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Criminal Petition No. 60/R of 1983, decided on 29th May, 1984.

(Against the Judgment and Order dated 2‑5‑1983 of the Lahore High Court, Rawalpindi Bench, in P.S.L.A. No. 2 of 1981).

---Art. 185 (3)‑Penal Code (XLV of 1860), S. 120/364/342/323 Criminal Procedure Code (V of 1898), Ss. 197. 265‑K & 417 (2) Sessions Judge taking pains to consider every aspect of case ‑State ment of witnesses recorded by Magistrate and of complainant and bailiff recorded by himself were extensively reviewed in the context of conduct of petitioner himself and it was concluded that act of respondent had protection of S. 197, Cr. P. C. and that case was not likely to end in conviction of respondent hence order under S. 265‑K, Cr. P. C recorded‑‑Order passed .by High Court refusing leave to appeal disclosing no such error of law as to require further examination by Supreme Court‑Petition for leave to appeal to Supreme Court dismissed.

Sh. Zamir Hussain, Senior Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents Nos. 1 to 5

Ghulam Ahmad. Advocate Supreme Court for the State.

Date of hearing : 29th May, 1983.

‑The petitioner who is a complainant in criminal case under section 120/364/342/323, P.P.C. seeks leave to appeal against an order of the Lahore High Court dated 2.5‑1983 whereby be was refused leave to appeal against an order of acquittal recorded by the Sessions Judge, Attock, under section 265‑K of the Criminal Procedure Code.

On 17-4‑1976 the petitioner instituted a complaint under section 120/364/ 342/323, P. P. C. in the Court of Magistrate Section 30 Talagang, District Attock, against a number of police officers. The preliminary evidence was recorded by the Magistrate. The statement of the complainant and six witnesses was recorded and on 22‑5‑1976 his complaint was dismissed on the ground that no prima facie case had been made out against the persons named therein. A revision petition was then filed by the petitioner against the dismissal of his complaint. The learned Judge in the High Court after discussing the material on the record held as follows

"For these reasons I hold that prima facie a case of commission of criminal offence by the accused‑respondents has been established."

and then a retrial was ordered and the case was transferred to the file of the Sessions Judge, Campbellpur, for trial.

The learned Sessions Judge examined the complainant and the bailiff of the Court who had effected recovery of the complainant from what was said to be an illegal confinement. An application was at that time presented by some of the respondents facing the charge that their prosecution was illegal in view of section 197 of the Cr. P. C. By a very lengthy order, the Sessions Judge held as follows: ‑‑

"If the accused or anyone of them summoned him to the police station for interrogation or raided his house, they were entitled to the pro tection afforded to them by the provisions of section 197, Cr. P. C. as they could not be prosecuted without the prior sanction of their respective Governments. I am sure, they had no personal or private axe to grind and whatever they did, it was connected with, or ema nating from, the performance of their official function."

After recording so, the learned Sessions Judge proceeded to examine one case on merits and held as follows: ‑

"Since almost entire evidence, which the complainant could possibly produce in support of his allegations in the complaint, is available on the file in the from of his own statement and those of two bailiffs recorded in this Court, and those of Zaigham Abbas, Abbas Ali Shah, Muzauian Abbas, Ajmal and Fateh Muhammad P. Ws. recorded by the learned Magistrate by way of preliminary evidence, the complaint can be disposed of on merits as well."

After examining the material on the record the learned Sessions Judge concluded as follows: ‑

"For all the above reasons, to continue with the trial of this case and to record full‑fledged statements of the remaining P. Ws. cited in the complaint, would be an exercise in futility for this Court and a wild goose chase for the complainant because there is no likelihood of the accused being convicted. They all are, therefore, acquitted under section 265‑K, Cr. P. C."

The petitioner once again approached the High Court this time under section 417 (2) of the Cr. P. C. seeking leave to appeal against the acquittal of the respondents. The learned Judge in the High Court disposed of the petition with the following observations

"I have carefully gone through the lengthy order, dated 22‑2‑1981 recorded by the learned Sessions Judge, Attock and also the records of this case. The statement made by Muhammad Akbar bailiff and Gamey Shah petitioner before the learned Sessions Judge have been considered and analysed. As a result of this analysis, I find that the learned Sessions Judge was justified to consider that there was no possibility of the respondents being convicted of the offences alleged by the complainant to have been committed by them. In this view of the matter, it is concluded that there is no merit in the under consideration petition for special leave to appeal and the same is, therefore, dismissed in limine."

The learned counsel for the petitioner contended that only two witnesses had been examined on behalf of the complainant before the learned Sessions Judge and the exercise under section 265‑K, Cr. P. C. was pre‑mature. It appears from the petition that other grounds were also urged that once the High Court took the view that a prima facie case existed the Sessions Judge could not have held that it was a case of acquittal. Besides the application of the respondents was for seeking protection under sec tion 197, Cr. P. C. and no claim was made for acquittal under section 295‑K of the Cr. P. C. and in such a situation an order under section 265‑K should not have been passed.

We find that the learned Sessions Judge has taken pains to consider every aspect of the case. The statement of the witnesses recorded by the Magistrate and of the complainant and bailiff recorded by himself were ex tensively reviewed in the context of the conduct of the petitioner himself and it was concluded that the act of the respondents had the protection of section 197, Cr. P. C. and also that the case was not likely to end in conviction of the respondents. Hence an order under section 265‑K, Cr. P. C. was recorded. We find that the order passed by the High Court refusing leave to appeal discloses no such error of law as to requite further examination in this Court. Leave to appeal is, therefore, refused.

M. Z. M. Petition dismissed.

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