' This appeal under section 410, Cr.P.C. By Muhammad Bashir son of Ghulam Nabi, is directed against the judgment, dated 16-7-1991 passed by the Special Judge, Anti-Corruption, Sargodha Camp at Faisalabad, whereby the appellant who was tried for an offence under section -5(2) of Prevention of Corruption Act, 1947 is convicted and sentenced to imprisonment till rising of the Court and a fine of Rs,1,000' and in default to undergo 3 months' S.I.
2. Briefly facts of the case are that Muhammad Bashir P.W.13 then C.O./A.C.E. Toba Tek Singh received an information that illegal electric connections have been supplied to the residents of Jinnah Colony from the meter of Water Works and Municipal Committee Toba Tek Singh and in this officials of Municipal Committee are involved and they charge an illegal gratification from the consumers of the electricity. On the basis of this information F.I.R. Exh.P.E. Was recorded on 30-7- 1985; in consequence to which raiding party was constituted headed under the supervision of Muhammad Ashraf Nauhria Magistrate (P.W.15). The raiding party visited the houses and found electric connection in about 21 houses, 155 meter long wire was removed and the statement of residents were recorded who stated that they used to pay Rs,30 per month to the appellant who was driver at the disposal pump. After necessary investigation sanction orders Exh.P.C., Exh.P.H. And Exh.PJ. Were obtained and the challan was submitted in the trial Court.
3. The prosecution examined as many as 16 witnesses in support of the case and the learned trial Judge after recording the evidence of prosecution witnesses, was of the view that there was no legal evidence which could be confronted to the co-accused Shaukat Hussain and Abdul Sattar; hence he acquitted both the co-accused then and there.
4. In his statement under section 342, Cr.P.C.; the appellant denied the allegations and contended that WAPDA officials had supplied the illegal connection and in the days of raid he was posted at tube well No,1 and he has been involved in the case due to party politics. The appellant examined D.Ws. Ghulam Mustafa, Muhammad Afzal and Abdul Hamid in his defence.
5. I have heard the learned counsel for the appellant as well as the learned counsel for the State at length and have perused the record. The learned counsel raised the preliminary question and contended that the appellant is low paid employee of the Committee and was not (an officer) within the meaning of Clause 9 of section 21 of P.P.C. And. Is excluded from the definition of public servant. Section 2 of the Prevention of Corruption Act 1947 provides:-- "for the purposes of this act, public servant means a public servant as defined in section 21 of P.P.C.
And includes an employee of any corporation or other body or organization, set up controlled or administered by, or under the authority."
' Section 21, P.P.C. Provides so far as is relevant for the purposes of the appeal in hand as:-- . "The word 'public servant' denoted a person falling under any of the descriptions hereinafter following, namely:-- ' Ninth... And every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty"
There is no doubt that the appellant was in the service or pay of the Government and was performing the duty as a driver at the disposal pump and was thus performing as public duty. The contention that the appellant was not an officer within the meaning that term as used in section 21(9) of P.P.C. On the plea that officer means one to whom some portion of its regulating and coercive powers have been delegated by the supreme authority and who is appointed to represent the State in its relations to individual subject.
6. It was held in case of GA. Monterio v. The State of Ajmer PLD 1957 SC India 170. "The true test, therefore, in order to determine whether a person is an officer of Government or is not is as under:- -
(1) Whether he is in the service or pay of the Government; and
(2) Whether he is entrusted with the performance of any public duty.
7. If both these requirements are satisfied not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed.
8. The learned Judges of the Indian Supreme Court while analysing the term of public servant; took into consideration the observation made in case of Ahmad Shah v. Emperor AIR 1918 Lah. 152(2) wherein it was held:-- 'But it is not enough that a person should be in the pay or service of Government to constitute him a public servant within the meaning of section 21 (ninthly), I.P.C. He must also be an officer. That expression is not, of course, to be restricted to its colloquial meaning of a commissioned or non- commissioned Officer, it means a functionary or holder of some officium or office. The office may be one of dignity or importance; it may equally be humble. But whatever its nature it is essential that the person holding the office should have in some degree delegated to him certain functions of Government.'
9. Applying this test the learned Judges of the Supreme Court of India held that even a class III servant employed in the railway carriage workshops was certainly an officer of the Government as he was assumed with some authority or representative character qua the Government.
10. In view of the judgment above, the contention of the appellant does not avail him as he was an officer within the meaning of section 21(9), P.P.C. And therefore, a public servant for the purpose of section 5(2), 1947; hence was rightly convicted and sentenced by the trial Judge under the said section.
11. The other contention of the learned counsel that appellant being a low paid; electric connection cannot be supplied without the connivance of his higher authorities is of no help to him as the appellant was admittedly driver at the disposal pump and was quite aware of the fact of the electric connection laving been taken from the meter of the disposal pump; being well aware to the fact he did not report in writing or even verbally to any higher officer regarding the illegal supply of electricity to 21 houses. I have put the defence version in juxtaposition with the prosecution case; it is proved on record that the electric connections was provided to 21 residential houses from the meter of disposal pump and it is also proved fact that the appellant remained posted as driver at the disposal pump during the period when the electric connections were supplied. There is nothing on record to show that the P.Ws. Had any motive to falsely implicate the appellant. The evidence of the witnesses is confidence inspiring and is logical. There is no motive against the appellant by 'the witnesses; the trial Court rightly believed the testimony of the witnesses and convicted the petitioner. The trial Court has already taken the unusual leniency by convicting the accused till the rising of the Court. Hence there is no merit in this appeal which is dismissed accordingly.