P L D 1979 Lahore 668 (PLP)

The actual incident regarding the alleged murder of Rana Muhammad Sadiq (deceased) was stated as follows : "That respondents Nos. 1 to 7 who had brought the complainant and the other persons above-mentioned to the vicinity of village Manawan, began to fire shots to harass and intimidate them and on the point of pistols and rifles, etc. they were required to disclose the whereabouts of Rana Muhammad Sadiq, the father of the complainant. The complainant under duress and immediate fear to his life, disclosed the whereabouts of his father on which respondent No. 1 directed respondents Nos. 2, 3, 4 and 5 to cause his immediate arrest and to produce him before him which was done by them within about an hour. . That after having brought the father of the complainant to a place near Pul Rajbah Shalamar, Jullo More Village Manawan at about 2 am., all the respondents fired at him and killed him on the spot within the view of the complainant and the persons afore-mentioned and still some other persons who had been attracted to the place of occurrence."

5. The Additional Sessions Judge, Lahore vide orders dated the 4th April, 1977 summoned the accused. On the 14th of July, 1977 the petitioner submitted an application before the trial Court for the dismissal of the case against him under section 265-K of the Code of Criminal Procedure, on account of lack of sanction required under section 197 of the Code of Criminal Procedure. The trial Court rejected this application vide order dated the 10th October, 1977 which is being impugned before me.

6. Mr. M. B. Zaman, learned counsel for the petitioner has argued that the question of sanction can be raised by the petitioner at any stage and the learned trial Court was duty bound to hold an inquiry into this aspect and record a finding on the question of applicability of section 197 of the Code of Criminal Procedure. It is contended that in case the trial Court reached a conclusion that section 197, Cr. P. C. was applicable to the facts of this case, it could not take cognizance of the case without a sanction. Dr. Khalid Ranjha, the learned counsel for the complainant contends that on the institution of the complaint, the learned Magistrate recorded the statement of the complainant and on the enforcement of the amendment in the Criminal Procedure Code, forwarded the case to the Court of Session for trial where the learned trial Court after examining the case, issued the process to the petitioner (accused) and framed a charge. This amounted to a finding after inquiry that section 197, Cr. P. C. was not attracted to the facts of this case. It is also contended that the learned trial Court has considered the question of applicability of section 197 of the Code of Criminal Procedure to the facts of this particular case and by the impugned order given a finding that the same is not attracted to the facts of this case. The learned counsel contends that no pre-trial is envisaged and this short point has to be judged on the basis of the allegations made by the prosecution and not on the basis of the ultimate defence of the accused. The learned counsel has referred to the complaint and other annexures to prove that on account of personal animus Rana Muhammad Sadiq was apprehended alive and murdered by the accused and a wholly false story of Police encounter had been set up. Following cases have been referred to by both the parties :- (1) Syed Ahmad v. The State P L D 1958 S C (Pak.) 27. (2) S. M. H. Rizvi v. Abdus Salam etc. P L D 1960 S C 358. (3) Iqbal Hussain v. The State 1970 S C M R 726. (4) Phanindra Chandra v. King P L D 1948 P C 273.?? (5) Ruken-ud-Din Bhuiyan v. The State P L D 1967 Dacca 281. (6) Muhammad Shahid v. The State P L D 1963 Dacca 413.

7. In Phanindra Chandra v. King P L D 1948 P C 273 it was observed : "A public servant can only be said to act or purport to act in the discharge of his official duty, if the act is such as to lie within the scope 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 challenge, can reasonably claim that what he does, he does in virtue of his office." In Syed Ahmad v. The State P L D 1958 S C (Pak.) 27, it was held : "That no sanction was required in respect of the charges of wrongful confinement, though sanction was necessary in respect of the charge of assault?????????In order to come to a conclusion on this point, the evidence recorded in the case is available, as for an ancillary or collateral purpose notwithstanding that the Court could not take cognizance of the offence without prior sanction of the prescribed authority." In Muhammad Shahid v. The State P L D 1963 Dacca 413, a Police Officer in the discharge of his duty took law into his own hands and punished the offender. The Division Bench observed :- "Public servant taking law into his own hands and punishing person for act of indiscretion committed by him lodging prosecution against public servant for such act, sanction under section 197, Cr. P. C. no necessary." In Ruken-ud-Din Bhulyan v. The State P L D 1967 Dacca 281, a D. B. judgment, it was held "Mere contention of the defence that alleged offence was committed while the accused was engaged in the discharge of his duty will not bring the case within the purview of section 197, Cr. P. C. and sanction for prosecution in such a case was not necessary." "It will, of course, be for the trial Court to decide as to whether the officer concerned was or was not acting in the discharge of his duties so as to bring him within the protection of the section ?????.... It is not necessary that every act must be within the precise powers vested in the officer but the act complained of must still be reasonably connected with the performance of his duties and must have been performed with no private axe to grind??????..It will be sufficient for us, therefore, to indicate that in the present case the Magistrate should have first taken evidence on this point and if he came to the view that the appellant was acting in the discharge of his duties then he should have stopped the hearing and called for the sanction."

8. From the above-cited case-law it is clear that the question of sanction can be raised at any stage of the proceedings and when raised the Court has to advert to the proposition and apply its mind and record a finding on this question. Unless a finding was recorded that section 197 of the Code of Criminal Procedure was not applicable, the Court could not proceed with the case further. What will be the nature; extent or scope of the inquiry, will depend upon the particular circumstances of each case in the context of the allegations, the plea and the nature of the quality and quantum of the matter being offered by the parties in support of their respective contentions. The examining of the witnesses or the record for the purpose of determining the question of sanction, will again be a matter within the judgment and discretion of the Court concerned. If the evidence has already been recorded that will be taken into consideration and if no evidence has been recorded, the Court in its discretion may examine the witnesses or the documents placed on record, relevant to this limited question. It is not envisaged that the accused may lead his defence evidence first and stiffle the prosecution, nor is a sort of a pre-trial envisaged. Iqbal Hussain's case cited above by the learned counsel for the petitioner is distinguishable on facts from the case in hand. In the cited case the presence of the accused on checking duty was accepted by the prosecution itself and the occurrence had taken place admittedly during the course of that checking assignment, whereas In the case In hand the accusation is that Rana Muhammad Sadiq was captured alive from a different place and later on murdered at Rajbah Shalamar Bridge and an entirely bogus proceedings were drawn to show it as a police encounter. In this regard the learned counsel for the respondent had attempted to draw support from the post-mortem report as well, while the learned counsel for the petitioner desired to refer me to case and daily diaries, but in this revision I am not recording any finding on merits. I have perused the impugned order. I do not agree with the reasoning) that the objection could not be taken at a later stage, yet a bare reading shows that the learned Sessions Judge has applied his mind to the question, considered the accusations made in the complaint, contents of the inquiry report referred to by the petitioner and prima facie, reached the conclusion that the accusation being one of an outright murder, rejected the objection of requiring a sanction under section 197 of the Code of Criminal Procedure. In determining the question of requirement of sanction against the petitioner, the learned Sessions Court appears to have rightly drawn support from the underquoted observation of their Lordships in Iqbal Hussain's case :- "But the act complained of must still be reasonably connected with the performance of his duties and must have been performed with no private axe to grind." The Privy Council case of Phanindra Chandra v. King is in line with this view, and my humble opinion also is that the question of sanction under section 197 of the Code of Criminal Procedure is attracted only when the accusation itself states that the offence has been committed by the accused while acting or purporting to act in discharge of his official duty or that the act complained of was reasonably connected with the performance o his duty and was not performed with any private axe to grind. If, on the other hand, the plea of the petitioner were to be accepted and evidence first recorded on his behalf that the deceased had died in the Police encounter that would amount to judging the prosecution case of murder even without recording the prosecution evidence. This revision petition is accordingly rejected. M. A. K.????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition rejected.