KHADIM HUSSAIN Versus THE STATE

The appellant namely Khadim Hussain son of Murad Ali, resident of Chhapran, Tehsil Bhimber, District Mirpur, Azad Kashmir, was tried for the charge under sections 409/420, P.P.C. read with section 5(2) of the Prevention of Corruptions Act, 1947 in a case registered against him on 27-8‑1988 at Police Station F I.A. Crimes, Rawalpindi, by the learned Special Judge (Central), Rawalpindi. The learned trial Judge having found the appellant guilty of an offence under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 convicted him accordingly and sentenced him to undergo R.I. for four years with a tine of Rs.87,000 and in default of the payment of fine to undergo R.I. for one year through judgment, dated 4‑5‑2000. The appellant was, however, allowed the benefit of section 382‑B, Cr.P.C. and was acquitted from the charge under section 420, P.P.C. The tine if realized was directed to be paid as compensation to the Immigrants' Advisory Service, Mirpur. The allegations against the appellant were that he while discharging the function of Director of Immigrants, Advisory Service, Mirpur, a non‑governmental Organization, in lieu of the service rendered by him to the Immigrants of Azad Kashmir in United Kingdom received an amount of Rs.87,360 through drafts and charges from the immigrants on the pretext that the funds were not available with the Advisory Service and deposited the said amount in his personal account at Mirpur.

2. According to the prosecution, actually the appellant in his capacity as Director of Immigrants Advisory Service conducted the inquiries into the affairs of the immigrants on the expenses of the Government and used official conveyance despite the fact that he was being paid monthly conveyance allowance. Upon a complaint lodged containing the allegation of financial irregularities an inquiry was conducted by the F.I.A. and appellant was found to have misappropriated the funds collected by him from the individuals, consequently a case was registered against him to face the trial for the above‑referred charges.

3. In proof of the charges against the appellant the prosecution produced 10 witnesses at the trial. Muhammad Rashid P.W.1 deposed that the appellant as Director of the Advisory Service was not authorised to receive funds from the individual immigrants. Ghulam Rasool, Zonal Chief of Bank P.W.2 has proved the account statements P.1 to P.7 bearing his signatures. Arif Mahmood P.W.3 and Muhammad Ismail P.W.4 were declared hostile and were accordingly cross‑examined by the prosecution. Abdul Qadeer Khan, Zonal Chief of: Bank P.W.5 stated that Khadim Hussain was operating his personal Account bearing No.7205 in the main Branch Mirpur and that his account was‑ transferred from Karachi to Mirpur. He proved the specific signatures of appellant on the Bank card and the statement of accounts relating to the period from 1‑1‑1983 to 5‑7‑1987. He also proved the remaining documents pertaining to the account in question which were taken into possession by the Investigating Officer and were made part of the record. Mir Afzal P.W.6 was also declared hostile. Muhammad Sabir Ansari P.W.7 who was Councillor of the Advisory Service during the relevant period while supporting the prosecution stated that certain amounts sent by the immigrants from abroad were received by the appellant. Khaliq Ahmad Khan P.W.8 and Muhammad Gulshan Khan P.W.9 are the formal witnesses whereas Najabat Hussain P. W.10 conducted the initial inquiry and subsequently on conclusion of the investigation submitted the challan against the accused.

4. The appellant has made the following statement under section 342, Cr.P.C "It is incorrect that all the P. Ws. deposed against me. Only two P.Ws. P.W.1 and P.W.7 deposed against me because they were inimical towards me. P.W.1 Muhammad Rasheed now Director (I.A.S.P.) was my subordinate at that time and has close relations with Mr. Farooq Niaz, then D.C., Mirpur and Chairman, Immigration Advisory Service. P.W.1 wanted to have been posted on my seat due to this reason he deposed against me.‑ P. W.7 Muhammad Sabir Ansari, Councilor (I.A.S.P.) was also inimical towards me because he was involved in Anti‑State activities. District Magistrate, Mirpur of that relevant time had written me a letter that P.W.7 Sabir Ansari is involved in anti‑State activities and he directed me to take necessary actions and informed the office of D.M. of steps taken by me. I suspended P.W.7 as criminal case was registered against him, due to this grudge he deposed against me.

Mr. Farooq Niaz who was D.C., Mirpur and was Chairman of (I.A.S.P.) at that relevant time once asked me to make lunch arrangements for his friends, which I refused to do so as I have no funds to entertain his personal friends. At this Mr. Farooq Niaz became annoyed and told me that he will see me. Then he wanted to appoint someone else on my seat who could act according to his wishes. P.W.1 Muhammad Rasheed who is his close friend wanted to take my seat. They both joined hands with P.W.7 Muhammad Sabir Ansari and implicated me in a false case."

5. Learned counsel for the appellant contended:

(a) That Immigrants Advisory Service is a non‑Governmental organization and appellant being its Director neither was a public servant nor was entrusted public money and thus, the registration of a case against him by the F.I.A. under section 409, P.P.C read with section 5(2) of the Prevention of Corruption Act, 1947 and subsequent trial by the Special Judge was without jurisdiction and illegal.

(b) The jurisdiction of the learned Special Judge has been attacked on the following grounds:

(i) The appellant being not defineable as public servant, the offence allegedly committed by him was not triable by the Special, Judge Central as a scheduled offence.

(ii) That the alleged offence was not committed in the territory of Pakistan and the appellant also being resident of Azad Kashmir, the Courts in Pakistan were not competent to assume the jurisdiction.

(iii) That the Immigrants Advisory Service Mirpur was not an Organization either controlled or financed by the Federal Government or a body established under any law of Pakistan and mere fact that the Deputy Commissioner, Mirpur was the Chairman of the Advisory Committee would not change its character of non governmental organization into a governmental organization, and the appellant being the Director of the, organization in question would not acquire the status of "public servant" to be tried by the Special Judge (Central) for the commission of alleged offence even in the territory of Pakistan.

(d) Learned counsel while summing up his arguments contended that the learned Special Judge was neither empowered to take cognizance of a non‑scheduled offence nor he had territorial jurisdiction to proceed against the appellant and thus, the conviction and sentence was without jurisdiction.

7. Learned Federal Counsel with reference to certain letters placed on record contended that the Deputy Commissioner, Mirpur under the direction of the Federal Government was supervising the Immigrant Advisory Service which was dealing with the affairs of the Immigrants of Azad Kashmir in United Kingdom and thus, in the light of its function, the said Body would be deemed to be a governmental organization which was being run with the funds provided by the Federal Government. He has, however, not been able to point out any evidence on record through which it could be established that Immigrant Advisory Service was being financed by the Federal Government or it was established under a directive, circular or a notification issued by the Federal Government of Pakistan, or under any law of Pakistan. Learned Federal Counsel also has not been able to point out any evidence on record to show that the appellant by nature of his duties would be defined as public servant in terms of section 21, P.P.C. to be charged under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. However, the learned Federal Counsel stressed that since the Immigrant Advisory Service was being supervised by the Deputy Commissioner, therefore, it would be deemed to be a semi official body and its employee would fall within the definition of public servant. He, however, has not been able to convince me that even in such situation how the trial of the alleged offence which was not committed in the territory of Pakistan would be triable by the Special Judge (Central), Rawalpindi.

8. The prosecution case is that the appellant received certain amounts from the immigrants of Azad Kashmir in United Kingdom and instead utilizing the said amount on their welfare used it for his personal gain. This is noticeable that the amount in question belonging to the individual was a private money and not a public money and further it was also not entrusted to the appellant by the Federal Government of Pakistan or Government of Azad Jammu and Kashmir. Instead the amount in question having entrusted to the appellants by the immigrants for the purpose of inquiries as Director, Advisory Service and he neither did receive such amounts on behalf of Government of Pakistan for such inquiries nor it was the case of prosecution that he usurped the same as an agent of Federal Government in the Immigrant Advisory Service.

For the purpose of better appreciation of the proposition convassed in the present appeal the examination of relevant provisions of law is essential. "The public servant, has been defined in section 21, P.P.C. as under:

"'Public servant': The words 'public servant' denote a person falling under any of the descriptions hereinafter following namely:‑‑

First. (Omitted by Ordinance XXVII of 1981).

Second. Every Commissioned Officer in Military, Naval or Air Force of Pakistan while serving under the Central Government or any Provincial Government:

Third. Every Judge;.

Fourth. Every Officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process or to administer any oath, or to interpret, or preserve order in the Court; and every person specially authorized by a Court of Justice to perform any of such duties; Fifth Every juryman, assessor or member of Punchayat assisting a Court of justice or public servant; Sixth. Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority.

Seventh. Every person who holds an office by virtue of which he is empowered to place or keep any person in confinement; Eighth. Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety or convenience;

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 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 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 the Government or remunerated by fees or commission for the performance of any public duty; Tenth. Every officer whose duty it is; as such officer, to take, receive, keep or expound‑any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh. Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election."

Section 409, P.P.C. is read as under:‑‑‑

"409. Criminal breach of trust by public servant or by banker, merchant or agent.‑‑‑ Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Section' 5(2) of the Prevention of Corruption Act, 1947 is reproduced as under:‑‑

"Any public servant who commits (or attempts to commit criminal misconduct) shall be punishable with imprisonment for a ‑term which may extend to seven years or with fine or with both."

The perusal of the above proposition of law would show that:‑‑‑

(a) The jurisdiction of the Special Judge (Central) is confined only to the extent of offences mentioned in the schedule if the same are committed by a public servant.

(b) The appellant being director of organization (N.G.O.) was not a public servant.

(c) The trust with him was not a public but was a private trust.

(d) The provisions of sections 409, P.P.C. and 5(2) of the Prevention of Corruption Act, 1947 were not 'applicable to such Trust and person.

(e) That the transaction of misappropriation of money was not conducted in any part of the Pakistan or in relation to the property belonging to Government of Pakistan.

(f) The appellant 'was a citizen of Azad Jammu and Kashmir and alleged offence was also committed in Azad Jammu and Kashmir.

The trial for the charge under the provisions of section 409, PAC read with section 5(2) of the Prevention of Corruption Act, 1947 before Special Judge (Central) without the proof of abovementioned elements would render the ultimate conviction and sentence illegal. The learned Special Judge without determining the status of appellant as public servant and the nature of transaction and offence while travelling on the basis of presumption assumed the jurisdiction. The commission of an offence of misappropriation of the private funds .by a person falling within the definition of public servant even would not be triable by the Special Judge whereas in the present case neither the appellant was a public servant nor the public property was involved. Further, the alleged offence admittedly was committed within the territorial jurisdiction of Azad Kashmir and the amount was also received by the appellant in Azad Kashmir to be utilized for the purposes of inquiries of A immigrants belonging to Azad Kashmir and more so the Advisory Service was also functioning in Azad‑Kashmir, therefore, there was no fun to register a criminal case against the appellant by the F.I.A. at Rawalpindi and submit challan before the Special Judge (Central) at Rawalpindi. The oral assertion that the appellant by virtue of his position as Director, Advisory Service would be deemed to be a public servant and that the Advisory Service was established by the Federal Government without any documentary proof was not, enough either to declare the Advisory Service, a non‑governmental organization as an organization of Government or that the appellant was a public servant. The commission of an offence in Azad Kashmir by a citizen of Azad Jammu and Kashmir would not be as such triable by a Court l established by the Federal Government of Pakistan.

9. For the foregoing reasons, I set aside the conviction and sentence of the appellant and allow this appeal. The appellant is on bail, his bail bonds shall be discharged.

N.H.Q./K‑65/L Appeal allowed.