This appeal arises from the judgment dated 28-5-74 passed by the Special Judge Anti-Corruption, Lahore, whereby he convicted the appellant under section 409, P. P. C. And under section 5 (2) of the Prevention of Corruption Act 1947, sentenced him to simple imprisonment till the rising of the Court and to pay a fine of Rs. 300 ordering that in default of payment of fine he would undergo R. I.
For three months.
2. The facts are that the appellant was sub-head Loco Shed Pakistan Western Railway, Lahore but was working as Secretary in the Saint John Ambulance Brigade in addition to his own duties and used to get for this additional duty Rs. 10 p .m. As honorarium from the Railway. He is alleged to have identifid falsely, James Gill, Fida Hussain, Mohammad Sharif, Ashiq Hussain, Aziz Din, Qamar Din and Qurban A.I at the time of payment of Rs. 6 per head at the rate of Rs. 3 per day as parade allowance. The persons who received the amount were afterwards found to be bogus. Qurban A.I P.
W. 1, James Guill P. W. 2, Abdul Hamid Fitter P. W. 3, Azad Hussain P. W. 4 and Ashiq Hussain P. W. 5 supported the prosecution case by stating that they were entitled to get Rs. 6 per head as parade allowance but nothing was paid to them. They disowned their signatures on Exh. P. B.
3. The evidence is not that the amount was received by the appellant. Only this much stands proved from the evidence that he identified bogus 14 persons at the time the amount was paid to the persons appearing before the Disbursing Officer. The possibility, therefore, cannot be excluded that the money was received by the persons who forged signatures. The. Disbur--sing Officer who paid the amount was not examined and only he could prove who had received the amount. If the evidence had been that the amount was received by the appellant it could be said that he misappropriated the money. At best, he could be guilty under section 420, P. P. C. But the said section was not applied against him.
3-A. The other thing is that it does not stand proved that the amount misappropriated was Government property. Admittedly, the funds belong to the Saint John Ambulance Brigade and not the Railway.
4. Now it is to be seen whether the act complained of falls under section 5 (2) of the Prevention of Corruption Act. For ready reference section 5 is reproduced as under:
(1) A public servant is said to commit the offence of criminal mis--conduct:
(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or
(b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consider--ation or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, likely concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or allows any other person so to do, or
(d) if be, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. Or
(e) if he, or any of his dependents, is in possession, for which the public servant cannot reasonably account, of pecuniary resources or of property disproportionate to his known sources of income."
The careful reading of the relevant portion of section 5 as reproduced above shows that the act complained of does not fall in any of the clauses to subsection (1) of the said section.
Clause (a) deals with the acceptance of illegal gratification as a motive or reward such as is mentioned in section 161 of P. P. C.
(b) This clause includes in the commission of criminal misconduct the acceptance of any valuable thing without consideration or with inadequate consideration knowkingly from any person who has been or to be likely concerned in any proceedings or business transacted or about to be transacted by him or having any connection with the official functions himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested or related to the persons so concerned.
(c) This clause deals with the misappropriation dishonestly or fraudulently of the popery entrusted to the public servant or in his control; This clause is not applicable for this reason also that money alleged to have been received by unauthorised persons was neither in the custody or control of the appellant nor it had been entrusted to him and nor he himself misappropriated the same. The words "allows any other persons so to do", need discussion in order to avoid any woring interpretation. These words mean that public servant who has control over property cannot allow any other person to misappro--priate it. These words do not mean that a public servant who allows any other further person entrusted with property, to misappropriate it commits, misconduct.
The word "allows" clearly shows that the public servant concerned should have himself control over the property and bad allowed another person to misappropriate that property;
(d) This clause prevents a public servant from obtaining any valuable thing or pecuniary advantage by corrupt or illegal means or by other--wise abusing his position as a public servant and this does not apply.
5. Clause (e) applies in cases where any public servant or his depen--dants are found in possession of pecuniary resources or property dispropor--tionate to his own source of income and he cannot give any reasonable account of the same. So from the survey of all the clauses of subsection (1) of section 5 it is clear that no clause applies to the present case. The result is that the appellant was wrongly convicted under section 5(2) of the Preven--petition of Corruption Act.
6. Learned counsel has argued that the Railway employee is not a public servant and in this respect he relied upon PLD 1964 Dacca 240 but I cannot agree with him. This authority is based upon section 137 of the Railways Act as it stood before it was amended in 1956. The conviction from which the said authority arose was based upon an act committed by the appellant in that authority in 1949 when section 137 of the Railways Act stood to its unamended form. While amending section 137 in 1956 subsec--tions (1), (2) and (4) were deleted. So the bar under which Railway employees could not come within the definition of public servant dealt with in section 21 of the Pakistan Penal Code was removed and now Railway employees are public servants. I, therefore, overrule this objection.
7. As a result of the observations made above, I accept the appeal and setting aside the conviction and the sentence acquit the appellant. The appellant with his counsel.