MUHAMMAD IFTIKHAR HAMID TARIQ Versus THE STATE
1. These two applications under section 561-A Cr.P.C. have been filed by applicants, Mohammad Iftikhar Hamid Tariq and Nisar Ahmad for quashment of their proceedings pending in the Court of Special Judge, Anti-Corruption (Provincial), Karachi. I propose to dispose of both these Cr.Misc. Applications No.1429/86 and 1430/86, by this single order.
2. Briefly the facts are that one Mohammad Yousuf lodged report with Anti-Corruption Police that K.D.A. staff have made bungling in the allotment of plots meant for Hawkers in Clifton area and one Head Draughtsman, Arshad of K.D.A. came in contact and desired to dispose of some plots of 10 sq. yds. and 16 sq. yds. on the condition that though the official rates for 10 sq. yds. are Rs.4,368 and 16 sq. yds. Rs.6,668 respectively but he would arrange for the said, plots for Rs.14,000 and Rs.25,000 respectively. The case was registered and raid was arranged. The tainted money was secured from accused. There is also allegation that applicant, Mohammad Iftikhar Hamid Tariq alongwith applicant, Nisar Ahmad, is running the Estate Agency.
3. The case was sent up in the Court of learned Special Judge who on the application of P.D.S.P. framed separate charges. In case No.21 of 1983, charge under section 161, 162, 34, PPC read with section 5(2) Act II of 1947, was framed against Mohammad Arshad, Mohammad Adil, Mohammad Iftikhar Hamid Tariq and Nisar Ahmad. In Case No.1l/84, charge under section 168 PPC was framed against Mohammad Arshad, Mohammad' Adil and Mohammad Iftikhar Hamid Tariq. In both the cases evidence of some witnesses have been recorded. Applicants filed an application under section 249-A Cr.P.C. and the same was dismissed by the learned Special Judge by an order dated 18th May, 1986.
4. Mr. Rashid Akhund, appearing for the applicants argued that sanction for the prosecution is not proper as it has not been signed by all the members of the Committee. He has referred to the cases reported in P L D 1977 Lah. 1412 and P L D 1977 Lah. 1337. It is submitted by the learned Counsel that applicant Mohammad Iftikhar Hamid Tariq is employee of Water Management Board and is not public servant; therefore, Special Judge is not competent to take cognizance. It is contended that applicant is not an officer; therefore, case does not come under the purview of Anti-Corruption Laws. He has referred to the cases reported in P L D 1980 Lah. 597; P L D 1985 Kar. 720, P L D 1962 Lah. 144 and 1981 S C M R 1112. Mr. Akhund states that there is no evidence against the applicants.
5. Mr. A.I. Karni, appearing for the State submitted that case has proceeded and applicants alongwith co-accused were caught on the spot while accepting illegal gratification, and that all employees of Local Government, are public servants.
6. The first contention is with regard to the sanction. The letter of sanction of the prosecution has been signed by the Chairman, Anti-Corruption. Committee No.II, Karachi. The Committee by way of Notification consists of the members and normal procedure is that such matters are placed before the Committee. In this case, letter has been signed by Syed Sardar Ahmad, Chairman of A.C.C.-2. It is clear that sanction for the prosecution has been granted by the Committee. There is no harm if letter has been signed by the Chairman. The Chairman of the Committee has clearly stated in the last para of sanction order as under:-
7. '"And whereas the facts and circumstances of the allegations were fully considered on 24-8-1983, by the ACC-II which was of the opinion that sanction for' the prosecution of the said Mohammad Arshad is necessary and expedient in the interest of justice.
8. Now therefore, I, Syed Sardar Ahmad, Chairman of the said ACC-II and as such authorised so to do hereby grant sanction for the prosecution."
9. The other legal point taken by the learned counsel for the applicant, Mohammad Iftikhar, is that he is employee of Karachi Water Management Board; therefore, being an employee of Corporation, he is not a public servant. This point has been dealt with by the learned Special Judge, in his order in detail and has come to the conclusion that accused was a public servant by virtue of being an employee of K . D . A . It may be mentioned that all the K . D . A employees under Article 121 of K . D . A . Presidential Order No. V of K D A 1947 , and all Local Bodies Employees in view of section 116 of the Sind Local Government Ordinance, 1979. Members and servants of the Councils are public servants within the meaning of section 21 of the Pakistan Penal Code. Government of Sind by Sind Ordinance No.II of 1983, amended the Sind Local Government Ordinance, 1979 and included sections 121 to 148, by this amendment Karachi Water and Sewerage Board has been established and Karachi Water Management Board Ordinance, 1981, has been repealed, by the same amendment under section 139-A which reads as under:-----
10. "139 (1) Employees of the Karachi Development Authority and Karachi Metropolitan Corporation serving in connection With the water supply and sewerage service and the Karachi Water Management Board, may be transferred to serve under the Board as Government may direct and on such terms and conditions as may be determined by Government:
11. Provided that such terms and conditions shall not be less favourable than those admissible to such employees immediately before such transfer.
12. Provided further that the employees so transferred shall, until the terms and conditions of service are determined under this Ordinance continue to be governed by the same terms, and conditions as were admissible to them immediately before such transfer:"
13. The employees of the Board are governed by the same-terms and conditions on their transfer. First of all as observed by the learned. Special Judge as Mohammad Iftikhar is employee of the K.D.A. and furthermore, by virtue of the same Sind Local Government Ordinance and as per amendment which is part of the Ordinance, 1979, the applicant is public servant. The case has proceeded and almost entire evidence have come on record. I am of the view that in the light of the cases reported in P L D 1977 SC. 49, 1984 P Cr. L J 2227 and 1984 P.Cr.L.J. 2933, when evidence, is completed, the quashment is not competent. All the points taken by the learned counsel have been considered and I am of the view that no case for quashment have been made. Both these quashment applications are dismissed and stay granted stands vacated.
14. M . Y . H . / M-299 / K Petitions dismissed.