'The applicant has moved the instant Criminal Miscellaneous Application under section 561-A of the Cr.P.C. Impugning order passed by Third Additional Sessions Judge, Karachi East (Mrs. Akhtar A.
Chaudhry) (hereafter referred to as "the A.D.J.") dated 15-1-1995 in Sessions Case No. 795 of 1994.
2. The essential facts to crystallize the controversy in issue are that one Ghulam Sabir Khan while in custody disclosed that he alongwith his companion Sardar alias Takar had been involved in sale, purchase, and dealing in stolen motor vehicles. In this respect it is alleged that they were assisted by Saeed and Ilyas both employees of Excise and Taxation Department to forge necessary documentation. In view of this disclosure, an F.I.R. Was lodged against all concerned including Ilyas and Saeed, while charging all the accused under sections 420, 468, 471, 411, 412 and 34 of the P.P.C.
Subsequently, cognizance of the matter was taken by the A.D.J.
3. The accused; Saeed who is an employee in the Excise and Taxation Department as stated above moved an application for acquittal under section 265-K of the Cr.P.C. Before the A.D.J. On ground-- that the said Court had no jurisdiction to proceed with the case and it was only the Special Judge (Anti-Corruption), who had the jurisdiction to take cognizance of the matter inasmuch as that the applicant was a public servant within the meaning of the Pakistan Criminal Law Amendment Act, 1958 (hereafter referred to as "the 1958 Act"), being a clerk in the Excise and Taxation Department.
The contention of the applicant was that he was charged with offence specified in the schedule to the 1958 Act and as such ' the said offences were exclusively triable by the Special Judge. The application moved by the applicant under section 265-K was dismissed on grounds that the applicant had allegedly forged the documents while acting in his private capacity and not in his capacity as a public servant, hence the instant application for annulment of proceedings before the A.D.J. Under section 561-A of the Cr.P.C.
4. I have herd the arguments advanced by both, sides. Mr. Sardar Muhammad Ishaq, the learned counsel for the applicant, has vehemently contended that the learned A.D.J. Had materially erred in dismissing the application under section 265-K as the applicant is admittedly a public servant and the offences with which he has been charged with are spelt out in the schedule to the 1958 Act. As such the applicant is triable by the Special Judge (Anti-Corruption), while the proceedings before and cognizance by the A.D.J. Are completely bereft of jurisdiction void ab initio and of no legal effect. The counsel for the applicant has submitted a list of cases at paragraph 3 of the memo of his application and has relied upon the same at the time of arguments as well, which are as under: (i)Mst. Neelam Nawaz v. The State reported in 1994 PCr.LJ 1922;
(ii) Mubarak H. Siddiqui v. Sajjad Hasan Khan reported in PLD 1992 Kar 167;
(iii) Khanzada Hidayat Ali Khan v. Mazhar Ali Khan reported in 1985 PCr. LJ 2871;
(iv) Abdul Sattar v. The State reported in 1987 PCr.LJ 344;
(v) Hamdard Cooperative Society v. Government of Sindh reported in 1990 MLD 1060;
(vi) The State v. Abdul Rahim Khan reported in PLD 1988 Lah. 802;
(vii) Allah Warayo v. The State reported in 1972 PCr.LJ 585;
(viii) Ghulamullah v The State reported in 1993 PCr. LJ 1307 = 1993 PCr.IJ 1309.
5. In the first case referred by the learned counsel for the applicant, Mst. Neelam Nawaz v. The State a Division Bench of the Lahore High Court has dilated upon the term ' coram non judice' while holding that any indictment or sentence passed by the Court which has no authority to try the accused of an offence is clearly a violation of law and would be coram non judice and a nullity. In the second case cited above, i.e. Mubarak Hussain Siddiqui v. Sajjad Hassan Khan, a learned Single Judge of this Court held that a Chairman of a Cooperative Society was .a "public servant", and when charged with offences which were spelt out in the schedule to the 1958 Act, he was exclusively triable by the Special Judge (Anti-Corruption). Accordingly, proceedings before the Magistrate warranted quashment. In the third case Khanzada Hadayat Ali, Khan v. Mazhar Ali Khan, complaints were lodged against members and Secretary of a Cooperative Society in respect of cheating, forgery and embezzlement committed by them in the course of their duties, in the Court of Senior Special Judge (Anti-Corruption). Although the case touched upon the question as to whether the Senior Special Judge had correctly acquitted the accused 'under section 249-A, Cr.P.C., Sardar Muhammad Ishaq, the learned counsel for the applicant has made an attempt to use this case a precedent for 'the fact that public servants who are charged with scheduled offences under the 1958 Act are exclusively triable by the Special Judge (Anti-Corruption). In the fourth case i.e. Abdul Sattar v. The State a learned Single Judge of this Court quashed proceedings pending before the Magistrate in respect of non-cognizable offences under the Cooperative Societies Act, 1925, which lacked proper sanction in accordance -with the prescribed procedure. In the fifth case, Hamdard Cooperative Society v. Government of Sindh, a Division Bench of this Court dismissed a Constitutional petition against issuance of notice by the Anti--Corruption Establishment on grounds that the purported cognizance was in respect of offences under the Prevention of Corruption Act, 1947, allegedly committed by officers of a Cooperative Society who were public servants. The offences were exclusively triable by Special Judge (Anti-Corruption) and as such the cognizance was in order. In the sixth case cited by the learned counsel for the applicant, i.e. The State v. Abdul Rahim Khan, it was held that employees of a Cooperative Bank of all categories were public servants within the meaning of section 21 of the P.P.C. Accordingly, in case they were charged with scheduled offences under the 1958 Act they were exclusively triable by the Special Judge (Anti-Corruption). Accordingly, proceedings before the Magistrate were declared illegal and without lawful authority in the exercise of Constitutional' jurisdiction. In the seventh case, i.e. Allah Warayo v. The State a Single Bench of this Court held that where a statute prescribed a forum or procedure for trial that ought to be adopted and not the ordinary procedure.
In this manner it was held that offences committed under the Customs Act were exclusively triable by the Special Judge (Customs and Taxation). In the last case cited i.e. Ghulamullah v. The State a learned Single Judge of this Court had expressed the view that proceedings without jurisdiction warrant quashment under section 561-A of the Cr.P.C.
6. On the other hand, Chaudhry Muhammad Iqbal, learned counsel for the State has supported the impugned order while contending that the offences in issue were committed by the applicant in his private capacity and as such there was no justification to press for a trial 'by the Special Judge.
7. I have given a serious thought to the matter and considered the arguments and cases cited by the learned counsel for the applicant. There is absolutely no cavil with the proposition that where a particular procedure is prescribed for doing a particular thing that thing has to be done according to that procedure. In case the prescribed procedure is not followed it would taint the entire proceedings with illegality or irregularity as the case may be. It is also a settled proposition of law that where a particular Court or forum has an exclusive jurisdiction to proceed with a case, any attempt by any other forum to take cognizance of the matter or institute proceedings would render the cognizance and proceedings void ab initio and of no legal effect.
8. At this juncture it would be pertinent to observe that the learned A.D.J. In the impugned order has assumed that the applicant is a public servant, the 1958 Act requires the offence to be committed by the accused in the capacity of a public servant, and that the applicant has conducted himself while committing the alleged offences in his private capacity and not in his capacity as a public servant. In order to resolve the controversies in issue the following points and issues have to be dilated upon:----
(i) Whether the applicant is a public servant? .
(ii) Whether the applicant has been charged with offences which are spelt out in the schedule to the 1958 Act?
(iii) Whether the scheme of the 1958 Act requires commission of offences by a public servant in his capacity as a public servant?
9. The first issue as to whether the applicant is a public servant hardly calls for any further scrutiny as the same is an admitted position. In State v. Abdul Rahim Khan PLD 1988 Lah. 802, the Court held that employees of a Cooperative Bank of all categories were public servants. Following the ratio it is held in this case that the employees of Excise and Taxation Department of any category would be public servants.
10. The second issue as to whether the applicant is charged with all the offences spelt out in the Schedule to the 1958 Act is now being dilated upon. As per the F.I.R. The appellant is charged with sections 420, 468, 471, 411, 412 and 34 of the P.P.C. Clause (b) to the Schedule of the 1958 Act includes sections 408, 409, 417 to 420 to 468, 471 and 477-A of the P.P.C. As most of the offences to which the accused is charged are mentioned in the Schedule of the 1958 Act I would hold this issue in the affirmative i.e. The applicant is charged with the offences spelt out in the. Schedule of the 1958 Act. Such was also the approach taken by the Lahore High Court in the State v. Abdul Rahim Khan mentioned above, which was cited with approval and applied by this Court in Mubarak H.
Siddiqui v. Sajjad Hasan Khan PLD 1992 Kar. 167.
11: In order to decide the third issue stated in para. 8 above it must first be borne in mind that the object of the 1958 Act, which was essentially an amendment to the operative criminal laws of the country was to create a Tribunal of special jurisdiction laying down special procedure for control of offences committed by public servants with a view to provide a speedy trial and effective punishment of offences spelt out in the Schedule of the said Act. The reasons for simplifying and short-circuiting the normal procedure and appointing Special Judges to deal with offences committed by public servants is not difficult to comprehend. The philosophy behind enacting such a special law was to primarily check the growing incidents of corruption amongst public servants which were desired to be controlled and curbed by a special machinery so that it may be effective also. Once again the wisdom of law was a realisation that public servants in their capacity can use their contacts and influence to undermine investigation and process of law illegally to go scot free.
Be that as it may, the jurisdiction of a Special Judge appointed under section 3 of the 1958 Act is to try and punish offences specified in the Schedule thereto. This jurisdiction is exclusively conferred on the Special Judge by virtue of sub--section (1) of section 5 of the said Act which through a non obstante clause excludes any thing contained in the Criminal Procedure Code or :any other law in force. As regards the cognizance of offences the much referred Schedule to the 1958 Act contains clauses (a), (b) and (c) alongwith clause (b) thereto are of relevance in the instant case which is reproduced for the sake of convenience as follows: "(b) Offence punishable under sections 408, 409, 417 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by a public servant as such or by the person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such."
In the course of examination I have been able to lay hands on a decision of a learned Single Judge of the Lahore High Court reported as Ashfaque v. The State PLD 1968 Lah. 1124. In this case while dilating upon clause (b) to the Schedule of the 1958 Act, the learned Judge expressed his view as under: -- "The construction sought to be placed by the learned counsel on the expression ' by any public servant-as such' obviously purported to mean that a public servant would be tried for such an offence only if it was relatable to and was committed in the course of normal discharge of his official functions. Reliance was placed in this regard on Mukhtar Ahmed v. The State PLD 1965 Lah.266 and Saeed Hai v. The State PLD 1967 Kar. 768. The argument seems wholly misconceived.
The interpretation sought o to be placed -by the 'learned counsel on the expression 'by any public servant as such' cannot be spelt out either from the statutory provision nor has it any warrant from known principles of interpretation. "
The learned Single Judge in that case was of the view that if a distinction was drawn between offences committed by public servant in his official and private capacities it would lead to an arbitrary distinction between the two kinds of offences committed by public servants, namely, offences relatable to the discharge of their official duties and those not so related. The Court was of the view that this would result in an absurd consequence and the distinction would be completely unreasonable inasmuch as that the 1958 Act was meant to advance the remedy and prevent the mischief. Respectfully, I am not inclined to agree with the views expressed by the learned Single Judge in Ashfaq Ahmed v. The State as referred above, essentially for two reasons, firstly, the referred clause (b) admittedly uses the expression "by any public servant as such". Any attempt to sanction the interpretation offered by the learned Single Judge in Ashfaq Ahmed's case would render the words "as such" to be redundant. It is a settled proposition of law that while interpreting statutes redundancy to any word or expression has to be avoided. Secondly, if there were to be no distinction between functions of a public servant relatable to his official duties and not so relatable thereto the consequence would lead to absurdity. Through use of the expression "by any public servant as such" the Parliament has intended to make the offences mentioned in the said clause
(b) exclusively triable by a Special Judge only when the public servant allegedly commits those offences in his capacity as a public servant and not in his private capacity or in his capacity which would have no nexus with his official functions and duties. This proposition can be further demonstrated by an illustration that supposing a customs official whose official function is to, assess import and export duties commits offences of misappropriation and forgeries in respect-of a piece of land owned by some one else he could hardly be seen as committing the alleged offence in his capacity as a public servant or in the exercise of discharge of his official duties. It would be completely absurd to try the said customs official through the special procedure under the 1958 Act. In this respect, I am further fortified in arriving at the conclusion that clause (b) to the Schedule of the 1958 Act clearly stipulates a distinction between functions of a public servant in his official capacity as opposed to private capacity and it is only in respect of the offences which are alleged to have been committed in the official capacity that a public servant is exclusively triable by the Special Judge, as further laid down by the following decisions:---
(i) Ganhwar v. The State PLD 1975 Kar. 239;
(ii) Pir Manzur Ali v. Secretary, Ministry of Interior PLD 1981 Lah. 505;
(iii) Muhammad Usman Khan v. Muhammad Arif Qureshi 1985 PCr.LJ 2701;
(iv) S. Mahmood Alam Shah v. The State PLD 1987 SC 250.
In the first case, Ganhwar v.. The State a learned Single Judge of this Court was called upon to adjudicate upon a controversy arising out of section 5(l)(d) of the Prevention of Corruption Act, 1947 (hereafter referred to as the 1947. Act). According to the said section 5(1)(d) of the 1947 Act a public servant commits g an offence of criminal misconduct if he by corrupt or illegal means or otherwise abuses his position -as public servant and obtains for himself or for any other person any valuable thing or pecuniary advantage. The learned Single Judge in this case was of the view that the words "as public servant" assume importance and would imply that a public servant acts as a public servant only when he patently or at least ostensibly acts as a public servant. Writing for the Court Abdul Hayee Qureshi, J.---(as he then was) expressed the view that the expression "as public servant" would necessarily entail that the public servant committed the alleged act in relation to his office or the alleged act bore a nexus with his office or his status as a public servant.
The learned Judge went on to hold that a public servant can discharge his duties only, as a public servant and not otherwise or in any other manner, while the moment he does an act in a different capacity he could not by any interpretation be said to be discharging his duties. The test as to whether person acted "as a public servant" was whether he expressly or ostensibly committed an offence or did an act in the garb of his office and whether the act boreany relation or semblance to the performance of his official duty. In the second case, Pir Manzoor Ali v. Secretary, Ministry of Interior, the matter concerned an Inspector of the Central Excise Department who was also an Assistant Manager-of a Fair Price Shop brought about by the Welfare Committee constituted by the employees of the. Central Excise Department and where the said shop had nothing to do with the Government. The Court held that the said inspector while acting as an Assistant Manager of the Shop did not act as a public servant. In the third case Muhammad Usman Khan v. Muhammad Arif Qureshi a learned Single Judge of this Court proceeded on the assumption that section 5 of the 1958 Act stipulates the distinction between the private and official capacity of a public servant when he discussed the facts of case before him while stating that the petitioner in that case allegedly persuaded the complainant end his friend to deliver their allotment orders while promising them allotment of alternate plots, in the capacity of Secretary of a Housing Society while committing offences as Secretary of that Society and as such was-exclusively triable by a Special Judge (Anti-Corruption). In the fourth case, S. Mahrnood Alam Shah v. The State a Full Bench of the Honourable Supreme Court while approving and applying Ganhwar v. The State interpreted clause
(b) to the Schedule of the 1958 Act as follows: "Clause (b) of the Schedule to the aforesaid Act (i.e. The 1958 Act) clearly lays down the offences included therein or triable by the Special Judge only when committed by a public servant ' as such'
Similar is the position in regard to the section 5(1)(d) of the Prevention of Corruption Act.
However, the facts of the present case admittedly are that the appellant was merely acting as an agent of his wife for purposed of collection of arrears of her salary. Therefore, although at the relevant time he was a public servant the transaction in which the alleged offences were committed was by no stretch of imagination a course of conduct which had any nexus with the duties performed by the appellant in his capacity as a public servant. He was clearly acting in his private capacity. "
In the light of the pronouncement of the Hon'ble Supreme Court I am not inclined to follow the decision of the Lahore High Court in the case of Ashfaque Ahmed as stated above. It appears that clause (b) of the 1958 Act clearly stipulates a diarchy between the functions of a public servant in his official capacity and functions in his private capacity. In my opinion whether a public servant has acted in his capacity as such so as to warrant invocation of clause (b). To the Schedule of the 1958 Act the test that is to be employed is whether the transaction in which the alleged offence is committed is by any stretch of imagination a course of conduct which had any nexus with duties performed by the accused in his capacity as a public servant. What is necessary to be seen is that the offence must be in respect of an act done or purported to be done in execution of duty that is in the discharge of an official duty. It must be purported to be done in the official capacity with which the public servant pretends to be clothed at the time, that is to say, under the cloak of an ostensibly official act though, of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and conveys to the mind I of any other the impression that he is so acting.
12. From the facts of the case as stated in the memo of the application as also in the impugned order and the F.I.R. Attached, it is not altogether clear as to in what capacity the applicant had committed the alleged offences. I am of the view that the learned A.D.J. Has materially erred in not recording preliminary evidence and scrutinizing the record so as to ascertain this point nor has discussed the same in the impugned order. From the facts that are before me I am unable to decide as to whether the applicant is to be tried in the normal course or whether the nature of offences alleged against him warrant trial by a Special Judge under the 1958 Act. In the normal course of events a remand order is only to be passed in highly exceptional circumstances since an order of remand exposes litigant to yet another round of cumbersome proceedings. However, the instant set of proceedings before me are of a highly exceptional nature and would warrant a remand order purely on the ground that the trial Judge or even the learned counsel for either sides have not been able to disclose the capacity in which the applicant has committed the alleged offences. I may point out at this stage that where cases are brought either of civil, criminal or fiscal nature against individuals and citizens of the State they should be done so after thorough investigation and after entertaining proper evidence in accordance with prescribed procedure.
There has been a growing tendency to remand cases where the functionaries of the State through their own mistakes institute cases against individuals without basis, evidence and upon conjectures. A remand order in such cases is highly objectionable and results in escalated harassm ent to individuals who are penalised to face a further set of cumbersome proceedings for no fault of their own. Also where during the course of investigation; scrutiny or examination the State officials invite replies by citizens and individuals against whom they are proceeding and those citizens and individuals comply with the requirements and submit what-so-ever is required from them, a further remand order would be completely out of place and would constitute an abuse of process of Court. However, in cases as the present one where the very jurisdiction of the matter is to be determined after recording further evidence by the trial Judge who has omitted to do so, a remand would become inevitable. Such was also the approach taken in Rashid Ahmed v.
The State 1992 ALD 281(2)
13. The upshot of above discussion is that I. Set aside the impugned order, and remand the case back to the learned A.D.J. With the direction to record preliminary evidence and scrutinize the necessary record and to apply the test dilated above to determine whether the applicant has committed the alleged offence in his official capacity or in his private capacity. The entire process is to be completed after giving proper opportunity, reasons and findings within one month of the receipt of the instant order. In case the learned A.D.J. Is of the view that is, of course, after applying the test dilated above, that the applicant has committed the alleged offences in his private capacity he/she may proceed with the matter while in case the conclusion is otherwise necessary steps are to be followed in accordance with the law and procedure to make arrangements to remit the matter to the Special Judge (Anti-Corruption) who is to be lawfully possessed of the matter.
This of course would not shut the doors of a further appeal in case the order passed by the learned A.D.J. One again suffers from any illegality or material irregularity of either law or fact.
14. Before parting with the judgment I may underscore another aspect of this case. The applicant in his memo of application has stated as ground No.4 the argument that since the applicant had been charged with a non-cognizable offence, no investigation could be conducted without the permission of the Magistrate under section 155(2) of the Cr.P.C. Which is lacking in this case.
Incidentally this point was neither raised nor pressed at the time of-.Arguments. Also no record is available to determine the validity of this argument which leaves me with no other option but to assume that the applicant and his counsel have abandoned this ground. However, in the interest of justice I would not like to close the doors to the applicant to this ground who can raise the same before the trial Judge at the time when the above issue that whether the applicant has committed the offence in his private or official capacity is adjudicated.