P L D 1964 (W (PLP)

3. The facts that give rise to this application, according to the applicant, are that on the 20th of November 1962, he filed a complaint against the three opponents under sections 192/193, 196, 348, 219, 220, 342, 504 and 506, P. P. C., the basis of the complaint being that the opponent No. 1, Mr. Bashir Ahmad, as the Superintendent of Police, bore a personal animosity and grievance against the applicant and by virtue of his official position in the District of Sanghar, and in order to wreak personal venge ance, had succeeded in having the applicant and others prosecuted under section 107 read with section 151 of the Criminal Procedure Code. This action, according to the applicant, was completely without justification, in consequence of which he was confined, humiliated and disgraced. It was stated that opponent No. 3 Mubin Ahmad as the Deputy Collector, Shahdadpur, before whom the proceedings under section 107, Cr. P. C., took place, according to the applicant, conducted himself in a biased and partial manner and conspired with Mr. Bashir Ahmad, the Superintendent of Police, to humiliate the applicant, and that he made attempts to extort a confession out of applicant in the course of the proceedings, during which he took illegal actions against him, and to that end threatened, intimidated and pressed the complainant. The further allegation was that opponent No. 2, Mr. Vilayat Ahmad Khan as the Deputy Commissioner, had conspired with the other two opponents, to wrongly confine and detain the applicant, even after it was ordered that the applicant be released on furnishing sureties. Finally, it was contended that since these officials had acted on grounds of personal malice and spite, the sanction of Government was not necessary, and that their conduct be inquired into. In paragraph 15 of the complaint it was stated that the Government of West Pakistan had been moved against these opponents for necessary action to be taken against them. An inquiry was conducted by the D. I. G. of Police, Khairpur, but without success thus forcing the applicant to file a complaint in a Court of law. Five witnesses were mentioned in the complaint, of which one Syed Moizuddin, Advocate, is a brother of the applicant. This complaint was presented in the Court of the learned Civil Judge and F. C. M., Shahdadpur, Mr. Fakhrud din Ahmad, who returned the complaint for presentation to the Court of relevant jurisdiction, as all the opponents were gazetted Government Officers, and he could not, in the circumstances, entertain it. On 24th November 1962, the complaint was presented to the learned Additional District Magistrate, Sanghar, Mr. Shafi Muhammad, who on reading the contents, retained it with himself for a number of days, and then returned it to the applicant. On 11th December 1962, the applicant became aware that Mr. Shafi Muhammad, the Additional District Magis trate, had been transferred, and had relinquished charge to one Mr. Ghulam Muhammad. This latter officer was approached, but he also refused to take cognizance, stating that he was not invested with the necessary powers. Thereafter, the applicant saw the opponent, Mr. Villayat Ahmad Khan, the Deputy Commissioner, Sanghar, and presented the complaint to him. This officer also regretted his inability to entertain it, as he himself had been named in the complaint as one of the accused persons.

4. When this application was first heard in this Court, my learned brother Mr. Justice A. R. Khan, on the 5th of February 1963, ordered that report be called for from Mr. Fakhruddin, the learned Civil Judge and F. C. Magistrate Shahdadpur, Mr. Shafi Muhammad the District Magistrate Sangbar, through opponent No. 2, the Deputy Commissioner Sanghar, with the latter's remarks. These remarks are on the file. Mr. Villayat Ahmad Khan's report is that at the time Mr. Ghulam Muhammad was not invested with A. D. M.'s powers and could not legally enter tain the complaint. Secondly, that as Mr. Villayat Ahmad Khan was himself shown as an accused person in the complaint, he could not take cognizance of the offence against himself, and explained this position personally to the applicant, advising him to approach the proper Court of law. Mr. Fakhruddin's report was that according to the standing orders of the late Sind Government, all cases against Government Officers drawing a salary of more than Rs. 70 per mensem, and all cases of assaults on Government servants could be tried only by the District Magistrate, by the Additional District Magistrate or by the Sub‑Divisional Magistrate, and as he had no jurisdiction to entertain the complaint, he resorted to the only course left to him, namely, that of returning the complaint to the applicant to be presented to the proper Court.

5. Mr. Shafi Muhammad's report dated 18th February 1963, is to the effect that he refused to entertain the complaint as one of the offences in the complaint was exclusively triable by the Court of the Special Judge, Anti‑Corruption, and he did not have the necessary powers to do so.

6. Finally, the report of Mr. Ghulam Muhammad the Daftardar to the Deputy Commissioner Sanghar, is to the effect that he had informed the applicant that as the Additional District Magistrate of Sanghar he was not invested with the necessary powers, he could not entertain the complaint.

7. I have heard Mr. S. M. Raza for the complainant and Messrs Hyder Bux, Azizullah K. Shaikh and Mr. Hashmi for the opponents. It is necessary to state here that during the three consecutive days on which this application has been heard, the applicant has not been present in person, and on the final date of hearing, namely, the 2nd of October, in the absence of Mr. Raza, Syed Mohiuddin, a member of the Bar, attempted to reply to the arguments of the learned counsel of the opponent but it was pointed out to him that although he was a member of the Bar, he was on his own admission a brother of the applicant, and indeed has been cited as a witness in the complaint, lodged by the applicant, his brother, and it was not desirable that he should appear in these proceedings. He, therefore, withdrew from the proceedings.

8. The point now for determination is whether the inherent powers of this Court should be invoked in favour of the applicant, and whether his prayer should be granted.

9. Learned counsel for the opponents have raised very substantial points, which, in my opinion, establish that this application is misconceived. It has been pointed out that sections 192/193 and 196, P. P. C., which are some of the sections mentioned in the original complaint by the applicant, are hit by the provisions of section 195‑B of the Criminal Procedure Code. Further that sections 342, 504 and 506, P. P. C. and the other sections of the complaint are further hit by the Conciliation Courts Ordinance (XLV of 1961) read with its First Schedule, and that sections 348, 219 and 220, P. P. C., prima facie relate to offences which could only be committed by public servants in the performance of their official duties. It is, therefore, urged that the original complaint by the applicant made in the Court of the learned Civil Judge and F. C. M., Shahdadpur could not possibly be entertained for want of sanction, and also on the ground that the applicant personally could not institute it.

10. In S. M. H. Rizvi v. Abdus Salam and another (P L D 1960 S C 358), their Lordships observed that the purpose of section 197, Cr. P. C., appears to be to define a sphere in which departmental or administrative law should be applicable at the option of Govern ment to the conduct of such public servants. The limits of the applicability of administrative law are to be set in each case by the ordinary Criminal Courts, on the basis of their opinion as to whether the action in question was performed by the offending official "while acting or purporting to act in the discharge of his official duty". They further observed that "the purpose of section 197, Criminal Procedure Code has often been declared in judicial pronouncements to be to protect public servants against vexatious prosecution by members of the public. That may possibly be one object, but a more correct view would appear to be that the Government which has complete control over its officials while engaged in the performance of their official functions, is by that section, also empowered to deal at its option with matters of excess in the discharge of those functions, provided that the excess is within the scope of those functions, and the behaviour cannot be thought to constitute an independent injury or offence falling within the ordinary law and wholly outside the departmental authority of the Government.

11. Similarly in Syed Ahmad v. The State (P L D 1958 S C (Pak.) 27), their Lord ships held, that

Since it is clear that the commission of offences can never be part of the duties of any official, the scope of such duties must be interpreted, for the purposes of the protection afforded by section 197, Criminal Procedure Code, in a sense wider than that covered by the precise acts which the official is authorised by the law or other instrument governing the matter, to perform. The act must therefore be one connected with the performance of those duties, and in order that the question should at all arise whether this act should be allowed to be made the subject of a criminal charge, it must be in excess of the exact duties in question. Yet it must be also an act reasonably connected with those duties in the sense that when the official is discharg ing or professing to discharge those duties, a reasonable person might assume that he could or might act in that way. That is the sense in which the statement of the Privy Council in Gill's case 75 I A 41, viz., that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be understood.

12. In A. K. M. Reza v. The State (P L D 1958 Dacca 111), it was held that for the prosecution of the public servant, no question of sanction can arise under section 197, Cr. P. C., unless the act complained of is an offence, and the offence alleged to have been committed, has something to do, or is related in some manner, with discharge of official duty.

13. Bearing these principles in mind, and reading the com plaint originally lodged by the applicant before the learned Civil Judge and F. C. M. Shahdadpur, the impression is indelible that all the acts attributed to each one of the opponents, principally to Bashir Ahmad, the S. P. of the District of Sanghar, and to the other two opponents, as the Deputy Commissioner of the District and as the Deputy Collector, were all done consequent to, and by virtue of their official position, which gave them the authority, and, therefore, the power, which according to the applicant, impelled them to actions alleged against them themselves by the applicant.

14. It is further contended that even if on the basis of the complaint any offence had been made out against the opponents, it could not be instituted or proceeded with for want of necessary sanction. Thus, apart from the consideration that the opponents have been transferred from their respective official positions which they held when the complaint was filed, it is clear that the applicant could not possibly proceed against the opponents. Besides, as the applicant has stated in para. 15 of his complaint, he has moved the Government of West Pakistan for drastic action against the opponents. This inquiry having already commenced, ,U he should have waited for the findings and report before lodging a complaint. In the alternative, he should have moved Govern ment for the necessary sanction, and later the Courts concerned.

15. The third point raised is that the present application as such is misconceived, and that the question of invoking the powers of this Court under section 561‑A, Cr. P. C., do not arise.

16. I have been referred to Muhammad Samiullah Khan v. The State (P L D 1963 S C 237), where their Lordships observed that The jurisdiction under section 561‑A of the Criminal Procedure Code, 1 898 is of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available. It is of a limited scope and cannot be utilised where there is other express remedy provided by the Code of Criminal Procedure. In the exercise of the inherent juris diction under this section the High Court can neither exercise the powers of a Court of Appeal nor can it enhance a sentence nor can it even reconsider the question of sentence. It is design ed to prevent an abuse of the process of Court and cannot be regarded as being wide enough to give to the High Court the same power that it has under section 435 read with section 439 of the Code of Criminal Procedure to examine the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. Such wide powers can only be exercised under section 439 of the said Code. The scope of the jurisdic tion exercised under these two provisions is not similar. The revisional jurisdiction of the High Court under section 439 is indeed wide and .is not confined merely to errors of law. In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases, disturb findings of fact, as, for example, where the Subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important piece of evidence has been ignored. These things the High Court cannot do under section 561‑A. The two jurisdictions are thus fundamen tally different. indeed, as a rule, the inherent jurisdiction of the Court to correct an abuse of process of Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with. It has, therefore, been urged, and I feel quite rightly, that when the original complaint presented before the learned Civil Judge and F. C. Magistrate, Shahdadpur, was returned to the applicant with the endorsement of the learned Civil Judge dated the 20th November 1962, he should have moved the Sessions Court or this Court in its revisional jurisdiction, to consider the matter and send the complaint for disposal according to law, to a Court of relevant jurisdiction. It is therefore quite apparent that the prayer of the applicant cannot be entertained and the inherent powers of the Court now cannot be exercised in his favour. The applicant must persue his other remedies according to law, but for the present, this application must be dismissed. I order accordingly. S. Q./K. B. A. Application dismissed.