Aqa S. ASGHAR HUSSAIN vs The STATE

ORDER

1. FAKHRUDDIN G. EBRAHIM, J.-This appeal is directed against an appellate order of a learned Judge of the High Court of Sind upholding the appellant's conviction under section 409, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentence of one year R. I. a fine of Rs.

2. 10,000 as awarded by the Special Judge, Anti-Corruption (Central), Karachi vide his judgment dated 3rd July, 1965.

3. The appellant was appointed as an auction contractor on commission basis under an agreement with the General Manager, Telephones, Karachi for disposal of certain unserviceable material by public auction and it was alleged that he had in that capacity embezzled certain amounts of money which were not accounted for. The appellant had drawn two cheques of Rs. 4520/13 and for adjustment of the dues against him which were, however, returned dishonored by the concerned Bank.

4. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, raised only one contention in support of this appeal, namely, want of jurisdic--tion in the Special Judge to try and convict the appellant as the appellant was not a public servant within the meaning of the term as categorised in section 21of the Penal Code.

5. The appellant was appointed as auctioneer to the General Manager, Telephone, District Karachi under agreement dated 4-6-1959 for the period from 29-5-1959 to 30-10-1959. The function of the appellant was to arrange sale by public auction of such material as may be desired on commission basis namely 9 % for sale proceeds up to Rs. 5,000 and 3 % for sale proceeds above Rs.

6. 5,000. The appellant was required to deposit at the close of each day's sale at least 25 % of the sale proceeds with the Department together with a list of the day's bidders, the material auctioned and the total price of the auction. The rest of the sale proceeds the appellant was required to deposit within a week of the sale and before lifting the material. The appellant was permitted to deduct his commission charges from the last installment of the sale proceeds of each sale.

7. Mr. Sattar Shaikh, the learned Additional Advocate-General, by reference to the aforesaid functions of the appellant, contended that the appellant was a public servant within the meaning of clause

(9) of section 21, P. P. C. Which clause reads as follows "Every officer whose duty it is, as such officer, take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate or to report, on any matter affecting the pecuniary interest 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."

8. It is obvious that the appellant was an officer whose duty was to receive property on behalf of the Government, to protect the pecuniary interests of the Government and for services rendered to be remunerated by com--mission. The appellant, therefore, squarely fell within the aforesaid clause

(9) of section 21 of the P. P. C.

9. Mr. Hayat Junejo, the learned counsel for the appellant, while conceding that the functions and duties entrusted to the appellant were those con--templated by the aforesaid clause 9, went on to argue that the additional requirement was that the appellant was an officer, and since the appellant was admittedly not in the regular employment of the Government, be was not an officer.

10. The argument not only overlooks the other clauses of section 21, P. P. C. But even otherwise imports in clause (9) a consideration foreign to its term. Clause (9), it may be noticed, turns a person an officer by reference to his functions and duties. It is not the designation of person that matters for the guiding factor is the duties to be performed Unlike clause (1) of section 21 this clause is not limited to persons in the regular employment of the Government. Moreover, the appellant while acting as an auctioneer to the Government was in fact, performing a delegated function of the Government. He was, therefore, an officer of the Government entrusted with the duties contemplated by said clause (9).

11. In this view of the matter, the appellant was subject to the Prevention of Corruption Act, 1947 and since his conviction was otherwise not questioned, this appeal is dismissed and the appellant will be re-arrested to undergo the remainder of his sentence.