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Criminal Revision Application No. 527 of 1962, decided on 4th March 1963.

Prolection available to public servant who can reasonably claim that what he did, he did in virtue of his office‑Each case to be decided on its own facts‑Farm Officer, in charge of over‑all discipline and administrative control of Military Farm, addressing, in his official capacity, letter to one of employees on Farm telling him to desist from paying clandestine visit to wife of another employee resident on same Farm‑Officer, held, protected from prosecution under S. 500, P. P. C., without proper sanction ‑ Penal Code (XLV of 1860), S. 500.

Matiar Rahman Bewan v. The State P L D 1958 S C (Pak.) 21 ; Syed Ahmed v. The State P L D 1958 S C (Pak.) 27 ; S. M. H. Rizvi v. Abdus Salam and another P L D 1960 S C (Pak.) 358 and Matajog Dobey v. H. C. Bhari P L D 1957 S C (Ind.) 160 ref:

Anis Yousif for Appellant.

Haq Nawaz for Respondent.

Murtaza Hussain for the State.

Date of hearing : 4th March 1963.

This is a revision application under section 439 read with sections 435/436 and 561‑A of the Criminal Procedure Code against the order of the learned Additional Sessions Judge, Karachi dated the 31st July 1962, in Revision Application No. 198 of 1961, maintaining the order of the learned 19th A. C. M. Karachi, passed on the 21st September 1961, discharging the respondent under section 253 (i), Cr. P. C.

2. The facts that led to the two orders being passed are that initially the applicant Mst. Noor Nabi filed a complaint on the 7th of June 1961, against the respondent Sultan Shah, who is described as a Farm Officer on the Military Farm of the Malir Cantonment under section 500, Cr. P. C., alleging that she had been defamed by the respondent by being called a woman of bad character with illicit relations with persons other than her husband. The applicant is the wife of one Muhammad Bashir, who was a weighman at the Military Farm, Malir. She lived with Bashir in a quarter provided for the staff of the Farm. P. W. Abid Hussain was a Sub‑Assistant Supervisor at the same Farm, and occupied one of the quarters. P. W. Matiur Rahman also employed in the same Farm, lived in a quarter adjacent to the applicant and her husband, Muhammad Bashir. It has been consistently admitted that respondent Sultan Shah was in charge of the entire administration, discipline, etc., of the Farm on which several of the employees lived with their families: Sometime before the complaint was filed, the respondent Sultan Shah is alleged to have written a letter to Abid Hussain suggesting to him on grounds of discipline and on the basis of representations made by other members of the Farm staff, that he was suspected of indecent relations with the wife of the weighman Muhammad Bashir, which was contaminating the moral atmosphere of the Farm, that Abid Hussain had been advised personally in con sequence not to visit the applicant in the absence of her husband, and that Abid Hussain had not heeded this advice. Further, that instead of appreciating the object with which the advice had been given, Abid Hussain appeared to contend that it was entirely a private matter with which no other person had any business to interfere, and therefore called upon him in the interest of dis cipline on the Farm, that the instructions given to him were justified and to explain why he had not complied with them. iC was the applicant's case that by virtue of this letter and a subsequent one (Exh. 4‑B marked confidential) in the trial Court, she had been defamed, that this fact had become known to her through her husband, that one Matiur Rahman as a neighbour had been asked to watch over the conduct of Abid Hussain, in consequence of which she considered it necessary to call upon the respondent by a notice to tender an unqualified apology and to pay Rs. 500 as damages.

3. In the Court of the first instance, namely that of the 19th A. C. M., Karachi, the matter was decided both on facts and on law against the applicant. The learned A. C. M. held that the respondent in his official capacity was protected by virtue of section 197, Cr. P. C., in that he could not be prosecuted without the necessary sanction of the appropriate authority, and that even on facts it had not been proved that the applicant had been lowered in anybody's estimation, and no case of defamation was made out against the respondent.

4. In revision, the learned Additional Sessions Judge held that the respondent was also protected by the exceptions 8 and 10 to section 499, P. P. C. and was, therefore, not liable for an offence under section 500, P. P. C.

5. In the context of the admitted position that the respon dent as the Farm Officer‑in‑charge of the Military Farm at Malir Cantonment, Karachi, was in over‑all administrative control of the entire Farm, its establishment, family members' well‑being, discipline etc., it is important to bear in mind that Exh. 4‑A was addressed to Abid Hussain with the subject marked as "dis cipline."

6. It is quite clear on a perusal of the record and after hearing learned counsel on either side, that the applicant in both the Courts below was unable to prove that Exh. 4‑A had either been signed by the respondent or indeed that it had been written under his instructions. There is no doubt that the respondent Sultan Shah is a public servant within the term "public servant," in section 21 of the P. P. Code. This has not been seriously contested, and indeed has been established on the face of it. The point for determination then is even if it is conceded that Exhs. 4‑A and 4‑B were written at the instance of or under the instructions of or over the signature of the respondent, whether the respondent could be tried without the proper sanction of the "appropriate authority".

7. The relevant portion of section 197, Cr. P. C., that applies in the present case would be if the respondent was acting or purporting to act in the discharge of his official duty, and A it has been held that the test "may well be whether the public servant if challaned can reasonably claim that what he did, he did in virtue of his office" . . . . . .

8. In Matiur Rehman Dewan v. The State (P L D 1958 S C (Pak.) 21) it was held that even though some of the acts of a public servant may appear not to be within the precise powers vested in him, yet if he did them in virtue of his office, having no private axe to grind, such acts would have the protection of section 197, Cr. P. C.

9. In Syed Ahmed v. The State (P L D 1958 S C (Pak.) 27), their Lordships further held :

"Since it is clear that the commission of offences 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 in 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 discharg ing or professing to discharge those duties, a reasonable person might assume that he could or might act in that way. That is the sense in which the statement of the Privy Council in Gill's case 75 I A 41, viz. that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be understood.

Every such case must of course be decided upon its own) facts, but the consensus of opinion is that where the assault is of a minor nature and therefore the exceeding of the authority which corresponds to the duty in question is slight, section 197 of the Criminal Procedure Code, would apply."

10. S. M. H. Rizvi v. Abdus Salam and another (P L D 1960 S C (Pak.) 358), is another pertinent ruling holding that

"The purpose of section 197, Cr. P. Code appears to be to define a sphere in which departmental or administrative law should be applicable at the option of Government to the conduct of public servants. The limits of the applicability of such administrative law are to be set in each case by the ordinary Criminal Courts on the basis of their opinion as to whether the action in question was performed by the offending official while acting or purporting to act in the discharge of his official duty.

The purpose of section 197, Cr. P. C., has often been declared in judicial pronouncements to be to protect public servants against vexatious prosecutions by members of the public. That may possibly be one object, but a more correct view would appear to be that the Government which has complete control over its officials while engaged in the performance of their official functions, is by that section, also empowered to deal at its option with matters of excess in the discharge of those functions, provided that the excess is within the scope of those functions, and the behaviour cannot be thought to constitute an independent injury or offence falling within the ordinary law and wholly outside the departmental authority of the Government."

11. On the same point, the Supreme Court of India in Matajog Dobey v. H. C. Bhari (P L D 1957 S C (Ind.) 160), held that

"The offence alleged to have been committed must have something to do or must be related in some manner with dis charge of official duty. No question of sanction can arise under section 197 unless the act complained of is an offence ; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable con nection between the act and the official duty."

12. In the light of these principles and the admitted posi tion and responsibility of the respondent Sultan Shah in virtue of his office, and these responsibilities related not only to his official duties as the Farm Officer, but also to the over‑all administration of the residents of the Farm, the property constitut ing it, he could have if he considered it necessary, and did rightly issue a letter in terms of Exh. 4 on the grounds of discipline and public good. It is difficult to believe that a responsible officer holding the position that the respondent did vis‑a‑vis the Farm, would call upon one of his subordinates living under his adminis tration to conform to certain modes of conduct, if he did not have some reasonable suspicion or definite information as to his C behaviour. An imputation on the basis of which Abid Hussain was called upon in terms of Exh. 4‑A to adjust his conduct could not have been lightly made, specially as it related to the wife of another resident of the Farm. There is a definite connection between the act complained of against the respondent and his admitted official duties, and, therefore, (there is) no doubt as to the finding that the respondent was entitled to the protection of a section 197, Cr. P. Code, and could not be prosecuted without the necessary sanction.

13. On facts also, two of the Courts below have held against the applicant. On the testimony she examined in the trial Court and which has been judicially tested, she had failed to establish that she had been defamed in any way. On her own showing, her information as to her alleged defamation is hearsay, for she has admitted that what she has stated was conveyed to her by her husband, Bashir Ahmed. Bashir Ahmed, the applicant's husband, continued to assert that he considered his wife to be of a chaste character, pac daman, as he alleges her to be. It has been rightly held that Bashir Ahmed himself together with Abid Hussain, and Matiur Rehman, have a definite and established grievance against the respondent for action taken against them, enquiries having been ordered in regard to their official conduct and two of them have been punished. Matiur Rahman's incre ment has been stopped at the instance of the respondent for six months, and he has besides been charge‑sheeted for being absent without permission. A warning has also been issued to him. Bashir Ahmed, the applicant's husband, has been discharged from service as from July 1961, and Abid Hussain has been transferred to Quetta.' He is the person to whom Exh. 4‑A was addressed, and he admits never to have complained to applicant's husband about the warning that was given to him to adjust his conduct, and although he states he never went to the applicant's house between the 3rd of April 1961 and the 10th of May 1961, the applicant herself has admitted that Abid Hussain used to do so. Besides, Abid Hussain in the charge of defamation has admitted that the complainant was a virtuous woman. This in the context of his admission that he had written a letter to the applicant's husband asking him to send the complainant to Quetta "for a change". There is an inquiry against Abid Hussain in respect of malpractices concerning the purchase of buffaloes.

14. In the context of this evidence examined on behalf of the applicant, there is no doubt that the Courts below had rightly concluded that even on facts, the applicant had failed to establish her case against the respondent. In the circumstances it was not incumbent upon the trial Court to call upon the accused to make a statement or give an explanation since, in any case, on the ground of want of necessary sanction of the establishment of a prima facie case against him, he was entitled to a discharge. There is no evidence whatsoever as to the reputation of the applicant having been damaged in any way.

15. I, therefore, dismiss this revision application.

K. s. A.

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