1980 P Cr (PLP)

Date of hearing : 24th October, 1979. This is an application for revision by Mr. Mohsin Raza, Inspector, Customs and Excise Department, against the order of Mr. Mohammad Azam, Additional Sessions Judge, Peshawar dated the 15th July, 1979, whereby he reviewed his own earlier order dated the 21st April, 1979, and decided to proceed with the trial of the Sessions Cases under section 302 read with section 34 of the Pakistan Penal Code arising out of First Information Report No. 259 dated the 10th October, 1977, and private com plaint lodged by the husband of the deceased of the case in which Muhsin Raza applicant, Syed Ashiq Hussain and S. Muzamal Shah, all employees of the Customs and Excise Department, are the accused persons. The facts, so far it is necessary to state them for the purposes of deal ing with the points of law, are few and simple and may shortly be stated thus. On the 10th of October, 1977, a party consisting of three officials of the Customs and Excise Department, namely, Mohsin Raza applicant, Ashiq Hussain and Muzamal Shah, while in a Jeepster, was chasing a motor-car in the area of Mohalla Kakshal, Peshawar City, allegedly carrying smuggled goods, At that time, these officials were also firing at the car. It is said that Mst. Khadija who happened to be nearby was hit by one of the shots so fired, and died instantaneously. The matter was reported to the Police within 45 minutes of the occur rence. A case under section 302 read with section 34, Pakistan Penal Code, was registered. Out of the three officials, two, namely, Mohsin Raza and Ashiq Hussain Shah, were challaned to Court. The case was eventually sent to the Court of Session for the trial of the accused so challaned Muzamal Shah was not challaned by the Police. A complaint submitted against him by Dr. Bashir Ahmed, husband of Mst. Khadija deceased also came up before the Sessions Court for trial. Before the Additional Sessions Judge, -Peshawar to whom both the cases were entrusted for trial, Muhammad Shafiq Khan, Advocate, counsel for the accused, raised two objections. The first was that the accused was entitled to the benefit of section 217 of the Customs Act, 1969 (hereinafter referred to as the Act) which provides that "no suit, prosecution or other legal proceedings shall be against the Central Government or any public servant for anything which is done or intended to be done in good faith in pursuance of the said Act or the Rules". The second objection taken was that the sanction for the prosecution of the accused who were emp loyees of the Government had not been obtained as required by section 197 of the Criminal Procedure Code. After having considered the objections so raised, the Additional Sessions Judge, came to the conclusion that at that stage of the proceedings, the accused was not entitled to the benefit of section 217- of the Act. As regards the other objection, he was of the view that it was not without substance. He accordingly passed an order on the 21st April, 1979, directing the Deputy Superintendent. of Police,- Prosecution Branch, to obtain the necessary sanction and to re-submit the challan through the Ilaqa Magistrate within a period of one month. On the 28th May, 1979, Doctor Bashir Ahmed moved an application for the review of the abovementioned order. The application was vehe mently opposed by the accused persons but with no success. The applica tion was accepted by the Additional Sessions Judge, by his order dated 15th July, 1979, the operative part of which reads :-- "In view of the authorities cited above, I am also of the opinion, that the respondents do not fail under the category of public servants who are protected under section 197, Cr. P. C. and without causing any further delay in the disposal of the case. I set aside the impugned order dated 21st April, 1979, passed by this Court only in respect of the fact, that sanction tinder section 197, Cr. P. C. was required for the prosecution of the respondents. With the disposal of the review petition I propose to fix the case F.

1. R. No. 259 dated 10th October. 1977 under section 302/34, P P. C , State v. Muhsin Raza etc. and the Private Complaint No 32-6 of 1977, The Stare Muzamil Shah for trial. To cone up for the attendance of the parties on 19th July, 1979. This order is row being complained of before me by one of the accused persons, Mr. Mohsin Raza and Mohammad Shafiq Khan. Advocate on his behalf has urged (1) that the Additional Sessions Judge was not competent in law to review his earlier order dated the 21st April, 1979, (2) that the accused being public servant, no prosecution could .be launched against him without the previous sanction of the President, and (3) that the Additional Sessions Judge should have first taken evidence on the point as to whether the accused were at the relevant time engaged in the discharge of their duties, and whether they were or were not entitled 'to protection under section 217 of the Act. On the first point, Mohammad Shafiq Khan emphasised the fact that the Court once having passed the order dated 21st of April, 1979, on consideration of all the relevant facts, had become functus officio, and could not entertain a fresh prayer muchless could it review the order. He said that the impugned order whereby the earlier order had been reviewed was not sustainable in law and reliance is placed in this connection on section 369 of the Code of Criminal Procedure, which in substance, provides that no Court, other than a High Court, when it has signed .its judgment, shall alter or review the same, except as provided in sections 395 and 484 or to correct a clerical error. It is true that when a matter has been finally disposed of by a Court, the Court is, in the absence of statutory provision, functus officio and cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside. It is also true that the judgment of a criminal Court is final, as far as that Court is - concerned, and, on signing and pronouncing it, such Court becomes functus officio and has, therefore, no power to review, override, alter or interfere with the judgment except, where it is otherwise provided by the Criminal Procedure Code or by any other law for the time being in force; or for the purpose of correcting clerical errors. But it is equally true that section 369, relates only to the alteration o judgment. The word "judgment", for the purpose of the section, mean a decision in a trial which decides a case finally, so far as the Court trying the case is concerned and terminating in a conviction or acquittal Although the section refers in express terms to judgments under Chapter XXVI of the Code, still it is clear that the principles laid down therein apply also to final orders which are in the nature of judgments. The section, however, does not apply to orders which are not in the nature of judgments. An order in the nature of judgment is one which is passed on full enquiry and alter hearing both sides and determines the proceedings finally. To my mind, the order of the Additional Sessions Judge dated the 21st April, 1979, providing for obtaining the sanction of competent authority for the prosecution of the accused, was an interlocutory order to which the provisions of section 369, Criminal Procedure Code, would not, be applicable. There is nothing in the Code which forbids the Court to reconsider an order of this kind. In reviewing the said order, the Court did not commit any illegality whatsoever. 1t follows, therefore, that the first contention of the learned counsel for the petitioner is without any substance. Coming now to the second contention raised on behalf of the petitioner, it may at the outset be stated that section 197, Criminal Procedure Code, relates to an offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duties. The object of the section is to guard against vexatious proceedings against public servants and to secure the well considered opinion of a superior authority before their prosecution. Assuming that the defence of the accused is true, namely, that they were chasing a car carrying a smuggled goods, they had no justification for having resort to indiscrimi nate firing in a thickly populated Mohallah like Kakshal where without running the risk of hitting aft' innocent person, they could succeed in preventing the escape of the conveyance by other lawful means without firing at it. They took a great risk resulting in hitting an innocent lady who had nothing to do with the smuggled goods or the car in .which they were being carried. In such a situation, the action of the accused, prima -facie, will not fall within their legitimate functions and it would be rather difficult to hold that the offence was committed by them while acting or purporting to act in the discharge of the official duties. The illegal acts, it may be stated, cannot be said to have been committed under colour or in excess of the duty or authority as public servant. I would, therefore, hold that in the circumstances of this case, as set out above, a sanction under section 197, Criminal Procedure Code, would not be necessary. The third point taken by the learned counsel for the petitioner has al most been covered by my discussion on the second point. It may, however, be added that if the contention of the learned counsel is accepted on this point, it would result in the duplication of evidence, because almost the same evidence recorded in one matter will have to he repeated in the main case. It appears to me that it is the utmost endeavour of the accused to prolong the proceedings. I think it would serve the ends of justice if the evidence is recorded only once. The accused will have ample opportunity to support their plea by resorting to cross-examination on the prosecution witnesses and producing evidence in defence. This object, they can achieve in one and the same trial. In this state of affairs, I do not feel inclined to prolong the agony of the parties and would, therefore, hold that the taking of evidence on the point in question without proceeding with the trial of the case would not serve the ends of justice. I will for the reasons stated above, dismiss this application for revision. I would like to point out at the same time that the trial Judge, while deciding the case on merits, shall not take into consideration any of the observations made by me in this judgment. Petition dismissed.