Law: Penal Code (XLV of 1860)

Section: S 21

(a) Penal Code (XLV of 1860) S 21, Ninthly, read with S. 161-Clause Ninthly explained-"Public servant"-Duties to be performed rather than designation, determining factor-Prosecu tion to establish that accused charged with taking illegal gratifica tion "as a public servant" answers that description-Accused variously described as "supervisor" Pak. Military Lands and Cantonment Service, and as "gardener"-Held, not to be a "public servant" in absence of any "satisfactory data" on record.   In every case in which the prosecution proceeds to the trial of a person for offences committed by him on the basis that he is a public servant, it is its duty to show that he is so, falling under one or more of the descriptions contained in section 21 of the Pakistan Penal Code. In some cases, the point may not admit of any difficulty and a person's designation may by itself speak of his status as a public servant; but where the official statutes of an accused person is not clear, and more especially in cases where it is denied that he is a public servant, it is the duty of the prosecution not to deal with the point vaguely, by the general description of a person by reference to his designation, but to bring on record the scope and extent of his duties to enable a correct determination of the question whether or not he is a public servant.   Under clause Ninthly of section 21, Pakistan Penal Code, 1860, a public servant must be an officer and his duties mentioned in the same clause are to be performed by him as such officer. To satisfy this clause, it is not enough that a person is shown to be an employee, but he must further be an officer, which means that he must be holding some office or "officium", humble or exalted, high or low, in the sense that he must exercise, to some extent, a delegated function of the Government and he must in this behalf be either himself armed with some authority or a representative character, or his duties must be immediately auxiliary to those of someone who is so armed.   The central idea in the concept of a "public servant" is that "apart from…