P L D 1965 (W (PLP)

FARUQUI, J.‑

This is a revision application under section 436, Cr. P. C. by Syed Amir Abbas praying that this Court should order further inquiry in the complaint of the petitioner against the four respondents which was dismissed by the Magistrate under section 203, Cr. P. C. and which order in so far as it related to these respondents was upheld by the Additional Sessions Judge, Sukkur. The four respondents in this case are the District Magistrate, the Additional District Magistrate, the Superintendent of Police and the Deputy Superintendent all of Khairpur.

2. The material facts for the consideration of the contentions which were raised before us by the learned counsel for the petitioner in this revision petition are these. A complaint was filed by the present petitioner Syed Amir Abbas in the Court of the District Magistrate, Khairpur under sections 302, 307, 324, 325, 326, 459, 120‑B, 148, 149 and 295 read with sections 109, 116 and 166, P. P. C. This complaint was against 69 persons including the four public servants who are the respondents in this revision petition. The complaint was in respect of the rioting which took place in Therhi Village which is about 5 miles away from Khairpur on the Ashura day which fell on 3rd June 1963 and which had resulted in the loss of lives of a large number of persons. According to the complaint the first rioting took place at about noon time in village Therhi in which one Sahibdino Machi was killed, the Tazia was damaged and 16 other persons were injured by sharp weapons. After the riot the District Magistrate and Superintendent of Police arrived on the vardat and after saying a few softening words left for Khairpur to bring another Tazia from there saying that the Tazia procession would be taken out. That such a procession was brought from Khairpur but it was attacked by firearm, hatchets and spears in which a large number of the mourners were killed on the spot. The Imambara of Syed Mehdi Ali Shah was set on fire and he was also killed. The D. M. and the S. P. left for Khairpur and the A. D. M. and the Dy. S. P. with their small police force stayed away at some distance from the scene of offence. It was, therefore, alleged that these public servants had by their acts and omissions abetted the commission of the offences while they were on duty in their official capacity. They did not order firing to disperse the mob and none of the rioters were arrested or any weapon secured from them. Against the D. M. it was also alleged that he was in conspiracy with the Wahabis of Therhi and he and the S. P. had led the mourners to Therhi into a trap of death. This complaint was eventually transferred to the Court of the A. D. M. and Special Magistrate Mr. B. R. Minwalla who was appointed to try the cases arising out of the disturbances which took place on the Ashura day. When this complaint had been filed on 24‑6‑63 the police had not yet submitted their cases in respect of these incidents. This was done later on‑The learned A. D. M. on receipt of this complaint examined the complainant Amir Abbas and dismissed it by his order dated 2nd January 1964. With regard to the four public servants (the present respondents) who were amongst the 69 accused in the complaint, the learned A. D. M. observed as follows: "There is no allegation against the four public servants that they committed any particular offence or offences except that they conspired with alleged accused Nos. 1 to 65 who committed the various offences. Since I have already held that the offences were not committed in pursuance of any conspiracy no case for issue of process against the four public servants is made out."

3. It may be stated here that no sanction under section 197, Cr. P. C. for the prosecution of the aforesaid public servants had been obtained and the complainant himself in the written complaint had stated in para. 15 as follows: "That for compliance of section 197, Cr. P. C. the complainant has already applied for sanction for the prosecution of accused numbers (sic). It is, therefore, respectfully prayed that this Hon'ble Court may meanwhile be pleased to proceed against the rest of the accused for whose prosecution no sanction is required."

4. The complainant Syed Amir Abbas challenged the dismissal of his complaint by an application under section 436, Cr. P. C. in the Court of the Additional Sessions Judge, Sukkur. This petition was partly allowed inasmuch as the learned Additional Sessions Judge ordered further inquiry into the complaint against 44 persons from amongst the non‑official accused of this complaint. They were in all 65, but in the meantime two police challans had been filed in respect of the same incidents, in one of which there were 36 accused and in the other

21. The 44 persons in respect of whom the order for further inquiry was made were not amongst these 36 or 21 persons. As against this a revision petition was separately filed on behalf of these 44 persons which we have dismissed by a separate order. With regard to these four public servants the learned Additional. Sessions Judge observed that the situation that had arisen on that fateful day was not of their creation ; the D. M. may have had a good reason for not ordering police firing. He further observed that no inference of bad faith could be drawn against the D. M. for not ordering police firing and no inference can be drawn from this fact that he had a hand in the riot. He also observed that as for his prosecution under section 166, P. P. C. sanction was required, he accordingly held that the complaint against the four public servants had been rightly dismissed by the Magistrate. The complainant in this revision challenges the dismissal of his complaint against these four public servants and prays for further inquiry.

5. On behalf of the petitioner the case was argued before us by Mr. Micheal Havers Q. C. The learned counsel straightway stated before us that he was limiting his case for further inquiry only on the point of abetment by the public servants, namely the four respondents before us. He relied upon the third clause of section 107, P. P. C. whereby it is provided that "a person abets the doing of a thing, who intentionally aids, by any act or illegal omission, the doing of that thing". It was urged by him that these public servants had a duty to perform in which they utterly failed and by running away from the scene of rioting completely abandoned their obligation as to the discharge of their duty and thereby aided the commission of the various offences such as those mentioned in the complaint. He referred to sections 127, 149 and 151, Cr. P. C. in order to show that the public servants had various duties cast upon them by law to perform. Section 127 empowers any Magistrate or an officer in charge of police station to command an unlawful assembly to disperse. Section 149 empowers a police officer to interpose for the purposes of preventing the commission of any cognizable offence. Section 151 empowers the police officer knowing of a design to commit any cognizable offence to arrest a person so designing, without a warrant. Reliance was also placed by the learned counsel upon a judgment of the Bombay High Court reported in Queen‑Empress v. Latif Khan (I L R 20 Bom. 394), wherein it was held that the policeman who stands by acquiescing in an assault on a prisoner committed by another policeman for the purpose of extorting a confession, is guilty of abetment of an offence under section .330 of the Indian Penal Code. On the question of sanction as required by section 197, Cr. P. C. the learned counsel urged that the running away from the scene of offence, particularly of .the District Magistrate and the Superintendent of Police, was a complete abandonment of official duty and that being so it could. not be said that in so doing they were acting or purporting to act in the discharge of their official duty. The same argument, he urged, applied, though partly, to the case of the other two respondents, namely the A. D. M. and the Deputy Superintendent of Police. The learned counsel further urged that the protection provided by section 197, Cr. P. C. may be available to a public servant who may have committed some excess in the discharge of his official duty but that, it was pointed out, could not avail a public servant who ran away from the scene of rioting and completely abandoned his duty as a public servant.

6. We do not consider it necessary to go into the question whether upon the allegation of fact as narrated earlier a prima facie case of abetment has been made out because, in our opinion, this petition must be dismissed upon the ground of absence of sanction as required under section 197, Cr. P. C. Section 19.7 provides that "when any public servant (such as described in that section which description covers the respondents) is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except . with the previous sanction . . . . .". It is not disputed that the respondents' presence on the scene was in connection with their official duty. In fact, the accusation of abetment against them arises from the fact of their being public servants and their having failed to perform their duty as such. Surely, such an accusation could not have been made against a private person, namely that by not arresting the rioters or ordering the dispersal of the unlawful assembly he had committed an offence of abetment of murder or grievous hurt, etc. The alleged liability of the respondents thus clearly arises in relation to their capacity as public servants. The charge against them is that they omitted to do things which they should have done in the discharge of their official duty. Can it then be argued that though an act of commission, which ‑by the nature of its excess amounts to a criminal offence, may be covered by the bar of sanction applied under section 197, Cr. P. C. but when an offence is committed by an omission to do something that bar would disappear ? The answer, in our opinion, must obviously be in the negative. An offence may consist either of commission or of omission and if an offence is alleged to have committed either by commission or by omission while a public servant is acting or purporting to act in the discharge of hi official duty, section 197, Cr. P. C. equally applies in either case. If the public servants, in order to prevent or disperse the rioting or the commission of any other offence, had in this case Act high‑handedly and in excess of that power they could not have A been prosecuted without sanction. If, therefore, they failed to act effectively or act at all it would still be necessary to have a sanction before the cognizance of an offence was taken against them. Even if some of them ran away either out of cowardice of expediency the position would still be the same. Such an action, provided the circumstances justify, might be an eminently fit case for drastic departmental action, but in order that wrong‑doers ma be prosecuted the grant of sanction is a condition precedent.

7. It was held by the Supreme Court in the case of Syed Ahmad v. The State (P L D 1958 S C .(Pak.) 27) as follows:

"The rule that for the application of section 197, Criminal 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 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 (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 offence 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 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 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 statement of the Privy Council in Gill's case, viz., that the official should be able to claim reasonable that what he did, he did in virtue of his office, should be understood." The important question is, as was held by the Supreme Court, whether the act was such as was connected with the performance of the official duty. In the present case, the respondents were present on the scene in performance of their official duty. The omission to take action as it is urged they should have, or their withdrawal from the scene of offence, as it is alleged, was in our, opinion clearly connected with the discharge of their official duty. Failure to perform an official duty cannot, in our opinion, be said to be disconnected with the question of the performance of duty.

8. In view of what we have said we hold that in the absence of a sanction the respondents cannot be proceeded with for the alleged offence of abetment. We do not see, therefore, any justification for ordering further inquiry into the matter. No other point was pressed and for the reasons given the revision is dismissed. K.B.A. Petition dismissed.