P L D 1970 Karachi 261 (PLP)

"Notwithstanding any provision to the contrary in any service rule for the time being in force in the Province or any part thereof, the authorities for purposes of appointment, appeals, punishments, transfer and controlling travelling allowance, in respect of each person holding post mentioned in column 2 of the Schedule annexed herewith shall be such as are specified against the post of such person in columns 3 to 8 of the said Schedule". Entries at Serial Nos. 8, 9, 10 and 11 in the Schedule show that the Assistant Inspector‑General of Police or the Superintendent of Police would be the appointing as well as dismissing authority for Sub‑Inspectors, Assistant Sub‑Inspectors, Head Constables and Constables in the Police Department. Even appeals against the orders of their dismissal would lie to the Additional Inspector: General of Police, who is an authority subordinate to the Provincial Government.

15. This being the position, a learned Judge of this Court Rahim Bux Munshi, J., while considering a similar case namely, Yaqub v. The Crown (P L D 1958 Kar. 483), held that an Assistant Sub‑Inspector of Police and a Police Constable do not belong to the class of public' servant contemplated under section 197, Cr. P. C. The learned Judge, however, gave no reasons for his conclusion which was stated in the following terms: This section provides for sanction for prosecution of a particular class of public servants. The appellants obviously do not belong to that class. Therefore, no sanction in their case was required by law. Attention of Faruqui, J., was not invited to this judgment of this Court while his Lordship was considering the case of Zaheer AU v. The State relied upon before him by the learned counsel for the appellant. Mr. Sami Ahmed, the learned counsel for the appellants has drawn my attention to Articles 174, 176 and 178 of the 1962 Constitution and urged on the basis thereof that the position in this respect has changed after this Constitution came into force. I do not find any substance in this contention of the learned counsel as there is nothing in these articles to justify the inference drawn by the learned counsel. It is accordingly, clear that section 197, Cr. P. C. does not apply to offences alleged to have been committed by public servant who are removable from office by some authority subordinate to the Central or the o Provincial Governments, although such authority may only be acting in the exercise of a power delegated by the concerned Government. In these circumstances I would hold that Muhammad Ismail, A.S.I.P. as well as police constables Idris and Sultan Ali could be prosecuted without the requisite sanction required under the provisions of section 197, Cr. P. C.

16. I would now consider the other question, namely, whether the police officers involved in this case could be said to have been acting or purporting to act in the discharge of their E official duties. In this connection Mr. Sami Ahmed, has relied on the authority of tire Supreme Court, namay, Matiur Rehman Dewan v. The State (P L D 1958 S C (Pak.)).

17. The words "act done or purporting to be done in execu tion of duty as servant of the Crown" appearing in section 270(1) of the Government of India Act, 1935, were interpreted by the Federal Court of India in the case of Dr. Hort Ram Singh v. Emperor ((3) A I R 1929 B C 43), wherein it was held that when a public servant simply embazzles some property entrusted to him and thereby commits a criminal breach of trust under section 409, he is not doing an act nor even purports to do an act in execution of his duty. This decision was approved by their Lordships of the Privy Council in the case of H. H. B. Gill and another v. The King (P L D 1958 S C (Pak.) 27), where it was observed that the words "in respect of any actor act purporting to be done in the execution of his duty" used in section 270 of the Government of India Act, 1935, appeared to them to have precisely the same connotation as the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" in section 197, subsection (1), Cr. P. C. Their Lordships proceeded to observe as follows: "In the first place their Lordships find it impossible at least in relation to an offence of this character to distinguish between section 270 and section

197. The words in section 270 in respect of any act done or purporting to be done in the execution of his duty as a servant of the crown appears to them to have precisely the same connotation as the words in section 197(1) any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. It is idle to speculate why a change of language was made. But, if a temporal meaning is not given, as in their Lordships' vies 4 clearly should not be given, to the words in section 197, `while acting, etc.' it is in their opinion impossible to differentiate between the two sections. In the consideration of section 197, much assistance is to be derived from the judgment of the Federal Court in (1939 F C R 159) and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar. J. 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 stops of his official duty. Thus a 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 purport 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 doss, he does in virtue of his office."

18. This statement of the Privy Council was elucidated by our Supreme Court in the case of Syed Ahmed v. The State (P L D 1958 S C (Pak.) 27), wherein it was observed as follows:‑ 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. a valid test might be that the act alleged against the public servant should lie within the scope of his official duty, and that be 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 (75 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 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 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 vies is the sense in which the statements of the Privy Council in Gill's case vie., that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be understood." Accused Syed Ahmed in this case was District Traffic Superintendent of the East Bengal Railway. He was alleged to have used foul words of abase towards complainant Muhammad Yaqub, who was his direct subordinate working as crew‑in-charge on the same railway and also assaulted him and thereafter wrongfully confined him. Their Lordships proceeded to observe as follows: "We observe that the Courts below have consistently emphasized the assault as being no part of the duty of the accused person in the case, and therefore, they have held that section 197 of the Cr. P. C. does not apply to the case. Our view is that the assault and hurt which are alleged are of a minor nature, and are connected directly, and inseparably with the discharge of the accused's duty, which was that of super vising the performance of his duties by the complainant Muhammad Yaqub. The facts in the complainant seem clearly to show that the accused was greatly displeased and provoked by the slowness and inefficiency which Muhammad Yaqub was displaying in dealing with the several passengers who were brought to him by, or in the presence of, the accused. There is no indication that the accused bore any enmity towards the complainant. In holding to this effect, we must not be understood to approve, in any way, of the conduct of officers who, while correcting their subordinates is regard to their duties, add force to the lesson by a slap or other form of slight personal violence. The practice is cruel and, at the same time, degrading, but we have no reason to think that it is widespread. Should it ever become so, a ready check is available in the lower of sanctioning prosecutions conferred by section 197, Cr. P. C. But it seems to us to be difficult to say fn respect of the charges of wrongful restraint and confinement, which pima facie do not appear to be wholly false or grossly exaggerated, that the accused could reasonably claim that he acted in the discharge of his official duty when he ordered the Station Master to put Muhammad Yaqub under lock and key. The Station Master obeyed the direction, by keeping Muhammad Yaqub under detention though apparently he was not locked up. We do not see how the appellant can claim that he gave this order in virtue of his office. Consequently, we consider that the charges under sections 341 and 342 of the P. P. C. are not such as require the sanction of the appropriate Government before they can be proceeded with." Their Lordships in this case were considering the case of assault by a superior officer on his subordinate on account of slowness and inefficiency of the latter, as regards Government work. The accused did not have any enmity with the complainant nor did he have any axe of his own to grind in assaulting the complainant. It was on account of these reasons that their Lordships held that the assault and hurt which were of a minor nature, were connected directly and inseparably with the discharge of the accused's duty which was that of supervising the performance of duties by the complainant. It was in the background of these facts that the Supreme Court was of the opinion that on the charge of assault sanction under section 197, Cr. P. C. was necessary; but in spite of these circumstances their Lordships held that accused could not claim that he wrongfully confined the complainant in the discharge of his official duties.

19. That the case of a superior officer assaulting his subordinate on account of slowness or inefficiency is on a different footing than that of an officer misbehaving with a member of the public can be seen from the following observations from a later authority of the Supreme Court in the case of S.M.H. Rizvi v. Abdus Salam and another (P L D 1960 S C 354) :‑ "As this Court observed in its judgment in the case of Syed Ahmad, it must not be thought that thereby judicial approval is being given to any practice of superior officers assaulting their subordinates on every occasion that they find them guilty of inefficiency. That is a degrading form of behavior, and is calculated to destroy rather than to preserve discipline. Should the practice begin to be wide spread, the Government, which has the over‑all control in almost all respects, over the behaviour of its servants in any Department, have ample power to check it either by departmental action, or by the method of sanctioning prosecution. The purpose of section 197, Cr. P. C. 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 1n 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 depart mental authority of the Government. Thus, if a member of the public suffers an injury at the hands of a public servant, and this need not necessarily be by violence, but is much more frequently the result of faulty judgment or even defective outlook in the exercise of powers, it is always possible for the Government to visit the offence of the public servant within its disciplinary power and at the same time to compensate the member of the public for his loss or damage. The case is even simpler where the parties are both employees in the same Department of the Government. There, unless the excess of behaviour be entirely outside the scope of the functions of the offending party, whether he be the superior or the subordinate the Government has complete authority to deal with the matter within its disciplinary power. 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 Government to the conduct of public servants. The limits of the applicability of such 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'." Their Lordships in this case were considering the case of an Executive Engineer in East Bengal Railway, who had assaulted his Establishment clerk. The absence of personal animosity was again emphasized together with the fact that the behaviour of the accused complained of was intended to act as a corrective for clerks who were working unmethodically.

20. I shall now consider the authority relied upon by Mr. Sami Ahmad, namely that of Matiur Rehman Dewan v. The State. In this case Matiur Rahman was an Inspector of Prices and Supplies and acts complained of arose directly from action taken by him in his official capacity with a view to prosecute the complainant for black‑marketing. Their Lordships took the view that the act of the accused in having a trap to catch the complainant for black‑marketing was a part of his duty and in that process if he recovered marked notes from his person it cannot be said that he was acting outside the scope of his authority. As regards the allegations of theft and assault their Lordships were of the opinion that the accusations of theft were left in a state of doubt, as the following observation on page 24 of the judgment would show:‑ It should be mentioned here that while in the complaint it had been alleged by Gopinath Pal that Matiar Rahman Dewan `hurled blows on his nose and face and broke away the spectacles in his eyes', the evidence produced in the preliminary enquiry tended to show that the assault was by no means so severe. Even Gopinath Pal himself when deposing prior to the issue of summons was only able to allege a single blow, but two of his witnesses Ali Ahmed and Dr. M. A. Ahmed merely said that Gopinath Pal was assaulted and his spectacles were broken, while Dr. M. A. Hussain said that Matiar Rahman Dewan and a constable gave pushes to Gopinath Pal and his spectacles fell down. The evidence was also discrepant as to the allegation of theft. While Copinath Pal said he handed over eight Rs. 1C0.00 notes, and only seven were entered in the memorandum prepared on the spot, one of his witnesses said be counted up to six notes only. As we have held in the case of Sled Ahmad P L D 1958 S C (Pak.) 27 decided today, this evidence is admissible for the ancillary purpose of considering whether the case fall under section 197, Cr. P. C. We conclude that the violence offered by Matiar Rahman Dewan to Gopinath was of a comparatively minor type, and that the accusation of theft was left in a state of doubt.

21. Considering the evidence in the present case I find that the allegations of dacoity, assault and wrongful confinement have been supported by as many as six witnesses of whom three are completely independent and disinterested. The allegations are also that Muhammad Ismail had come to the house of the com plainant to extort a bribe arid for that purpose he slapped the complainant and arrested him even after the order of the Sessions Court whereby anticipatory bail was granted to the complainant, was shown to him. The appellant thereafter took away 8 heads of buffaloes and also tied up the complainant and his relations and thereafter confined them in the police lock‑up for more than 14 hours. In view of the nature of the allegations as well as the evidence led in support thereof, the appellants cannot contend that what they did was in the purported discharge of their duties, as the official status of the appellants in this case furnished only the occasion or opportunity for these offences.

22. It has been held in several cases that sanction under section 197, Cr. P. C. would not be necessary for prosecution of a public servant for offences similar to those in the present case. It may with advantage refer to some of them.

23. In Sakuntala Bai v. Venkatakrishna Reddi, one Sakuntala Bai travelled in a, bus from Pondichery to Guddalore. When the bus stopped at Reddichavadi Customs Chouki for inspection by the customs authorities, accused Venkatakrishna Reddi called the complainant and asked her to remove the gold bangles and the gold `golusu' worn by her. On her refusal to do so, the accused is said to have abused her and also assaulted her by giving a slap on her face. He thereafter, removed the gold bangles and `golusu' from her hands and detained her in the Chouki till 8‑15 p.m. She was, however, released after she paid a fine of Rs. 1,000.00. She filed a complaint before a Magistrate 9 days after this occurrence. A preliminary objection was taken by the accused and it was contended that he could not be prosecuted by the District Magistrate as the requisite sanction under section 197, Cr. P. C. had not been obtained. This contention found favour with the District Magistrate with the result that the complaint was dismissed and the accused was discharged. On a revision petition being filed by the complainant in the Madras High Court, it was held by Ramaswamy, J., that the act of beating the com plainant was not an instance of "an act done or purporting toe done in execution of duty as a servant of the Crown". In the same case it was further observed as follows:‑ "A prosecution for an offence arising out of the abuse of official position by an act not purporting to be official did not require sanction under section 197, Cr. P. C."

24. In Aminul Haque v. Abdul Wahab alias Wahab Mia (P L D 1956 Dacca 250), a Division Bench of the Dacca High Court held that a Sub- Inspector of Police charged with abetment of dacoity and arson cannot claim that he did this in virtue of his office.

25. In A. K M. Reza v. The State (P L D 1958 Dacca 111), the accused a Sub- Inspector and two constables of the police force went to the house of a villager in connection with a case of theft in order to seize the stolen property, but in the process they beat the complainant. It was held that what the accused did had no connection with the discharge of their official duty and sanction under section 197, Cr. P. C. for the prosecution of the accused was not at all necessary.

26. In yet another Division Bench case of the Dacca High Court, namely, Muhammad Shahid and another v. The State (P L D 1963 Dacca 413), it was held that no sanction under section 197, Cr. P. C. was necessary where certain police officers in their anxiety to recover a Rs. 100.00 G. C. Note which was being smuggled out of Pakistan and was, thereafter swallowed by the smuggler, cruelly beat the smuggler thereby causing his death. I cannot resist the temptation of quoting the following passage from the judgment of Sattar, J. as his Lordship then was: An officer to be worth his salt is expected to act strictly in discharge of his duties and has a right to do so but he must act within the bounds of the law. He cannot, however, claim to act tyranically even in discharge of his official duties. To concede such a right would bring about disorder where order should be the goal of everybody. If the deceased was trying to smuggle Pak‑currency out of this country, Hedayaetullah and Shahid had every right to proceed against him according to law and see teat the penalty provided in the law was meted out to him. They had, however, no right to take the law into their own hands and punish the offender according to their liking in disregard of the provisions of law. Although these observations were not in regard to the point of sanction under section 197, Cr. P. C. they are very much relevant to the facts of the present case.

27. Lastly I would refer to one more Division Bench case of the same High Court, namely, Rokunuddin Bhuiyan and others v. The State (P L D 1967 Dacca 281), wherein their Lordships after referring to the Supreme Court authority of Syed Ahmed v. The State; A. K. M. Reza and others v. The State and the case of Amrik Singh v. State of Pepsu (P L D 1956 S C (Ind.). 191) went on to observe as follows:‑ Section 197, Cr. P. C. applies to a case where the offence with which the accused is charged is alleged to have been com mitted while acting or purporting to action the discharge of his official function. It has no relation with the defence taken in the case. In a case of this nature defence generally takes shelter under a plea that a trial without the requisite sanction is invalid and without jurisdiction. The mere fact that the defence raised the contention in the present case that the appellants were engaged in the discharge of their official duty and arrested one man found carrying a bag of paddy at night and that the occurrence took place when the companions of the arrested man tried to snatch him away from the custody of the appellants who are police constables in uniform will not bring the case within the purview of section 197, Cr.P.C. having regard to the language of the section itself. If the defence case on merits is accepted by the Court the appellants will be held not guilty of the offence for which they have been convicted but the allegations made by the defence will not attract the operation of section 197, Cr. P. C.

28. In the present case the appellants behaved in a more ruthless, callous, high‑handed and disgraceful manner, than the accused in any of the cases cited above. I have, therefore, no hesitation .in repelling the contention of the learned counsel that the appellants were acting or purporting to act in the discharge of their official duties.

29. As I have come to the conclusion that the appellants in Criminal Appeal No. 79 of 1969 do not belong to the class of public servants for whose prosecution sanction under section 197, Cr. P. C. would be necessary; and further, that they could not be said to be acting or purporting to act in the discharge of their official duty, I shall now consider the two appeals on merits.

30. The prosecution case against the appellants rest on the direct ocular evidence of six witnesses, namely, complainant, Muhammad Pariai P. W. 1, Ali Nawaz P. W. 2, Ahmed Nawaz P. W. 3, Muhammad Shall P. W. 4, Hussain Shah, P. W. 5 and Loung P. W.

6. The evidence of P. Ws. 1 to 4 is substantially in accordance with the prosecution case as stated in para. 4 above, and therefore, need not be repeated. The evidence of P. Ws. 5 and 6 is also to the same effect except that they are not witnesses regarding the allegation relating to the demand and acceptance of the bribe.

31. The evidence of complainant Muhammad Parial has been vehemently criticized by the learned counsel for the appellants. Mr. Sami Ahmed has emphasized the fact that the complaint was filed several days after the alleged occurrence and therefore, the belated allegations made therein should not have been accepted by the trial Court. It is true that although the offence is alleged to have taken place on 23‑2‑1967, according to Muhammad Parial himself, complaint was, lodged in the Court of Additional. District Magistrate on 27‑2‑1967. The complaint, Exh. 6, has however, no; date thereon, nor is there any endorse ment by the concerned Magistrate or by ally one else to show as to when it was presented. The Court fee stamp affixed thereon showed that it was purchased by complainant Muhammad Parial on 27‑2‑1967. This is no doubt a circumstance which to some extent supports his assertion that he filed the complaint on 27‑2‑1967 but is by no means conclusive. As the statement of the complainant was recorded on 6‑3‑1967, the learned Sessions Judge gave the maximum benefit on this point to the accused and held that the complaint was filed on the same day. Assuming that this was so, I feel that this delay cannot by itself be fatal to the prosecution case. The complainant had to make allegations against the high handedness of the Assistant Sub‑Inspector of Police of him area. He could not therefore, walk to the Police Station and file the report. He must have run from pillar to post till he could finally file this complaint thereby‑incurring the wrath of the local police which could ruin not only him but his entire family. Moreover, delay is not very important in, this case as there is no dispute on this that at least four out of seven appellants in these two appeals did go to the house of the complainant and took away some buffuloes therefrom on 23rd February 1967.

32. Mr. Sami Ahmad the learned counsel for the appellants has attacked; the evidence of complainant on the ground that he has made several improvements in his evidence. The learned counsel has pointed out that so many details which are mentioned in his evidence do not find anyplace in the complaint or in his statement recorded under section 200; Cr.P.C. The learned counsel has also pointed out certain discrepancies between his various statements. In This connection it may, be mentioned that a complaint cannot usually be as exhaustive as evidence given at the trial. It is just a statement of allegations to set the law in motion; and failure to furnish details of the occurrence cannot by itself mean that what is stated at the trial subsequently is false or baseless. As regards the discrepancies, pointed out by the learned counsel, these are not really such as would throw doubt on the prosecution case. As observed by their Lordships of the Supreme Court in the case of Ghulam Safdar v. The State (P L D 1956 S C (Pak.) 126), the H fate of a original case does not depend upon the existence of vague discrepancies in the statements of witnesses.

34. The learned counsel has next contended that the complainant is a history sheeter and a convict and should not therefore, be believed. There is nothing on record to substantiate this allegation: The complainant himself denied the suggestion. No document etc., has been produced to show that the com plainant is a previous convict. Along with his, written statement appellant Muhammad Ismail produced a so‑called certificate supposed to have been signed by S.H.O. Moco showing that complainant was a history sheeter. This document has not been proved and the learned trial Judge was justified in not taking it into consideration. It was open to the appellants to have examined S.H.O. Itrat Hussain in their defence at the trial, but they failed to do so. I am, therefore, of the opinion that this certificate was rightly excluded from consideration by the learned Sessions Judge.

34. Mr. Sami Ahmad's next contention was that as P. W. 4 Ali Nawaz is the brother of the complainant and P. W. Ahmad Nawaz happens to be his son their testimony should also be discarded. It is well settled that mere relationship with the complainant is no ground for disbelieving a witness if his evidence otherwise appears to be true, I have carefully gone through the evidence of complainant Muhammad Parial and P. Ws. Ali Nawaz and Ahmad Nawaz and find no reasons for doubting the same. The learned trial Judge who saw the witnesses and observed their demeanour has also believed them and there are no reasons for me to take a view different from the one taken by him on this point.

35. The evidence of P. W. Muhammad Shafi who is an independent and disinterested witness has been criticized on the ground that he has made a lot of improvements. It is true that the witness has made improvements at the trial and deposed to things which he had not said in his earlier statements, but this fact alone would not be sufficient for discarding his testimony altogether. It is well settled that the maxim falsus in uno alsus in omnibus is not of universal application and should not be applied rigidly but each case should be considered on its own facts.

36. The testimony of all these four witnesses is also assailed on the ground that they had been disbelieved by the learned trial Judge himself on the point of demand as well as payment of the alleged bribe. The observations of the learned Judge in this respect, however, would show that he was not disbelieving the witnesses on this point. The learned Judge was influenced by the fact that he was not trying the case as a Special Judge and, therefore, could not go into the allegation of demand and acceptance of the bribe. This can be seen from the following passage appearing in para. 18 of his judgment which reads as follows: I would in these circumstances, therefore, hold that perhaps the allegation of payment of bribe to accused Muhammad Ismail may not be true. However, on this question I am giving benefit of doubt to accused Muhammad Ismail which would not mean that the P. Ws. are definitely making false statements and this final conclusion, I feel, also does not lie within my jurisdiction to arrive at as the offence of bribery, if any, cannot be tried by this Court.

37. The most important evidence against the appellants however is the direct testimony of Hussain Shah and Loung, who are both completely disinterested and independent witnesses, having no connection with the complainant nor any grievance or grudge against any of the seven appellants. Mr. Sami Ahmad, has, however, contended that their evidence should not be believed as they are neighbours of the complainant. It is an doubt correct that they live close to the house of the complainant, but only neighbours can be natural witnesses of an occurrence specially when the incident takes place at an old hour of the night as in this case. If the prosecution had examined witnesses from far flung areas the defence would have rightly complained that they were chance witnesses. As I have already stated, apart from being neighbours P. Ws. Hussain Shah and Loung have no other connection whatsoever with the complainant nor have they any enmity with any of the seven appellants. It is contended that there is discrepancy on the point of time when bribe was paid to Muhammad Ismail. P.W. Loung stated that this happened at 1030 a.m. whereas P. W. Ahmad Nawaz deposed that the bribe was paid at 3 p.m. Both the witnesses as well as others were unanimous that the complainant was released from police lock‑up at 3 p. m. As this happened after the bribe of Rs. 1,000.00 was paid one of the P.Ws. may have made a mistake on the question of time. This circumstance, however, in my view would not be sufficient to throw doubt on the testimony of an independent witness like P. W. Loung.

38. Against P. W. Hussain Shah, the learned counsel have not been able to allege anything except a suggestion that he was under the influence of one Ghulam Mustafa Jatoi, a Zamindar and Member of the National Assembly who may have asked him to give false evidence against the appellants. This suggestion was also made in cross‑examination to some other witnesses but apart from the word of the appellant there is no basis for this assertion. In this connection P. W. Hussain Shah stated as follows: Ghulam Mustafa Shah Jatoi is a Zamindar. He is an influential and a big person. I do not attend his calls. It is not a fact that Ghulam Mustafa Jatoi had called me and told me to give evidence in favour of the complainant as he desired. In reply to a similar question P. W. Loung also stated that it was not a fact that he was giving false evidence at the instance of Ghulam Mustafa Jatoi. There is absolutely no material on record to show any connection of Ghulam Mustafa Jatoi with any of the prosecution witnesses much less with P. Ws. Hussain Shah and Loung. There is also not even an iota of evidence to show that this Ghulam Mustafa Jatoi has any enmity with any of the appellants. P. W. Hussain Shah was cross‑examined at length but nothing has been brought out in his evidence to throw the slighter doubt or suspicion thereon. His evidence inspires implicit confidence and I consider the same to be sufficient to prove the allegations levelled against the appellants.

39. The learned counsel for the appellants also contended that all these witnesses were examined late in the preliminary enquiry. May be so, but the witnesses could have attended the Court only after summons were issued to them by the Magistrate. If the learned Magistrate conducting the preliminary enquiry fixed the hearing after sometime the witnesses could not be blamed for this delay much less disbelieved on this ground. Besides the names of all the six witnesses appear in the complaint. The complainant had left for Nawabshah immediately after his release on 23‑2‑1967 and it is not even contended that he contacted P.Ws. Muhammad Shafi, Hussain Shah or Loung before he lodged his complaint.

40. It was next contended that this evidence was rendered doubtful as one Fateh Ali Shah a deserter from the Army was also in the Police lock‑up at Moro and he ought to have been examined by the prosecution in this case. It is not proved that Fateh Ali Shah was in the lock‑up on 23‑2‑1967. The entry from the Roznamcha of the Moro police station produced by Muhammad Ismail with his written statement does not appear to be authentic. But even if this is assumed to be correct this Fateh Ali Shah may have been confined in a different cell or room and the prosecution witnesses may not have seen him. This contention accordingly does not appear to have much substance.

41. After having gone through the evidence of all the six witnesses examined by the prosecution in this case and having considered all the contentions raised by the learned counsel appearing in these appeals, I have no doubt whatsoever that the prosecution witnesses have given substantially true evidence and consequently their allegations against all the seven appellants have been fully established.

42. Four of the appellants, namely, Muhammad Ismail, Muhammad Idris, Sultan Ali and Haji Amir Bux admitted their presence at the scene of occurrence at the time of the incident. Appellant Muhammad Ismail further admits that he secured four heads of cattle including a young one from the cattle shed of the complainant and took the same with him to Moro Police Station from where he sent the cattle to the Pound the same day at 6‑30 p.m. According to this appellant, on 24‑2‑1967, one Abdul Hakim filed a report about the theft of his three buffaloes and a young one and as the description given by Abdul Hakim tallied with that of the buffaloes secured from the complainant on suspicion under section 550, Cr.P.C., these were given over to Abdul Hakim. I fail to understand as to how the learned Sessions Judge could have condoned this act on part of appellant Muhammad Ismail. All the witnesses when questioned on this point stated that the appellant had taken signature of Sobho (who was supposed to be a Mashir in respect of the seizure of the four buffaloes on a blank paper thereby proving, that this Mashir nama was prepared at the police station on that blank paper later in the day. The description of the cattle in this "Mashir nama" is shown as follows:‑ "(1) One buffaloe gray, white spot on forehead, having given five births, milch, worth Rs. 500.00. (2) One buffaloe black, crooked horned, milch worth Rs. 500. (3) One buffaloe black, crooked horned, a mark `K' on left leg worth Rs. 400." The mashirnarna also showed that in addition to three buffaloes, a young one buffaloe was also seized. This cattle although secured at 1 a.m. was sent to the Pound only at 6‑30 p.m. the next evening. Appellant Muhammad Ismail admittedly kept it with himself for over 17 hours but then sent it to Pound at the fag end of the day after the complainant was released. It appears that the sudden departure of the complainant to Nawabshah may have led the A. S. I. P. to suspect that there may be some trouble and he accordingly sent the cattle to the Pound as a safeguard against it. The next day i.e., on 24‑2‑1967, at 1 p.m. one Abdul Hakim mysteriously appeared at Moro police station to file a report regarding the theft which even according to this report took place about one month back. The description of cattle given in this "F. I. R." is as follows:‑ "(1) One buffaloe gray, a white spot on forehead, crooked horned, having given five births, milch valued at Rs. 600. (2) One buffaloe black crooked horns Rs. 500." (3) One buffaloe, black, crooked horns, having given two births with a female youngling behind it, bearing mark "K" on left leg, valued at Rs.

500. It will thus be seen that the description of the animals in these two documents and even the order in which they are mentioned is exactly similar. It appears that some one has copied the description from the mashirnama to the F.I.R. or vice‑a‑versa, of course with slight changes to ensure that the cat is not out of the bag. May be, both the documents were prepared at the same time. It is surprising as to how the A. S. I. P. knew at I a.m. on 23‑2‑1967, that on 24‑2‑1967 at 1 p.m. (exactly after 36 hours) one Abdul Hakim would come the police station and lodge a report about the theft of these very same four animals so that he should secure them in advance. Even an astrologer would not be able to predict a thing like that. There were 16 animals in the cattle shed of the complainant of which 8 were left behind, four were given to appellant Amir Bux while four were taken away by A.S.I.P. Can it possibly be just a coincidence that four animals (three buffaloes and a young one) of exactly the same description (including the number of births each animal had given) should be subsequently mentioned in the "F. I. R." filed by Abdul Hakim. The inference is obvious that this "F. I. R." was subsequently manouvered by the A. S. I. P. Muhammad Ismail so as to create a defence for himself on a charge of dacoity. The complainant had left for Nawabshah on 23‑2‑1967 and by next day appellant Muhammad Ismail must have sensed as to what was coming. It would not at all be difficult for an A. S. I. P. to get hold of some one like Abdul Hakim to claim the cattle and that is exactly what has happened. The illegal manner in which this cattle was subsequently handed over by the police to Abdul Hakim further supports this conclusion. As provided under section 523, Cr. P. C. the seizure of the cattle should have been forthwith reported to a Magistrate who alone could pass the order regarding its custody; but instead the Pound Munshi was immediately ordered to handover the same to Abdul Hakim as the letter produced by Muhammad Ismail himself would show. I consider all this as a cruel attempt on part of appellant Muhammad Ismail to get rid of the property which he had acquired by committing dacoity and thereby to create a false defence in his favour. This coupled with his admissions goes a long way in establishing his guilt.

43. The learned counsel for the appellants has argued that the custody of these four animals has not been given to com plainant Muhammad Parial right up to this day, which fact, according to him would show that this cattle really belonged to Abdul Hakim. While it may be correct that complainant has not been able to get the custody of these animals, may be because the case in respect thereof has not been decided so far, the fact remains, that it has not been as established either, that the cattle did not belong to complainant or that it belonged to Abdul Hakim. Indeed, if it had been so held, the complainant would have been convicted for being in possession of stolen property, but this has not happened. There is, accordingly, not much force in the contention of the learned counsel that the four heads of cattle were seized by appellant Muhammad Ismail under section 550, Cr.P.C. This was a pure and simple case of dacoity, extortion of a bribe and wrongful confinement, not to speak of gross contempt of the Sessions Court, Nawabshah. Appellant Muhammad Ismail has been rightly convicted under sections 395 and 342, P. P. C. and I have no hesitation in maintaining the said convictions. It is pity that on both these counts the sentences awarded by the learned Sessions Judge are illegal; but I shall refer to this aspect of the case later.

44. Mr. Haji Muhammad Memon, the learned counsel appearing for appellant No. 3, namely, Muhammad Idris, contended that even if the entire prosecution evidence is believed appellant Muhammad Idris would not be guilty of any offence as he did nothing except accompanying A.S.I.P. Muhammad Ismail which he was bound to do under section 29 of the Police Act. A perusal of this section would show that it provides penalty for violation of a lawful order of a superior officer. 1t cannot possibly be contended that a subordinate police officer is bound to obey the orders of his superior if the latter requires him to commit an offence of dacoity. Mr. Memon also invited my attention to section 79, P. P. C. and contended that appellant Muhammad Idris believed in good faith that what he was being asked to do was justified by law. Similar contentions were also raised by Mr. Sami Ahmed on behalf of appellant Sultan Ali. I regret I cannot subscribe to this proposition. Section 79, P. P. C. reads as follows:‑‑ Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. It would thus be seen that under this section mistake must be one of fact and not of law. A mistake of fact consists in an unconsciousness, ignorance, or forgetfulness of a fact, past or present, material to the transaction, or in the belief of the present existence of a thing material to the transaction, which does not exist, or in the past existence of a thing which has not existed. In this case the two appellants, namely, Muhammad Idris and Sultan Ali who were police constables had not only accompanied the A.S.I.P., appellant Muhammad Ismail, but one of them, namely, Sultan Ali actually tied up the complainant and both of them took the complainant, P.W. Ali Nawaz and his brother Shah Nawaz with them to the police station and locked them up. Even after they had seen the A. S. I. P. contemptuously throwing the order of the Sessions Court whereby these witnesses were granted anticipatory bail, the two police constables took away four heads of cattle to the police station; and that also after Haji Amir Bux had admittedly informed the S. H. O. that none of his buffaloes was found in the cattle shed of the complainant. The A. S. I. P. could not possibly have taken three persons and four heads of cattle all the way to the police station by himself without the assistance of his police constables. The question of good faith is also ways a question of fact to be determined in accordance with the proved facts and circum stances of each case. Even if these two appellants were ordered to do all these things by the A.S.I.P. that would be no defence, although it may be an extenuating circumstances as regards the question of sentence. It is well settled that obedience to an unlawful order does not exonerate or excuse a person who commits an offence as a consequence of such order. If the commands are obviously illegal as they were in this case an inferior would be justified in refusing to execute such commands. Even in case of a soldier the Penal Code does not recognize the duty of blind obedience to the commands of a superior as sufficient to exonerate him from the penal consequences of his act. I am, accordingly fully satisfied that both these appellants are guilty of the offences under sections 395 and 342, P. P. C. and have been rightly convicted by the learned Sessions Judge, although the sentences awarded to them also are illegal.

45. All the three appellants in Criminal Appeal No. 79 of 1969, have been sentenced to R. I. for two years each under section 342, P. P. C. This is obviously an illegal sentence as the maximum provided for this offence is R. I. for one year only, I would, accordingly reduce the sentences awarded to all the three appellants on this Count to R. I. for one year each.

46. The sentence of R. I. for three years under section 395, P. P. C. is also illegal. It is not disputed that A. S. I. P. Muhammad Ismail carried a revolver in his holster while Muhammad Idris and Sultan Ali were armed with 303 rifles. It is accordingly, admitted that all these three appellants were carrying deadly weapons. They were also charged for an offence under section 395/397, P. P. C. The learned Sessions Judge, however, relied on the case of Dilawar Khan v. The State (P L D 1958 Lah. 676), wherein Qhangez, J., held that "mere carrying of the weapon at the time of robbery does not fall" under section 397, P.P.C. The learned Judge nevertheless observed that if an offender displaying a deadly weapon threatened to use it his case would fall under section 397, P. P. C. A somewhat similar view was also expressed by Muhammad Shafi, J., in Alauddin v. The State (P L D 1960 Lah. 559). These cases are, however, no longer good law and the controversy on this point has been set at rest by the pronounce ment of our Supreme Court in the case of Ahmed v. The State (P L D 1963 S C 737). In this case it was not specified in evidence that the two appellants, namely, Ahmed and Noora whose appeals were before the Supreme Court had actually used their guns in the course of the incident. Notwithstanding this, their Lordships held that mere carrying of a deadly weapon was sufficient to attract the provisions of section 397, P. P. C. S. A. Rehman, J., as his Lordship then was, observed as follows:‑ It would, therefore, seem that even in the case of an attempted robbery or dacoity, the mere carrying of a deadly weapon by an offender would entail the consequence that in case of a conviction, he would receive a minimum sentence of seven years' rigorous imprisonment. This section provides the key to the correct interpretation of section 397, P. P. C. and we and disposed to agree with the view expressed in the case cited that the word `uses' occurring in section 397, P. P. C. should be construed broadly as including the case of carrying of a deadly weapon during the dacoity or robbery." In view of what has been stated above sentence of three years R. I. awarded to these appellants was obviously illegal as they were liable to a minimum punishment of imprisonment for seven years provided under section 397, P. P. C. 46‑A. Mr. Sami Ahmad contended that as these appellants were charged under section 395/397, P. P. C. but convicted only under section 395, P.P.C. this amounted to their acquittal in respect of the offence under section 397, P.P.C. and in the absence of an acquittal appeal by the State the appellants should not be convicted under section 395/397, P. P. C. on an application for enhancement of sentence having been filed by the State under section 439, Cr.P.C. In this connection I may mention that section 397, P. P. C. is merely a rider to sections 392 and 395, P: P. C. It does not create any sustentative offence; but merely regulates the punishment already provided for robbery or dacoity by fixing a minimum term of imprisonment when its commission has been attended with certain aggravating circum stances. I shall accordingly accept the application under section 439; Cr. P. C. filed by the State in this connection and enhance the sentences of Muhammad Ismail, Muhammad Idris and Sultan Ali to R. I. for seven years each under sec tion 395/397; P. P. C. I consider that even under section 395, P: P: C. a sentence of three years R. I. was grossly inadequate at least in respect of appellant Muhammad Ismail. Such barbarous acts by subordinate Police Officers rarely see the light of the clay as the victims are invariably conscious of the conse quences that a complaint against them may entail. When, however, such offences are fully established as in this case the offender deserves not only deterent but examplary punishment. The sentence of R. I. for seven years is, therefore, richly deserved by appellant Muhammad Ismail, who has behaved in a. most callous, high‑handed and disgraceful manner. I, however, feel sorry for appellants Muhammad Idris and Sultan Ali, who obeyed the illegal orders of their superior officer. The minimum sentence for an offence under section 395/397, P. P. C. is R. I. For seven years and any lesser sentence would be illegal. It is, however, for the Provincial Government to consider their case under section 401, Cr. P. C. if an application in this respect is made before them.

47. I shall now consider the case of appellants in Criminal Appeal No. 80 of 1969. Mr. Tufail Ali A. Rehman, the learned counsel appearing on behalf of these appellants has adopted most of the contentions raised by Mr. Sami Ahmed which have been already dealt with and therefore, need not be repeated. The learned counsel emphasized the enmity between the appellants and the com plainant over the filing of the theft case and contended that it would not be safe to base a conviction on the basis of this interested evidence. The allegations of dacoity against these appellants are, however, fully supported by P. Ws. Hussain Shah and Loung, who are not connected with the complainant nor have they enmity with these appellants. As I have already said I believe the evidence of these witnesses and consider that it does not stand in need of support from any other quarters.

48. Appellant Haji Amir Bux has admitted his presence at the time of occurrence. In the Court of the Committing Magistrate he admitted that on 23‑2‑1967 he bad accompanied A. S. I. P. Muhammad Ismail to the house of complainant and his brothers. What is more important is his statement that the police secured my stolen buffaloes from the house of complainant and his brothers". As provided under section 287, Cr. P. C. this statement has to be read as evidence in the case; and it shall consequently have the same effect as any other evidence adduced before the trial Judge. This position is not disputed by Mr. Tufail Ali A. Rehman, but the learned counsel contended that having regard to the statement of this appellant in the trial Court the admission before the committing Magistrate does not appear to have been correctly recorded. I have seen this statement in original. It is recorded by the learned Magistrate in English and there is also a Sindhi version thereof on record which is usually taken down by the Reader of the Magistrate. Both are identical, and both contain this admission. There is also a presumption under section 80 of the Evidence Act that this statement was correctly recorded. Appellant Amir Bux's version in the trial Court appears to be an after‑thought. These admissions of appellant Haji Amir Bux corroborate the direct evidence of prosecution witnesses to the effect that Haji Amir Bux and his companions took away four heads of cattle belonging to the complainant.

49. Another circumstance which goes a long way towards showing that appellant Haji Amir Bux and his companions, namely, Qamardin, Ghulam Kadir and Ismail Shah were acting in concert with A. S. I. P. Muhammad Ismail and his subordinates is the fact that all these four appellants in Criminal Appeal No. 80 of 1969 are the residents of Dadu District as their statements under section 342, Cr. P. C., would show and the theft of their cattle was also alleged to have taken place at their village, namely, Gul Muhammad Shahani in District Dadu. No report however was lodged with the local police regarding the alleged theft. Instead as the F. I. R. dated 7‑1‑1967 of Haji Amir Bux (page 54 of the paper book), produced by appellant Muhammad Ismail with his written statement, would show, it was lodged 3‑4 months after the alleged theft at Moro police station in a different district where appellant Muhammad Ismail happened to be employed as A.S.I.P. What is more, Haji Amir Bux in order to make out that his F.I.R. was genuine has falsely stated that he was a resident of Moro taluka in Nawabshah District. It appears that appellant Haji Amir Bux had joined hands with appellant Muhammad Ismail in order to harass and humiliate the complainant. However, they did not stop at that; but went to his house in a body of eight persons at 1 a.m. carrying a revolver, three '303 rifles and four lathis; and committed dacoity of his cattle. The complainant and his three brothers were arrested in spite of the order of bail passed by the Sessions Court in their favour, and they were all confined in police lock‑up for several hours till they satisfied the A.S.I.P's. lust for money. Out of the eight buffaloes taken away by the culprits, four were given to Haji Amir Bux and his companions while the remaining four were taken away by the A. S. I. P. and his subordinates for themselves. The subsequent F.I.R. of Abdul Hakim appears to be no more than a cock and a bull story as I have already explained above.

50. Taking into consideration all the direct as well as circumstantial evidence discussed above, there is no doubt in my mind that all the four appellants in Criminal Appeal No. 80 of 1969 have also been rightly convicted under section 395, P. P. C. The question of sentence, however, requires consider ation. The circumstances of the case show that these appellants were tempted to commit this daeoity by A. S. I. P. Muhammad Ismail who has played a leading part in this incident. Appellants Haji Amir Bux, Qamardin, Ghulam Kadir and Ismail Shah have, played a lessor role and consequently sentence of three years R. I. in their case appears to be excessive. I would, therefore, reduce the sentence awarded to all the four appellants from R. I. for three years to R.I. for one year each.

51. In the result Criminal Appeal No. 79 of 1969 is dismissed. The convictions of all the three appellants, namely, Muhammad Ismail, Muhammad idris and Sultan Ali under sections 342 and 395, P. P. C. are maintained but their sentence under section 342, P. P. C. is reduced to R.I. for one year each while the sentence of three years' R. I. under section 395, P. P. C. is enhanced to R.I. for seven years under section 395/397, P. P. C. Similarly, Criminal Appeal No. 80 of 1969 is dismissed and the convictions under section 395, P. P. C. of all the four appellants, namely, Haji Amir Bux, Qamardin, Ghulam Kadir and Ismail Shah are maintained. Their sentences, however, are reduced from R. I. for three years to R. I. for one year each. They are on bail and must surrender to serve out the unexpired portions of their sentences. With this modification both the appeals stand dismissed. K. B. A. Appeals dismissed Sentence enhanced.