an organisation for looking after its functions on behalf of the Government in the sector of livestock development. This is very much a delegated function of the Government, as laid down in the case of Karim Bakhsh.
17.Government money by way of Government investments, grants and loans are to be placed at the disposal of the Board. Then it is common knowledge that loans from international financiary institutions are given only on the guarantee furnished by the Government. Government farms and projects could be handed over to the Board, apart from implementing and executing schemes approved by Government, all these functions are reminiscent of functions of a Government department. The performance of these functions certainly entails taking, receiving, keeping or expending any property on behalf of Government.
20. It is also necessary to refer to the provision of section 4(2). It provides that the Board in discharging its functions will act on national and commercial considerations. The reference to national considerations cannot be dismissed as inconsequential. It certainly entails public responsibilities, which ordinarily is a function of the Government. In the light of the above discussion, I have no hesitation in holding that the employees of the Punjab Livestock, Dairy and Poultry Development Board are public servants in the light of section 21 of the P.P.C."
The learned Judge held that such of the applicants as appeared before him who were employees of the Board were public servants within meaning of section 21 clause 9th of the Pakistan Penal Code and the cases before the Special Judge, Anti-Corruption, Lahore, were legal and proper. With regard to the separate pleas on facts taken up by the present appellants and some others before him in individual cases against them, those of the present appellants and some others were rejected.
13. Being aggrieved by the above-consolidated judgment, the present appellants petitioned the Supreme Court for leave to appeal, which leave was granted to determine whether officers of the Punjab Livestock, Dairy and Poultry Development Board were public servants within the meaning of clause 9 of section 21 of the Pakistan Penal Code, in view of the impugned decision of the learned Single Judge of the Lahore High Court being contrary to that of another learned Judge of the Lahore High Court reported in the case of Ikram Ali v: The State and another PLD 1980 Lah. 597.
14. On behalf of such of the appellants who are employees of the Board, it is submitted that there is no provision in the Punjab Livestock, Dairy and Poultry Development Board Act, III of 1974, declaring its employees to be public servants. It is submitted that the absence of such a section clearly shows that the Government intended that the employees of the Board should not be treated as public servants. It is further submitted that section 2(b) of the Pakistan Criminal Law Amendment Act (XL of 1958), does not cover the employees of the Board, as they are not employees of any corporation or other body or organisation set up, controlled or administered by, or under the authority of, the Federal Government. It is next contended that none of the clauses of section 21 of the Pakistan Penal Code covers the case of the employees of the Board. It is next contended that the Board is a body corporate having perpetual succession and common seal and is an autonomous commercial organisation, not charged with any public responsibilities and not under the control of the Government. It is further submitted that under the Board's Service Rules, 1974, the employees are the employees of the Board and not Government servants and that even though appointments of some of the officers of the Board is made by the Government, they continue to be employees of the Board and their salaries are paid by the Board. For the proposition that even where the autonomous bodies receive contributions from the Central or Provincial Government, or where Government exercises some control over it, it cannot be held that the employees of such autonomous bodies spend Government money or that they are in the service or pay of the Government, AX Muhammad Shamsul Haq Chaudhry v. The State PLD 1960 Dacca 1049 is referred.
Relying upon A. George v. Pakistan International Airlines Corporation PLD 1979 Lah. 748 it is submitted that where a Corporation is a statutory body created by an Act and is a legal entity with a personality of its own and is created as an autonomous Corporation with sufficient powers to control its day to day administration, free from ministerial control of the Government, it does not function as a Government department or as a servant or agent of the Government and though it may operate under some control of the Government, nevertheless it is not a branch of the Government and is distinct from the Government and the servants of the Corporation cannot be treated as servants of the State. Relying upon Ikram Ali v. State PLD 1980 Lah. 597 and Musa Karim v.
State PLD 1985 Kar. 720, it is submitted that such of the appellants as were employees of the Board were actually employees of a statutory Corporation which was a separate legal entity distinct from the Government that they received their salaries from the Board, that there was no nexus at all between them and the Government and they were therefore employees of the Board and not the Government and hence not public servants.
15. With regard to the separate pleas on facts taken up by the learned counsel for the appellants in each of the separate appeals, the same will be dealt with separately later.
16. On behalf of the State, the learned Additional Advocate General submits that such of the appellants who were employees of the Board were actually senior officers of the Punjab Livestock, Dairy and Poultry Development Board and by the very designation they carried they are "officers", as that term is understood in section 21 of the Pakistan Penal Code. It is further submitted that six projects (five livestock farms and one meat complex) which were earlier being run by the Government were given to the Board after its establishment for management and four projects (all of them livestock farms) were resumed by the Government from the Board and for the period 1974- 75 to 1984-85 Rs.552.53 million were given as loans and Rs. 73.82 million as foreign exchange by the Government to the Board for commercial projects, which were returnable with interest, and Rs.307.28 million to the Board as grant-in-aid. It is further submitted that the Board was wound up in September 1986 and all its on-going projects were taken over by the Government and that all liabilities left un-discharged, after all the properties and assets of the Board had been disposed of, were taken over by the Government as its own liabilities. In these circumstances, it is submitted that the officers of the Board took, received, kept or expended property on behalf of the Government and investigated and reported on matters affecting the pecuniary interest of the Government and made, authenticated or kept documents relating to the pecuniary interest of the Government, they fell within the definition of "public servant" as given in clause Nine of section 21 of the Pakistan Penal Code. In this connection the learned Additional Advocate-General refers to the Preamble and sections 1, 3 to 8, 13 to 15, 20 and 22 of the Punjab Livestock, Dairy and poultry Development Board Act, 1974.It is therefore submitted that by virtue of the duties which the employees as officers of the Board carried out, they come within the definition of public servant as given in clause Nine of section 21 of the Pakistan Penal Code. In this connection the learned Additional Advocate General refers to GA. Monterio v. State of Ajmer PLD 1957 SC (Ind.) 170, Nazimuddin v. The Qeen Empress ILR 28 Cal. 344, Karim Bakhsh v. State PLD 1962 Lah. 144, Abdul Khalek Patwari v. State 1968 PCr.LJ 869, Zabtey Khan v. State PLD 1972 Lah. 196 and State v. Abdul Raheem Khan PLD 1988 Lah. 802.
17. With regard to the separate pleas on facts taken up by the learned Additional Advocate- General in each of the separate appeals, the same will be dealt with separately later.
18. We have heard the arguments of the learned counsel for the appellants and the learned Additional Advocate-General, Punjab, on behalf of the State, and have perused the record. The main question that falls for consideration is whether the appellants could not be tried for the offences imputed to them, as they were not public servants. To attract the jurisdiction of the Special Judge under the Pakistan Criminal Law Amendment Act, XL of 1958, the persons placed for trial before the said Judge should be for one or more of the offences stated in paras (a) to (c) of the Schedule to the said Act, i.e., falling under Chapters IX, XI, XVII and XVIII of the Pakistan Penal Code which cover offences by, or relating to public servants, those against public justice, those against property and those relating to documents and those committed by public servants or by other persons acting jointly with or abetting or acting in conspiracy with public servants and those falling under the Prevention of Corruption Act, 1947, which under sections 3 and 5 thereof cover those committed by public servants.
19. Straightaway the first question that arises is whether the Pakistan Criminal Law Amendment Act, 1958, defines a public servant. Section 2(b) of the said Act states "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. In these circumstances, one need not labour any further to find out. What that expression means, rather than refer to this provision.
20. It may be here mentioned that the Punjab Livestock, Dairy and Poultry' Development Board Act (III of 1974) does not contain any section which defines the expression `public servant'. This does not, however, mean that it is the intention of the legislature to treat all employees of the said Board as persons who are not public servants. The basic object of defining the expression `public servant' in a statutory enactment is not to define which of such persons covered by the enactment shall be graded as public servants for purposes of honour or rank, but which amongst them shall be treated as such for the purposes of section 21 of the Pakistan Penal Code, i.e. To be entitled to the special protection of the law, and liable for serious punishment for abase of power, as provided in the Pakistan Penal Code or the enactment itself as available or applicable to that .Class, or for any specific purpose as may be spelt out from the enactment itself. Thus, in an enactment specific officers or persons holding specific offices in that organization may be particularised as persons falling within the definition of `public servant', or those who normally would not fall within that category may be treated as falling within that definition, or all persons working m that organization may be deemed as falling within that definition. The absence of a definition section does not mean that, the persons concerned who are covered by the enactment are not to be treated at all as public servants. What it means is that section 21 of the Pakistan Penal Code would come into play, which will determine which of such persons can be treated as falling in the category of "public servants".
21. It is, therefore, necessary for the prosecution in a case before the Special Judge, Anti-Corruption, to show that the main person arraigned before him for an offence is a public servant. In some cases the person's office or rank may be such as itself speaks of his status as an officer and a public servant, but where his duties, designation, rank or status is at some lower level and not very clear, or where his status as such public servant is denied, it is necessary for the prosecution to prove that he is a public servant within the meaning of any definition section that defines that expression in the statutory enactment covering his employment or duties, or, if this is not so, then within the meaning of one of the many clauses of section 21 of the Pakistan Penal Code, by bringing on record the scope, nature and extent of his duties and other material which would how under which clause his case falls.
22. The Punjab Livestock, Dairy and Poultry Development Board has neither been set up nor is controlled or administered by, or under the authority of, the Federal Government. The employees of the Board are therefore not covered by the latter part of the definition contained in section 2(b) of the Pakistan Criminal Law Amendment Act, 1958. It, therefore, only remains to be determined whether the appellants can be treated as public servants within the meaning of section 21 of the Pakistan Penal Code.
23. Section 21 of the Pakistan Penal Code contains eleven clauses, but the one which is. Relevant is clause Nine which may be reproduced here with advantage:-- "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 surveys, 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."
This clause may be broken up into two parts as follows:--
(a) Every officer whose duty it is, as such officer, to----
(i) take, receive, keep or expend any property on behalf of the Government, or
(ii) make any survey, assessm ent or contract on behalf of the Government, or
(iii) execute any revenue process, or
(iv) investigate or- report on any matter affecting the pecuniary interest of the Government, or
(v) make, authenticate or keep any document relating to the pecuniary interest of the Government, or
(vi) prevent the infraction of any law for the protection of the pecuniary interest of the Government;
(b) Every officer who is---
(i) in the service or pay of the Government, or
(ii) remunerated by fees or commission for the performance of any public duty.
The only provisions which appear relevant and requiring consideration for the purposes of this case are (i) to (vi) of category A; the others not being relevant.
24. The first question that arises is who is an "officer" within the meaning of clause Nine of section 21 of the Pakistan Penal Code. This word is not defined in the Pakistan Penal Code. To understand this word, it is necessary to understand the term "office". The term "office" expresses a duty or charge, a place of trust, a right to exercise a public or private employment, a position or station in which a person is employed to perform certain duties, or by virtue of which he becomes charged with the performance of certain duties, public or private. The term `officer' therefore, is a person who performs the duty or bears the charge, or executes the functions or trust, or exercises public or private employment, or one who fills a position or station to perform certain duties, public or private. The concept that an `officer' is one who occupies a position or station of some rank or merit or duties and functions of a superior or higher order, is associated with offices and organisations where classification or grading in the employment exists, whether it be in the public or private sector. An office, position or station has to be held under some one and it is not possible to conceive of it as being held under no one. In both the public and private sector, classification and grading exists, placing persons indifferent tiers, one above each other. Persons holding positions or stations which involve the exercise of authority, representative character or delegated function of the employer or exercise of administrative or supervisory functions over persons placed below them, are generally treated as of superior merit or rank. With such classification and grading existing in the public and private sector in respect of master and servant relationship, the question whether the word `officer' will have to conform with or re-cognize the superior rank or status of the position or the station, or the higher duties involved, calls for examination. Thus, whilst the word "officer" could connote different meanings, but in respect of section 21 of the Pakistan Penal Code, what meaning would have to be assigned to that expression, which occurs in clause Nine, calls for special attention.
25. With this foreword, one may examine the case-law referred to by the learned counsel for the parties on the subject.
26. In Reg, v. Ramajirao Jivbaji 12 Born. H.C.R. 1, West, J., held that the word "officer" meant some person employed to exercise to some extent and in certain cases a delegated function of Government. He either possessed some authority or representative character himself, or his duties were immediately auxiliary to some superior officer who so possessed the same. West, J., was considering the case of an Izaphatdar, i.e. a licensee of a village who had undertaken to keep an account of its forest revenue and who was obliged to pay a certain proportion 'of it to the Government, keeping the rest for himself. Since there was no delegation to him of any authority for coercion or interference, nor was he a person' appointed to assist any one who was so vested with such authority, it was held that the Izaphatdar was not a public servant.
27. In Nizam-ud-Din v. Queen Empress ILR 28 Cal. 344 the question was whether a peon attached to the office of the Superintendent of the Salt Department was a public servant within the meaning of clause Nine of section 21 of the Penal Code. The learned Judges of the Calcutta High Court, whilst considering the case of Reg v. Ramajirao Jivbaji, held that the rule stated in that case appeared to be too narrow for the purposes of their case. Since the peon was attached to the Superintendent of the Salt Department and it was his duty to carry out the orders of his superior officer, who was a public servant and in that capacity to assist the Superintendent in the performance of the public duties of his office, he was an officer of Government, though he did not exercise any delegated function of the Government. The learned Judges also held that the duties of the peon were immediately auxiliary to those of the Superintendent, who was armed with delegated authority. The peon was therefore held to be an officer in the service and pay of Government, within the meaning of clause Nine of section 21 of the Pakistan Penal Code.
28. In Ahad Shah v. The State AIR 1918 Lah. 152, the question was whether a Quarter Master's Clerk, who was not paid by Government but by the Quarter Master himself out of an allowance which he received for the purpose of his office and was not borne on the strength 'of the regiment, but was a mere supernumerary, was a public servant. The learned Judges observed that it was not enough that a person should be in the pay or service of Government to constitute him a public servant within the meaning of clause Nine of section 21 of the Penal. Code, but he must also be an "officer".
The learned Judges held that that expression was not, of course, to be restricted to its colloidal, meaning of a Commissioned or non-Commissioned Officer; it meant a functionary or holder of some "officium" or office. The office could be one of dignity or importance, it could equally be humble or low, but whatever its nature, it was essential that the person holding the office should have in some degrees delegated to him certain functions of Government. Referring to West, J's observations in Reg v. Ramajirao Jivbajirao, the learned Judges held that Hira Singh, though as a Quarter Master's clerk was not a public servant, but being otherwise as non --Commissioned Officer in the 2/9th Gurkha Rifles, was a public servant, though not then discharging that office.
29. In J.T. Montrio v. State of Ajmer PLD 1957 SC (Ind.) 170, the question was whether a metal examiner known as Chaser in the Railway Carriage Workshop could be treated as an officer. After considering a number of cases, the Supreme Court of India held that the true test to determine whether a person was an officer in the Government was (1) whether he was in the service or pay of the Government and (2) whether he was entrusted with the performance of a public duty. If both these requirements were satisfied, it mattered not the least what was the nature of his office, whether the duties he was performing were of an exalted character or very humble indeed. At a later stage it held that if the said two conditions were present and the person also had delegated to him the functions of the Government, or was in any event performing duties immediately auxiliary to those of some one who was an officer of the Government, such a person could be treated as an officer. Since the Chaser was working under the Works Manager, who was admittedly an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager, who besides being a public servant was armed with some authority or representative character qua the Government, the Chaser was treated as an officer.
The above rule, namely that where a person is in the service or pay of Government, it is sufficient to show that he is entrusted with the performance of a public duty, in order to show that he is a public servant, has been reiterated in the State of Ajmer v. Shivji Lal AIR 1959 SC 817, M.B. Kanwar v. The State AIR 1963 Punjab 201 and Ranjeet Singh v. The State AIR 1965 All. 478.
30. In A.K. Shamsul Haq Chaudhry v. State PLD 1960 Dacca 1049, the Secretary of the District Soldiers, Sailers and Airmen's Board was held not to be public servant within the meaning of section 21 of the Penal Code, merely because the expenses of the Board were being met from the contributions made by the Central and Provincial Governments, for it could not be said that the employees of the Board spent Government money or that the employees were in the service or pay of the Government. It was held that the money which was paid by the Government to the Board was by way of contribution, which, after payment, became the money of the Board. It, therefore, held that simply because Government exercised some control over the Board, it did not follow that the employees of the Board were employees in the service or the pay of the Government.
31. In Karim Bakhsh v. State PLD 1962 Lah. 144 a Land Supervisor with the Pakistan Military Lands and Cantonment Service, also described as a Gardener, was held not to be a public servant, as he neither held any office, nor had any delegated authority from the Government or his superiors in the performance of any public duty entrusted to him. Sajjad Ahmad, J. (as he then was) held that to fall under clause Nine of section 21 of the Penal Code, it was not enough that a person was shown to be an employee, but he must also be an officer, which meant that he did hold some office or "officium", humble or exalted, high or low, in the sense that he exercised to some extent a delegated function of the Government and he was in this behalf either himself armed with some authority or representative character, or his duties were immediately auxiliary to those of some one who was so armed.
32. In Abdul Khalek Patwary v. State 1968 PCr. LJ 869 the question was whether the appellant had abetted an offence punishable under section 165 of the Pakistan .Penal Code by offering bribe to a public servant. The question was whether F. Rahman P.W.1, an Accountant of the Bank, was a public servant and therefore the trial by the Special Judge was within jurisdiction. After analysing the provisions of the Agricultural Development Bank Ordinance, 1969, the learned Judge held that as not less than 51% of the shares issued at any time by the Flank had to be subscribed for by the Central Government, that the Accountant dealt with Government money, that the major portion of the capital was supplied by the Government and having regard to the fact that it was his duty to report on matters affecting the pecuniary interest of the Government, because it was his duty to check all applications for payment and report on them, the Accountant was. Therefore, a public servant within the definition of clause Nine of section 21 of the Pakistan Penal Code.
33.In Ashfaq Ahmad v. The State PLD 1968 Lah.1124, the question was whether the appellant who was a Wasil Baqi Navis was a public servant.The learned Single Judge held that although the word ---officer--- as used in common parlance connoted the holder or incumbent of an office of authority yet the said word in clause Nine of section 21 of the Penal Code had been interpreted by judicial authorities to include all incumbents of offices high or low irrespective of their status.The learned Judge held that the same view was expressed in Karim Bakhsh v. The State PLD 1962 Lah.144. Since the appellant was an officer and maintained the record of land revenue assessed on the land-owners and recoverable from the lambardars and was also charged with the duty of keeping documents relating to the pecuniary interest of the Government, the appellant was held to be a public servant within the meaning of clause Nine of section 21 of the Penal Code.
34. In Zabtey Khan v. State PLD 1972 Lah. 196, the question was whether the appellant who was a despatcher in the West Pakistan Social Welfare Council was a public servant and whether his trial by an ordinary Magistrate was not illegal. After examining the documents, which showed that the Council was a branch of the Social Welfare Wing of the Secretariat and that the Council was one of the semi-autonomous bodies which was under the administrative control of the Social Welfare Department, the appellant was held to be an employee of the Provincial Government. However, the question whether the appellant was an officer was not closely examined.
35. In Ikram Ali v. State PLD 1980 Lah. 597 supervisors and storekeepers of the Punjab Agricultural Development and Supplies Corporation, a statutory body created under Punjab Act XXI of 1972, who had been convicted by the Special Judge Anti-Corruption for misappropriation and corruption, petitioned for the quashment of their convictions and sentences. The case of the petitioners was that they were not public servants within the meaning of clause Nine of section 21 of the Pakistan Penal Code. The learned Single Judge, whilst adverting to the tests laid down by West, J., in Reg v.
Ramajirao Jivbajirao (12 Bom. H.C.R. 1), by H. Rattigan, C.J., in Ahad Shah v. Emperor (AIR 1918 Lah.
152) and by Bhagvati, J., in GA. Monterio v. State of Ajmer PLD 1957 SC Ind. 170 to determine who was an "officer", appears to have accepted the test laid down by the Supreme Court of India, namely, that the person must be entrusted with the performance of a public duty. It may be here stated that the case before Bhagvati, J., related to a metal examiner also called Chaser who was working with the Railway Carriage Workshops and was in the service and pay of Government. The question before Bhagvati, J., was whether he was an officer falling in category B (i) as stated in para. 23 above, so as to fulfil the definition of public servant. The learned Single Judge of the Lahore High Court, after examining the scope of the Punjab Agricultural Development and Supplies Corporation and the nature of the duties of the supervisors and storekeepers found that they were neither in the service of the Government for received any pay from Government, that they were employees of a statutory corporation which was a separate legal entity apart and distinct from Government, that they received their salaries from a fund created by the statute which established the corporation, that they performed functions assigned to them by the Corporation as part of its ordinary commercial activities and that there was no nexus between them and the Government and they could hardly be said to be performing any public duties. The convictions and sentences of the petitioners were quashed. The question whether even assuming the petitioners were not in the service or pay of Government, the petitioners were otherwise "officers" of the Corporation and, if so, whether they came in any of the categories (i) to (vi) of A or f ii) of B, as stated in para 23 above, was not considered.'
36. In Moosa Karim v. State PLD 1985 Kar. 720 the question was whether the appellant, who' was a clerk in Sindh Small Industries Department and who had been convicted by the Special Judge Anti- Corruption was a public servant. Following the view taken in Ikram Ali v. State, the learned Single Judge held that the appellant, who was a clerk, was not covered by the definition of "public servant" and his conviction and sentence were quashed.
37. In Allied Bank of Pakistan v. Shaukat Textile Mills Ltd. (1986 PCr. LJ 1530), the question was whether S. Rehman Raza, Manager-cum Assistant Vice---President of the Allied Bank of Pakistan Ltd., who had filed a complaint before the Special Court, Offences in Banks, was a public servant, so that his statement under section 200 of the Code of Criminal Procedure need not be recorded.
Since the complainant admittedly was a senior officer of the Bank, the question that he was not an "officer" did not arise. Since his duties included the taking, receiving keeping and expending money and securities on behalf of the Government and to investigate and report on matters affecting the pecuniary interests of the Government and to make, authenticate and keep documents relating to the pecuniary interests of the Government and he was also in the service of the Government, as the Allied Bank was a nationalised Bank the complainant was held to be a "public servant" falling under many categories of the definition a." given in clause Nine of section 21 of the Pakistan Penal Code.
38. In State v. Abdul Raheem Khan PLD 1988 Lah. 802, the question was whether the two respondents, who were ex-Managers of the Central Co-operative Bank, were public servants. Under section 65-B of the Co-operative Societies Act, as amended by West Pakistan Ordinance XVII of 1966, "every officer of a society, including a Co-operative Bank, was to be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code" and under section 3(d) of the said Act, the definition of the word "officer" included a chairman, secretary, treasurer, member of committee or other person empowered under the rules or under the byelaws of a society to give directions in regard to the business of such officer. Referring to various dictionary meanings of the word "officer", the learned Single Judge held that the respondents were officers.
39. Section 21 of the Pakistan Penal Code, 1860 does not attempt to lay down a-single definition of the term `public servant'. It describes the term by enumeration, which is illustrative, but not exhaustive. Generally speaking a public servant signifies a person in the pay or service of the Government, performing a public duty or function. The fact that such person is armed with authority or executive power of Government, direct or delegated, or is concerned with public dealings, is another incident of that office, which is generally associated with it. But when one examines the various clauses of section 21 of the Pakistan Penal' Code, a more horrendous enumerations could not have been attempted. One clause deals with officers of the Government some clauses deal with designated officers or offices some clauses deal with officers whose duty it is to perform certain functions and some clauses deal with persons who hold offices by virtue of which they are empowered or can perform certain functions or duties. The term `officer' therefore, carries different meanings in the various clauses wherein it is located. But since the Ninth clause of section 21 of the Code is the one which is relevant to our case and on which arguments have been addressed, it is necessary to examine the same in depth. The break-down of this clause has been given in para. 23 above which shows the two basic groups and the sub-groups under which the expression `public servant' can be categorised. One of the categories specifically relates to officers in the service or pay of the Government. As pointed out by Dr. Sir Hari Singh Gour in the Penal Law of India, 7th Edition, Vol. I at page 95, "The ninth clause is really the otta porida of the section and it includes within its comprehensive group a large mixed class of non-descript officers who could not be specially provided for". A person whose position or station per se is of such rank or merit as entitles him to be treated as an officer, or who is admittedly such by the rules or regulations applicable to him, need not trouble himself any further, for he would fall within the term `officer'.
Other than such apparent cases, by a long string of precedents, some of which have been referred above, the guidelines that determine the term `officer', which have now somewhat crystallised and shaped its meaning, are that he is a person who is a functionary or holder of some `officium' or office, whether of dignity or importance, or humble or low, and that he has authority, representative character or delegated function of the employer or performs public duties (which would also include public dealings), or exercises administrative or supervisory functions over persons placed below him, or is one whose duties are immediately auxiliary to some one who is so armed with such a power. This meaning being in consonance with clause Nine and otherwise best fitting the large mixed class of non-descript officers that fall in this clause, would appear to be the most correct and appropriate that one can adopt and we would so approve it. In doing so we are not unmindful of the fact that it is not possible to lay down with any precision any clear definition or meaning which can be used invariably to determine who is an officer, as that term is understood in clause Nine of section 21 of the Pakistan Penal Code.
40. In respect of four appeals before us the appellants are admittedly holding positions of rank and merit in the Board. Anwar Aziz Chaudhry appellant, was the Managing Director, Saeed Yousuf and Nasrullah Khan appellants, were the Senior Project Managers and Ahmad Ghazali was the Project Manager of the Punjab Livestock, Dairy and Poultry Development Board. Under Annexure-III of the Board's Service Rules, (1974), the appellants fall in the category of senior executives/officers carrying pay scales above BPS-16. By virtue of the Service Rules applicable to them, they are officers. They therefore fall in the category of officers, as that term is understood in clause Nine of section 21 of the Pakistan Penal Code.
41. The only further question that remains is whether such of the appellants, who were officers of - the Board, took, received, kept or expended any property on behalf of the Government, made any survey, assessm ent or contract on behalf of the Government, or investigated or reported on any matter affecting the pecuniary interests of the Government so as to fall under category (i), (ii) and
(iv) of A as stated in para 23 above. Under section 3(2) of the Punjab Livestock, Dairy and Poultry Development Board Act, 1974, the Board is a body corporate empowered to acquire and hold property having perpetual succession and a common seal. Under section 4(1), the administration and management of the Board and its affairs vest in a Board of Directors constituted under section 5, which has authority to exercise all powers and do all such acts and things as may be exercised or done by the Board in accordance with the provisions of the Act. Under section 4(2), the Board shall in discharging its functions act on national and commercial considerations, subject to such directions as the Government may give to it from time to time. Under section 4(3), the Government can suspend the execution of any resolution or order of the Board as in the opinion of the Government contravenes the provisions of the Act or rules or regulations made there under, or the directions mentioned in subsection (2), or prohibit the doing of any act which is being done in pursuance of the said resolution or order, or if the act has been accomplished, order its rectification in such manner as may be directed. Under section 5, the Board consists of a Chairman and ten directors, of whom five are superior office holders of the Punjab Government at the Secretary level, four are non-official members and one is a Managing Director. The Chairman, the four non-official members and the Managing Directors are appointed by the Government. Under section 6 the Managing Director is the Chief Executive of the Board and is a whole time officer, performing such duties as may be specified or assigned to him. Under section 13(1), the Board can, in accordance with the provisions of the Act, but subject to such general or special order as the Government may give from time to time, take measures to establish, manage or run any of the projects mentioned in the schedule. Under section 13(2), the Board can establish companies in respect of any of the projects mentioned in the schedule and manage on behalf of the Government the shares held by the Government in the issued capital of the said companies. Under clause (d) of subsection (3) of section 13, the Board inter alia is held responsible for implementing and executing schemes approved by the Government and under clause (f) for managing on behalf of the Government, on such terms and conditions as the Government may specify, such farms, projects and activities as the Government may from time to time decide to hand over to the Board. Under section 13(4), the Board can, subject to general or special directions as the Government may give to it from time to time, assist and encourage the private sector in establishing and running any of the projects mentioned in the schedule. Under section 15(2), the Board's finances consist of investments and grants made by and loans obtained from the Government. Under . Section 22(2), the Government has power by notification to dissolve the Board.
Under section 22(3) the properties and assets left over after all the liabilities of the Board have been discharged, vest in the Provincial Government and all liabilities left un-discharged; after the properties and assets of the Board have been disposed, become the liabilities of the Provincial Government. It is clear that the Board not only has to discharge its functions on national considerations, but is responsible for implementing and executing schemes approved by the Government and managing on behalf of the Government, on such terms and conditions it may specify, such farms, projects and activities as the Government may from time to time decide to hand over to the; Board. As already submitted by the learned Additional Advocate-General in para above certain projects which were earlier being run by the Government were given to the Board after its establishment for management and certain projects were resumed by the Government from the Board during its period of operation and that almost 2/3rd of the funds of the Board were interest bearing returnable loans of the Government. In addition after the Board was wound up in 1986, the Government took over all the on-going projects of the Board and also its liabilities after winding up its business. In this view of the matter it cannot be said that prima facie there is no evidence that the senior officers of the Board did not take, receive, keep or expend property on behalf of the Government or make surveys and assessments on behalf of the Government or investigate or report on matters affecting the pecuniary interests of the Government. The case there is covered by category (i), (ii) and (iv) of as stated in para. 23 above. The four appellants who are the senior officers of the Board are therefore ex facie public servants and the similar view taken by the learned Single Judge is therefore legal and correct and admits of no exception. However nothing herein contained shall prevent the Special Judge from giving a proper finding in the matter after evidence of both the sides is recorded in this respect.
42. We now turn our attention to the arguments advanced on behalf of the appellants on the facts of the case seeking quashment on the ground that no prima facie case stands made out.
43. The case of the prosecution against Anwar Aziz Chaudhry appellant is that in his capacity as, the Managing Director of the Punjab Livestock Dairy and Poultry Development Board, he, without calling for tenders or placing advertisements entered into agreements dated 28-4-1975 and 1-4- 1975 with his friend Muhammad' Tufail of Zargam and Co., Faisalabad, and Khan Muhammad Khan of Mahnaz & Co., Sargodha, respectively for the supply of live cattle heads to the Meat Complex, Sehala, against which contract he allowed advances of Rs.2,00,000 to each of the said two persons.
It is the prosecution case that though the original agreements were at lower rates, they were later revised and enhanced and that no security was taken for the advances paid to the contractors. It is also the case of the prosecution that Zargam & Co., Faisalabad, and Mahnaz & Co., Sargodha were fictitious firms which did not exist. The case of the appellant is reproduced in para 3 above, which does not answer the prosecution allegations. In these circumstances it cannot be said that there is no prima facie case against the appellant. The prayer for quashment therefore has no merit and must be rejected.
44. The case of the prosecution against MA. Sohail is that the said appellant, as sole proprietor of Riaz Associates, Lahore, undertook the contract for the renovation of sheds Nos. 3 and 4 of Millat Poultry Forms, Ferozpur Road, Lahore, and that he was paid Rs.61;088.20 in excess, as a result of the machinations of Muhammad Khalid, Overseer, who showed excess work and quantities in Measurement Book No.478. The appellant is arraigned with six others in the challan. The reply of the appellant to these allegations is contained in para. 4 above. From this reply it is apparent that the appellant had filed a suit against the Board on 9-7-1977 claiming balance payment, in which suit an Arbitrator was appointed, who gave an award in favour of the appellant, which was made a rule of the Court. In the said arbitration proceedings the Board did not take up the position that the Measurement Books being maintained by Muhammad Khalid, Overseer, showed excess work and quantities. In these circumstances, the proceedings against MA. Sohail appellant in case No.234 of 1977 are quashed.. The case, however, shall proceed against the other accused.
45. The case of the prosecution against Muhammad Tariq appellant is that the officers of the Board without advertising for tenders gave the contract for the renovation of the Hatchery and Breeding Farm buildings at Chhattar, Rawalpindi to Muhammad Tariq, Proprietor of Dawn Construction Co., Lahore for Rs.3,71,000 but that the said contractor later was paid Rs. 4,25,916. It is the prosecution case that though the budget provision was only for Rs.1,80,000, the estimates in the instant case were neither technically sanctioned nor administratively approved and that excess payment of Rs.1,16,877.11 was made to the appellant. The appellant is arraigned with five other co-accused, four of whom are officers and employees of the Board. The reply of the appellant to these allegations is contained in para. 5 above. From this reply it is apparent that the appellant *had filed a suit against the Board on 9-7-1979 claiming certain payments, in which suit an arbitrator was appointed, who gave an award in favour of the appellant, which was made a rule of the Court. In the said arbitration proceedings the 4pard did not counter-claim excess payments made. In these circumstances the proceedings against Muhammad Tariq appellant in Case No.140 of 1977 are quashed. The case, however, shall proceed against the other accused.
46: The case of the prosecution against, Ahmad Ghazali appellant is that during his ten years a separate tube-well room was constructed which involved expenditure of Rs. 6,570, though the estimated cost of the room was Rs.6,000. In this manner the appellant was responsible for payment of an excess amount of Rs. 570. It is further stated that against the expenditure of Rs.6,570 shown, receipts available only proved an expenditure of Rs.5,142. Thus the appellant was also liable for an unaccounted expenditure of Rs. 858, In this connection the recoverable loss shown against Ahmad Ghazali appellant and Ahsanul Wadood, Project Managers, is stated to be Rs.1,438. The reply of Ahmad Ghazali to the prosecution case is contained in para. 6 above, which does not answer the prosecution allegations. In these circumstances, it cannot be said that there is no prima facie case against Ahmad Ghazali appellant. The prayer for quashment therefore has no merit and must be rejected.
47. The case of the prosecution against Mian Abdur Rehman appellant, who is arraigned as accused with some others in the same case, is that Mian Abdur Rehman, who was the Managing Director of Boremaster Ltd., was given contract for the installation of a tubewell of 2.00 cusecs in the Cholistan area in Bahawalpur. Later, some ancillary work was also given to him. According to the agreement dated 2&1-1975, the said contractor was to receive only 25% advance, whereas the Board's officers sanctioned advance of Rs. 1,00,000 on 28-1-1975 and Rs. 2,50,000 on 1-2-1975. It is submitted that after the tubewell was completed, it was found that it was not of 2.00 cusecs capacity, but of 0.75 cusec capacity and that though the estimated cost of the tube-well was only Rs.1,60,000 the contract had been offered to Mian Abdur Rehman for an excess sum of Rs.4,00,000.
In this challan Ehsanul, Wadood, Store Pilot Incharge, and Abdul Qadir, Project Engineer, are also co-accused. The reply of Mian Abdur Rehman appellant to the prosecution case is contained in para 7 above, which does not answer the prosecution allegations. In these circumstances, it cannot be said that there is no prima facie case against the appellants. The prayer for quashment therefore has no merit and must be rejected.
48. The prosecution case against Masood Ahmad appellant is that he was the owner of Bolan Radios and was a relative of Ch. Nesrullah Khan, Senior Project Manager of the Board, and that the said Senior Project Manager by way of favouritism gave him a contract for the construction of a deep freezer body over the chassis of a truck at a cost of Rs.1,95,000. On 28-10-1976 the appellant was paid advance of Rs.97,500 by way of favouritism. It is the case of the prosecution that the deep freezer body fixed over the chassis of the truck was a second-hand one acquired from Badar Ber Air Base, Peshawar, and did not give satisfactory performance. Ch. Nasrullah Khan, Senior Project Manager, Syed Sajjad Mehdi, Project Manager, Ghulam Mohayuddin, Production Manager, Hassan Raza, Transport Officer, and two others are also arraigned as co-accused in this case. The case of the appellant is reproduced in para. 8 above. The same does not answer the prosecution allegations. It cannot, therefore, be said that there is no prima, facie case against the appellant.
The prayer for quashment therefore has no merit and must be rejected.
49. There are eight cases of the prosecution against Saeed Yousuf appellant concerning a string of allegations regarding defalcation and misappropriation of funds through preparation of false documents. The case of the appellant is reproduced in para. 9 above. His reply does not answer the prosecution allegations, relative to the eight cases instituted against him and others. It cannot therefore be said that there is no prima facie case against the appellant. The prayer for quashment therefore has no merit and must be rejected.
50. There are ten challans against Ch. Nasrullah Khan, Senior Project Manager, appellant. All relate to defalcation and misappropriation of funds through preparation of false documentation. The case of Ch. Nasrullah Khan appellant is reproduced in para. 10 above. His reply does not answer the prosecution allegations relative to the ten cases instituted against him and others. It cannot therefore be said that there is no prima facie case against the appellant qua the ten challans filed against him. The prayer for quashment therefore has no merit and must be rejected.
51. For the foregoing reasons, criminal appeal Cr. A. No.130 of 1980 preferred by MA. Sohail appellant is allowed and the criminal proceedings pending against him in Case No.234 of 1977 are hereby quashed. The case, however, against the other co-accused shall proceed. Criminal Appeal No.131 of 1980 preferred by Muhammad Tariq appellant is also allowed and the criminal proceedings pending against him in Case No.140 of 1977 are hereby quashed. The case, however, against the other co-accused shall proceed. The remaining seven appeals, namely, Criminal Appeal No.129 of 1980 filed by Anwar Aziz Chaudhry, appellant, Criminal Appeal No.132 of 1980 filed by Ahmad Ghazali, appellant, Criminal Appeal No.133 of 1980 filed by Mian Abdur Rehman, appellant, Criminal Appeal No.10 of 1981 filed by Masood Ahmad, appellant, Criminal Appeal No.146 of 1981 filed by Saeed Yousuf, appellant and Criminal Appeal No.147 of 1981 filed by Ch. Nasrullah Khan, appellant, are dismissed.