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Constitutional Petition No. D‑263 of 1982, decided on 3rd May, 1982

‑‑ Principle of res judicata, application of ‑‑ Parties as well as reliefs sought in previous petition pressed in service for attracting principle of res judicata, different from those of present petition‑‑ Respondents held, could not invoke principle of res judicata praying for dismissal of petition in circumstances. ‑[Res judicata).

Wajdad and 2 others v. Mir Muhammad Baluch and another P L D 1982 Quetta 31 ref:

‑‑ Locus standi, determination of‑A person aggrieved by order made or action taken by Police, held, can agitate matter in Court of competent jurisdiction by filing a direct complaint.‑[Locus standi‑Complaint].

‑‑ R. 14.7 read with West Pakistan Government Servants (Conduct) Rules, r. 27‑Public acts and character, vindication of‑Petitioner dealt with case in his capacity as a Police Officer but case later on investigated by some other Poi ice‑Officers and ultimately dropped and shown as disposed of under S. 163/173, Cr. P. C., but being dissatisfied with manner of disposal of case petitioner taking matter with higher authorities and eventually filing a direct complaint in Court‑Government Servant not being permitted to have recourse to any Court for vindication of his public acts and character except with prior permission of Government, direct complaint filed:, by petitioner, held, unauthorized and without legal backing, in circumstances.

Government Servant cannot have recourse to any Court for the vindication of his public acts and character except with prior permission of the Government. He is however free to defend his private acts and character. It is true that a report/complaint about commission of a criminal offence, not reportable by any specified person under the law, can be lodged even by a person who is not directly or personally concerned. But in the instant case the position was entirely different in that the peti tioner who was associated with the case as a Police Officer could not turn round and assume the role of private individual for the purpose of filing a direct complaint. In such an eventuality on one hand he would be bound by the orders passed by his superiors, notwithstanding his personal disliking, while on the other band he would be opposing the same orders. If a police officer is allowed free hand in this manner, it will seriously impair the service discipline, entailing disastrous consequences. Indeed the service discipline is enforced, more vigorously in the Police Depart ment than any other Government Department.

‑‑ S. 4 (1) (h)‑--"Complaint" definition of‑Petitioner dealing with case in capacity of a Police Officer but case subsequently investigated by some other Police Officer and ultimately dropped and shown as disposed of under S. 163/173, Cr. P. C.‑Petitioner, however, filing direct complaint in Court agitating same matter‑Petitioner, held, could not deal with case in double capacity at early stage as a Police Officer and at later stage as a private individual‑Direct complaint filed by petitioner, held further nothing but a report from a Police Officer and as such excluded from definition of "complaint" and hence could not be entertained as direct complaint, in circumstances:‑[Complaint‑Words and phrases].

Muhammad Hayat Junejo and Gul Zaman Khan for Petitioner.

Khalid M. Ishaq and Raja Haq Nawaz for Respondents Nos. 2 and 3.

M. I. Memon, Addl. A.‑G. for the State.

Date of hearing : 3rd May. 1982.

‑This is a writ petition under Article 9 of the Provisional Constitution Order, 1981. As disclosed in the petition, the petitioner Khalid Taqi Khan was working as A. S. I at Police Station, Ferozeabad, Karachi when ail the Police Stations including that of Ferozeabad within the District (East) Karachi were required to arrange police pickets at places believe to be frequented by the notorious criminal Suleman Buledi, in order to apprehend him. On 17th August, 1979 the petitioner accompanied by two police constables : namely Nadir Ali and Muhammad Ramzan proceeded to the Nursery Super Market and Medical Store, one of the picket points. In the next morning, at about 1 a.m., the petitioner saw respondent No. 2 who happens to be the proprietor of the aforesaid store handing a bottle of whisky (Jhony Walker‑Foreign make) to the respondent No. 3, the salesman of store, for delivery it to Afzal son of Abdul Rehman and Mir Javed Zahri son of Imam Bux Zahri sitting in a car, parked in front of the store. However, before the bottle was passed on to the occupants of the car, the petitioner swiftly intervened and arrested both the proprietor and the salesman (respondents Nos. s2 and 3) under a mashirnama prepared in presence of the witnesses. Some foreign currency was also recovered from personal search of the respondents. The petitioner registered a case at the Police Station (vide Crime No. 275/79) under section 3/4 of Prohibition (Enforcement of Hudood) Order, 1979. The case was investigated by A. S. I Khadim Hussain and the investigation was verified by the S. H. O. Ghulam Samdani and P. D. S. P. and was approved by S. D. P. O., Ferozeabad. Somehow the case was ultimately dropped and shown as disposed of under section 163/173, Cr. P. C. under the orders of the Martial Law Authorities.

Being dissatisfied with the manner of disposal of the case, the petitioner took up the matter with higher authorities but with no result. He then filed a direct complaint in Court, which was however, dismissed by the A. C. M. VI (East) by order dated 3rd October, 1981. The revision preferred by him from this order also failed vide order dated 2nd February, 1982 of the IInd Additional Sessions Judge, Karachi. Thsse two orders have been impugned in this petition.

Meanwhile, the petitioner alongwith others has been involved in a corruption case, as a sequel of the cancellation of the criminal case registered against respondents Nos. 2 and 3 as stated above. The petitioner has made a separate application for staying the proceedings in the corruption case until disposal of this petition.

The learned counsel of both the parties were heard at great length. In course of their arguments the points that emerged for consideration may be summarised as under : ‑

(i) the petition's earlier petition No. 2/82 in respect of the same cause of action having been dismissed as withdrawn, this petition is barred by res judicata.

(ii) the aforesaid criminal case having been dropped by the order of the S. P. who is Superior Officer of the petitioner, the order is binding on the latter.

(iii) the criminal case against the respondents Nos'. 2 and 3 was dropped under the orders of Martial Law Authorities, therefore, the validity of the action cannot be questioned.

It was vigorously argued on behalf of the respondents that in view of the withdrawal of the earlier petition, this petition is not competent. In this connection reference was made to the case of Wajdad and two others v. Mir Muhammad Baluch and another (P L D 1982 Quetta 31). It was held in this ease that the general principle of res judicata is applicable to writ petitions also. It was further noted by the learned Judge of Baluchistan High Court that same view was token by the Supreme Court in the case reported as Muhammad Chiraguddin Bhatti v. Province of West Pakistan through Collector of Bahawalpur (1971 S C M R 447).

There is no doubt that the earlier petition arose from the same background namely the cancellation of the criminal case registered against the respondents Nos. 2 and 3. But the parties as well as the reliefs sought in the said petition being different, from those of the present petition, the principle enunciated in the case of Baluchistan High Court would not be attracted. The respondents Nos. 2 and 3 not being party to the previous petition, could not invoke the principle of res judicata praying for dismissal of the petition .on that ground.

It was next submitted by the learned counsel for the respondents that the order by which the criminal case was dropped was made by superior Officer of the petitioner and as such it was binding on him. Consequently he was precluded from challenging the order at any legal forum. In support of his argument the learned counsel placed reliance on Police Rules, 1934 and the Government Servants Conduct Rules 1966. In reply to this argument, the learned counsel for the petitioner cited several authorities to order to show that there was no bar on the petitioner from going into Court in direct complaint to assail the aforesaid order. We did not deem fit to go into those authorities because the proposition laid down B by them was not disputed. There is absolutely no controversy on the point that a person aggrieved by the order made or action taken by police can agitate the matter in Court of competent jurisdiction by filing a direct complaint.

The only question that engages our attention is whether the petitioner was the aggrieved person and if so, if he could challenge the orders of his superior officers. There is no denying of the fact that the petitioner dealt with the case under consideration in his capacity as a police officer. He was not interested in the case personally in his private capacity, more so when even the investigation in the case was conducted not by him, but by some other police officers. It is true that a report/complaint about commission of a criminal offence, riot reportable by specified person under the law, can be lodged even by a person who is not directly or personally concerned. But in the instant case the position was entirely different in that the petitioner who was associated with the case as a police officer could not turn round and assume the role of private individual for the purpose of filing a direct complaint. In such an eventuality on one hand he would be bound by the orders passed by his superiors, notwithstanding his personal disliking, while on the other hand he would be opposing the same orders. If a police officer is allowed free hand in this manner, it will seriously impair the service discipline, entailing disastrous consequences. Indeed the service discipline is enforced more vigorously in the Police Department than any other Government Department. In this connection we may refer to rule 14.7 of the Police Rules, 1934. It reads as under :‑

14.7. A Police Officer shall not record comments on the remarks made by a Superior Officer. If a Police Officer considers that an erroneous view has been taken of his conduct of any matter affecting his administration he may refer the, question in a temperate manner through the proper channel."

This rule obviously lays down the procedure for guidance of the Police Officer who wants to agitate against the erroneous view taken about his conduct or any matter affecting his administration. It impliedly precludes him from taking any such matter in Court of law in direct complaint or otherwise. Our attention has also been drawn to rule 27 of W. P. Government Servants (Conduct) Rules, 1966. It is as follows :‑

"27. Vindication by Government servants of their public acts or character. (1) A Government servant may not, without the previous sanction of Government, have recourse to any Court or to the press for the vindication of his public acts or character from defamatory attacks. When Government grants sanction to a Government Servant to have recourse to a Court, Government will ordinarily bear the cost of the proceedings, but may leave the Government Servant to institute them at his own expenses. In the latter case, if he obtains a decision is his favour, Government may reimburse him to the extent of the whole or any part of the cost.

(2) Nothing in this rule limits or otherwise affects the right of a Government servant to vindicate his private acts or character."

It clearly shows that Government Servant cannot have recourse to any Court for the vindication of his public acts and character except with prior permission of the Government. He is, however, free to defend his private acts and character. The lodging of the report at Police Station in the case against the respondents was obviously a public act of the petitioner. He was not permitted to vindicate such act without prior sanction of the Government. The direct complaint by which he sought to vindicate his public act referred to above being unauthorised by the Government was, therefore, without legal backing. It ii clear from the record that he filed direct complaint after he 'had been involved ‑in the corruption case. This explains the delay of about two years in filing the direct complaint which cannot but be held as a step on the part of the petitioner to vindicate his public act mentioned above. As pointed out above, he could have recourse to Court only after obtaining the necessary sanction from the Government. We do not see any justification to make departure in this case and condone the procedure followed by the petitioner which is in utter disregard of the rules. It was further submitted by the learned counsel for the respondents that the direct complaint filed by the petitioner was not a "complaint" within the meaning of section 4(1)(h) of Criminal Procedure Code. As defined in this section, "complaint" means allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include a report of Police Officer. We have made it abundantly clear that the petitioner's role in relation to the criminal case against the respondents had been of official character. He could not deal with the case in double capacity a early stage as a police officer and at later stage as a private individual. His so‑called direct complaint was, therefore, nothing but a report from a police officer and as such it is excluded from the definition of complaint Consequently it could not be entertained as direct complaint.

The next point agitated at Bar was whether dropping of the criminal case which was made under the orders of Martial Law Authorities could be questioned in Court of law. In view of our findings on the first two points, we need not go into this controversy.

For above reasons we dismiss the petition in limine.

Petition dismissed.

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