P L D 1971 Lahore 994 (PLP)

5. On the other hand it is contended by the learned counsel for the State that although an initial presumption of propriety would attach to the visit of the petitioner and his co‑accused to the complainant's premises yet the protection envisaged by section 127 of the Municipal Administration Ordinance read with Article 98 of the Basic Democracies Order could not be extended to acts performed by a public servant in excess of his authority and otherwise amounting to an offence. Reliance is placed in this regard on Dilbar Hussain v. Ch. Khurshid Ahmad (P L D 1956 Lah. 965), Amin‑ul‑Haque v. Abdul Wahab (P L D 1956 Dacca 250), Dhannjay Ram Sharma v. Messrs Uppadaya and others (AIR 1960 S C 745), Syed Ahmad v. The State, Ismatl and 2 others v. The State and another (P L D 1970 Kar. 261) and Ghulam Muhammad v. Mumtaz Khan (P L D 1967 S C 317). In answer to the other contention relating to offences under sections 323 and 504 being exclusively triable by a Conciliation Court it is contended that section 3(2) of the Conciliation Courts Act has clearly created an exception in regard to proceedings against public servants.

6. The complainant who is present in person and has since become an Advocate of the lower Courts has adopted the contentions raised on behalf of the State. He asserts that he had not been guilty of any encroachment; that the area under his occupation adjoining the main road is fully covered by the decree passed by the civil Court in his favour and yet the Municipal Authorities had persistently harassed him.

7. It appears to me that the complainant is occupying the premises under a bona fide belief that he is entitled to its use and according to him it does not amount to an encroachment whereas it appears to have been held so frequently by the Corporation authorities. In the circumstances, one can hardly doubt the bona fides of the petitioner and the other co‑accused in visiting the premises and trying to remove in good faith the so‑called encroachment. Prima facie, therefore, there could be no question of their forming themselves into an unlawful assembly and committing criminal trespass and as such the invocation of sections 140, 149 and 447, does not appear to be justified. Of course the other allegations under sections 323, 355 and 405 are consequential in nature, when in all probability the situation took an ugly turn after the petitioner had visited the premises in an authorised manner.

8. The question that falls for determination however is whether in the event of the accused having done something in excess of their authority as alleged against them, they could still be entitled to the protection available to them under section 127 of the Municipal Administration Ordinance read with Article 98 of the Basic Democracies Order.

9. The authorities relied upon by the learned counsel for the parties mostly deal with the scope and interpretation of section 197 of the Code of Criminal Procedure and as such would not be directly in point. However, some assistance could be collaterally derived from them. In Sukhdeo v. Emperor, a witness filed a complaint against a Magistrate for having used insulting language while the former was in the witness‑box. It was held that the sanction was necessary. In Subbiah v. T. Ramacharlu, the accused was President of a Panchayat Court and had abused the complainant, slapped him on the cheek also unlaced his shoe, took it up in his hand and shouted at the complainant: "I will beat you with my shoe." This happened when the complainant objected to the dictation of judgment by the accused to his clerk. The sanction of the local Government was considered necessary as he purported to act in the discharge of his official duties. In Syed Ahmad v. The State, the facts were that a subordinate railway employee had alleged against his superior, a District Traffic Superintendent that he had slapped, pushed and dragged him by the shirt and ordered the Stationmaster to keep him in under lock and key. The view taken was that no sanction was required in respect of the charges of wrongful confinement. It was further held that the Court trying or inquiring into an alleged offence should drop the proceedings as soon as it was satisfied that the offence was committed if at all while the officer was noting or purporting to act in the discharge of his duties. It was open to a Magistrate when trying a case of this nature to come to a conclusion at any stage of the trial that in respect of some or all the offences alleged the sanction of the appropriate authority was necessary. It appears appropriate to reproduce the relevant observations of their Lordships :‑ "The principles which are applicable to the decision of the question before us are plain. Several of them have been correctly stated in the judgment of the learned Sessions Judge. The rule, that for the application of section 197, Cr. P. C. valid test might be that the act alleged against the public servant should lie within the scope of his official duty, and that he should be able to claim reasonably that what he did, he did in virtue of his office was laid down by the Privy Council in Gill's case (73 I A 41). This principle has been cited with approval in a number of important cases decided subsequently. 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, Cr. P. C. 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 these 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 also be an act reasonably connected with those duties in the sense that when the official is discharging or professing to discharge those duties, a reasonable person might assume that he could or might act in that way. That in our view is the sense in which the statements of the Privy Council in Gill's case viz., that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be understood." In Dilbar Husain v. Ch. Khurshid Ahmad, it was held by S. A. Rehman, C. J., as he then was, that Magistrate who flared up and filthily abused the complainant on the presentation of a transfer application could not avail of the protection of section 197, Cr. P. C. It was further held that the invocation of the protection in a particular case would depend upon the facts and circumstances of that case. It was further held that the criterion for determining whether an act was covered by the protective section was to see whether the act complained of was such as lay within the scope of the official duty of the person concerned. In other words, the test might w611 be whether the public servant if challenged could reasonably claim that what he did was done in virtue of his office.

10. Lastly I come to Muhammad Ismail and others v. The State and another, which is an elaborate judgment by Muhammad Hayat Junejo, J., wherein his Lordship has conducted a survey of almost the entire case‑law on the point. The basic authority in all such cases is H. H. B. Gill and another v. The King (A I R 1948 P C 128). Their Lordships of the Privy Council observed as follows :‑ "Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty. Thusa Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act nor does a Government Medical Officer act or purports to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged can reasonably claim that what he does, he does in virtue of his office." This view was further elaborated by the Supreme Court in Syed Ahmad v. The State, referred to earlier.

11. Having considered the facts and circumstances of the instant case in the light of the principles laid down in the aforesaid authorities, I am of the view that ex‑hypothesi the petitioner and his co‑accused would be entitled to the protection claimed by them.

12. The other contention, that some of the alleged offences i.e. sections 323 and 355, P. P. C. were exclusively triable by a Conciliation Court under section 3(2) of the Conciliation Courts Act has however no substance, for the reasons firstly, that once a non‑scheduled offence is also alleged alongwith the scheduled offences, the exclusive jurisdiction of the Conciliation Court will be ousted and secondly the provisions invoked excluded the jurisdiction of the Conciliation Court in cases by or against public servants acting in discharge of their duties only in regard to civil matters. The new provision contained in section 2‑A by the Amending Ordinance XI of 1966 excludes the jurisdiction of the Conciliation Court in criminal cases against Government servants, which protection prima facie cannot be invoked by a Municipal Employee despite the application of Articles 97 and 98 of the Basic Democracies Order as a result of which he would be deemed to be a public servant but it is not the same thing as "Government servant".

13. Since, however, I am of the view that the petitioner had visited the premises of the respondent in a bona fide manner after he was clothed with proper authority, he would be entitled to the protection of section 127 of the Municipal Ordinance read with Articles 97 and 98 of the Basic Democracies Order referred to earlier, in so far as allegations under sections 148 and 447/149, P. P. C. are concerned and consequently the proceedings are quashed to that extent. As regards the allegations under A sections 323 and 355, P. P. C. etc., they pertain to subsequent developments at the spot, whose correctness or otherwise is a question of fact to be determined by evidence on the record. The proper procedure to be adopted by the Court in this regard is the one laid down in P L D 1958 S C (Pak.) 27 relied upon by both sides. This disposes of the petition. K. B. A. Proceedings partly quashed.