1983 P Cr (PLP)

Abid Hassan Minto for Petitioners. Ch. Ziaullah for Respondent No.

1. S. D. Qureshi for A.-G. for the State. Date of hearing : 31st January, 1983. This is a reference under section 438, Cr. P. C. by the District Magistrate, Lahore, recommending the quashment of the order of the learned Assistant Commissioner (Saddar), Lahore, dated 25th September, 1972 summoning the petitioners/accused without prior sanction of the Govern ment and recommending that the Government be given a reasonable time to accord sanction for the prosecution of the petitioners/accused.

2. The brief facts of the case are that on 18th September, 1972, Sh. Akhtar Ali, respondent/complainant, filed a private complaint against Mr. Javed Ahmad Noel. I. T. O., and Mr. Abdul Malik I.T. O, peti tioners/accused, under section 323/352/504/506/34, P. P. C. alleging that the case of his company for assessment purpose was pending with Javed Ahmad Noel, I. T. O. petitioner/accused, which was transferred from him, as his relations with him (the complainant) were strained. There after, Abdul Malik, I. T. O., petitioner/accused, to whom the case was transferred, fixed the case for hearing on the 24th August, 1972. The complainant went to his office with his Accountant and Manager and the found Javed Ahmad Noel, I. T. O., petitioner/accused sitting with Abdul Malik I. T. O., petitioner/accused. The complainant was made to wait for about two hours, although the Income-tax Officer was free. At the start of the hearing. Mr. Javed Ahmad Noel, I. T. O., petitioner/accused, used filthy language against' the complainant. Abdul Malik, I. T. O., petitioner, /accused, repeated the same language and shouted that he was not prepared to hear the case and threw the file at the complainant's face which hit him. The complainant was then told to leave the office. There after, the complainant submitted a complaint to the Commissioner of Income-tax and lodged a report at the Police Post, but finding no redress, filed the private complaint.

3. After recording the preliminary evidence of the respondent/ complainant and two of his witnesses the Assistant Commissioner (Saddar), Lahore, summoned both the petitioners/accused under section 352/304, P. P. C. vide his order dated 25th August, 1972. Being aggrieved by the said order, the petitioners/accused filed a petition (Cr. M. 466-Q of 1972) in the High Court under section 561-A, Cr. P. C. for quashment of the same, which was dismissed by Mr. Justice Samdani on 20th March, 1974. Thereafter, on 17th September, 1974, the petitioners/accused filed an application before the trial Magistrate that the complaint should be dis missed for want of sanction. On 26th October, 1974, after hearing the arguments of both the parties, the trial Magistrate held that no sanction was required from the competent Authority, as he felt that the criminal acts committed by the petitioners/accused could not be connected with the normal performance of their duties and that it could not be presumed that they were purporting to act as officers when they did those acts, which were beyond their jurisdiction and also were unauthorised. Being aggriev ed by the said order, the petitioners/accused filed a revision petition before the District Magistrate, Lahore, who, after hearing both the parties and agreeing with the contentions of the petitioners/accused, transmitted the case to the High Court with the recommendation that the order of the trial Magistrate dated 25th September, 1972 summoning the petitioners, accused without prior sanction of the Government be set aside and that the Government tray be given a reasonable time to accord sanction to the prosecution or to record sanction to the prosecution or to proceed depart mentally in the case and the respondent/complainant may be directed to approach the Government accordingly. The said reference is now before me for disposal.

5. On behalf of the petitioners/accused, it is contended that the preliminary evidence of the respondent/complainant recorded in the inquiry not only established a prima facie case against the petitioners/accused under section 352/504, P. P. C., but also showed that when they committed the said offences they were acting or purporting to act in the discharge of their official duties and that, therefore, the sanction of the Government under section 197, Cr. P. C. was necessary in the case before the trial could proceed any further. In this connection, learned counsel for the petitioners; accused referred to Syed Ahmad v. The State (P L D 1958 S C (Pak.) 27) Matajog Dobey and others v. H. C. Bhari and others (P L D 1957 S C (Ind.) 160) and S. M. H. Rizvi v. Abdus Salam and another (PLD 1960SC 358).

6. On behalf of the respondent/complainant, it is contended that the petitioners/accused in respect of the acts alluded to them, were not acting or purporting to act in the due discharge of their officials duties and that, therefore, Government sanction was not required under section 197, Cr. P. C. Learned counsel for the respondent/complainant pointed out that the acts stated in the preliminary evidence recorded were not such as could be said as falling within the sphere of the duties normally performed by the petitioners/accused, nor could they be connected with the normal performance of their duties, nor could the petitioners/accused be presumed to be purporting to act in the course of their duties when doing such acts, which were both unauthorised and beyond their jurisdiction. Learned counsel cited. The State v. Zia-ur-Rehman and others (PLD 1973S C49). In the alter native, it is pleaded, on the principle laid down in Mushtaq Hussain Shah's ease (P L D 1981 S C 573), that the trial should be allowed to proceed and if at any later stage that the trial Magistrate considers that sanction is necessary he can request Government for the same.

7. I have heard the arguments of the learned counsel for the peti tioners/accused and the respondent/complainant and the State and have also perused the record. Learned counsel for the State supports the submissions made by the learned counsel for the petitioners/accused. The District Magistrate, Lahore, has rightly held that sanction in the instant case was necessary, as the evidence recorded in the inquiry revealed that the allege offences imputed could not be totally detached from the performance their official duties and that there was a reasonable connection between their actions and the discharge of their official functions. This view supported by Matajog Dobey and others v. H. C. Bhari and others to Syed Ahmad v. The State (P L D 1958 S C (Pak.) 27), it has also been laid down that since the commission of an offence can never be strictly said to be a part of the duty of an official, the scope of his duty, for the purposes of the protection afforded by section 197, Cr. P. C., must be interpreted in a sense wider than that covered by the range of his action, which generally he is authorised by the law to perform. The findings given by the learned District Magistrate, Lahore, in paras. 4 and 5 of his order, are therefore, legal and correct. As regards the alternative prayer made by the learned counsel for the respondent /complainant, the same cannot be accepted. The preliminary evidence of the respondent/complainant has already been recorded in this case. According to the learned District Magistrate, Lahore, the same does make out a case for sanction. It is this very evidence on which the peti tioners accused rely for their submissions. They do not want to produce any defence to improve upon their case and for this I have the statement of their learned counsel. Mushtaq Hussain Shah's case is based on Syed Ahmad's case (P L D 1958 S C (Pak.) 27), in which Cornelius, J. (as he then was) adopted the view of Lodge J. in Pollard's case (A I R 1943 Cal. 594) that a Court trying or inquiring into an alleged offence can drop the proceedings as soon as it is satisfied that the offence was committed whilst the officer was acting or purporting to act in the discharge of his duties In the instant case, the preliminary evidence recorded in the inquiry reveals the reasonable connection between the petitioners' actions and the discharge of their official functions. Nothing further needs to be done by the petitioners/accused to improve their case. In these circumstances, the trial Magistrate should now call for the sanction from the appropriate Government. In Mushtaq Hussain Shah's case (P L D 1981 S. C. 573), the learned Sessions Judge, who conducted the inquiry, had held that the Police Officers had acted outside the course of their official duties. It was urged that an earlier Magistrate, who had conducted a judicial inquiry under section 174, Cr. P. C., had held that the accused had murdered the deceased in a police encounter and that, therefore, the evidence in the inquiry showed that the accused had acted or purported to act in the discharge of their duties. The learned Judges of the Supreme Court, however, did not accept this submission, as the report of the judicial inquiry had not been proved in the case. It was thus that the learned Judges directed that the trial should be allowed to proceed and if it, appeared at any stage that sanction was necessary, the proceeding could be stopped forthwith, in order to await the accord of the sanction. In the instant case, the evidence in the preliminary inquiry does show the need for a sanction. This submission, therefore, of the learned counsel for the respondent/complainant, is rejected. No interference in the revisional jurisdiction is required.

6. For the foregoing reasons, this reference is accepted and the order of the Assistant Commissioner, (Saddar), Lahore, dated 25th September, 1972 is set aside. The trial Magistrate shall now call upon the appropriate Government to accord sanction for the prosecution of the petitioners/accused and direct the respondent/complainant to approach Government in this respect and to then proceed with the case, after such sanction is received. Reference accepted.