1. NASIM HASAN SHAH, J.-This judgment will govern two appeals by leave of this Court in a criminal case, namely, Cr. Appeal No. 56 of 1979, filed by Syed Mushtaq Hussain Bokhari and Criminal Appeal 57 of 1979, filed by the State, against the same judgment of a learned Single Judge of the Lahore High Court, Lahore, passed on 29-4-1979, whereby criminal revision (Cr. R. No. 639 of 1977), filed by Syed Mushtaq Hussain Bokhari, against the order of the Additional Sessions Judge, Lahore, dated 10-10-1977, was dismissed.
2. The relevant facts, briefly stated, are that there was considerable hostility between Rana Muhammad Sadiq (deceased) and Syed Latif Hussain Shah, S. H. O. Of Police Station, Manawan (District Lahore) who was at the relevant time within the jurisdiction of Syed Mushtaq Hussain Bokhari, D. S. P., Saddar Circle, Lahore (appellant in Cr. Appeal No. 56/79 and res--pondent No. I in Cr. Appeal No. 57 of 1979). Both sides got a number of cases registered against each other. Rana Muhammad Sadiq felt danger to his life at the hands of the Manawan Police. He, therefore, addressed a letter to the District Magistrate, Lahore, expressing his apprehension that he might be murdered by the Police. The District Magistrate, therefore, address--ed a D. O. Letter to the S. P. To the following effect :-- "The petitioner appeared before me today and stated that he was being harassed by the Police to such an extent that he apprehended danger to his life. He has some documents with him with which he estab--lishes the fact that the Officer Incharge, Police Station has deliberately acted to cause harm to him. It would be greatly appreciated if he ;j given a patent hearing and necessary remedial action is taken quickly.
3. I am attaching his original application.
4. PERVEZ MASUD C.S.P., Deputy Commissioner, Lahore.
5. S.S.P. Lahore"
6. On the 30th September, 1973, there was a fight between Rana Muhammad Sadiq and his party on one side and the relatives Malii, Nlaraj Khalid and the Police on the other. It appears that the relatives of Malik Maraj Khalid accompanied by some Policemen attacked Rana Muhammad Sadiq in the carly hours of the night and during the change of firing between the parties two foot- constables in plain clothes, namely, Barkat Alt and Manzoor A.I, were bit and died.
7. On this, the Police force undertook an extensive search for Rana Muhammad Sadiq and it is alleged by the Police that Rana Muhammad 5adiq died in a Police encounter wherein there was exchange of fire between the Police and Rana Muhammad Sadiq (deceased) and his companion. The story given out by the Police in the F. I. R. Lodged in that behalf is that Police bad arranged a Nakabandi at the bridge of Rajba Shalimar where a raiding party had alraedy been posted with a view to look for and arrest Rana Muhammad Sadiq. At 2-30 a.m. (on the night between 30-9-1973 and 1-10- 1973) two persons were seen coming from the opposite side On approaching the bridge they were asked by the Police to disclose them identity but suddenly the two persons started firing at the Police. They were told not to fire but when they did not stop firing, the Police also opener fire, as a result of which Rana Muhammad Sadiq was killed. An F. I. R (No. 228, dated 1-10-1973) was lodged at the instance of Syed Mushta( Hussain Bokhari, D. S. P., about this incident against Rana Muhammad Sadiq and his unidentified companion, who had escaped, under sec--petition 307/332, P. P. C., at Police Station, Manawan. Raja Aqeelullah, Magis--trate, first Class, conducted an inquiry under section 174, Cr. P. C. He inspected the spot ; recorded the evidence of the witnesses and submitted his report on 2-10-1973 wherein, he held that Rana Muhammad Sadiq had died in a police encounter.
8. Rana Mahmood Ahmed, the son of the deceased, who was also an accused in the double murder case, thereafter lodged a private complaint alleging that his father had, in fact, been murdered by the police in cold-blood, after arresting him, and then, in accordance with the usual pattern lodged an F. I. R. Saying that he had been killed in a "police encounter". The complaint remained pending with the Assistant Commissioner, Lahore for about three years and on promulgation of the Law Reforms Ordinance, the same was then entrusted to Mr. Muzaffar Hussain, Additional Sessions Judge before whom the complainant in addition to himself examined Faqir Muhammad (another accused person in the double murder case) as P. W. To the course of proceedings envisaged by section 204 of Cr. P. C. The learned Additional Sessions Judge, found a prima facie case under section 302/34. P. P. C., against the D. S. P. And the other accused and directed bailable warrants of arrest in the sum of Rs. 5,000 each to be issued against them--. Thereafter, the case was transferred to the Court of Mr. Jacob Iasac, another Additional Sessions Judge, posted at Lahore.
9. Any how on 14-9-1977, the accused D. S. P. (appellant in Cr. A. No. 56 of 1979 and respondent No. 1 in Cr. A. No. 57/1979) filed an application under section 265-K of the Code of Criminal Procedure before the learned trial Court in which all the facts leading to the murder of Rana Muhammad Sadiq during the encounter with the Police Party were stated in detail. While the said application was still pending, he also filed an affidavit on 5-10-1977 in support of the facts stated in the application to the effect that a judicial inquiry had already been conducted by Raja Aqeelullah, M. I.
10. C., Lahore into the case of death of Rana Muhammad Sadiq and that it was found by the said Magistrate that Rana Muhammad Sadiq had died in an encounter with the Police Party on the night falling between 30.9-1973 and 1-10-1973, that it was the deceased Rana Muhammad Sadiq who had opened the fire at the Police Party ; and that at the relevant time, he was a D. S. P. And had acted in the discharge of his official duties and as such, the Court could not take cognisance of the case alleged against him without the previous sanction of the Provincial Governor under section 197, Cr. P C.
11. The learned Additional Sessions Judge, however, by his order dated 10-10-1977, dismissed the application observing that according to the aver--ments to the complaint the accused could not be deemed to be acting in performance of his duties at the relevant time because it was alleged that Rana Muhammad Sadiq (deceased) had been first picked up by the Police and later on murdered in cold blood by the accused D. S. P. And his co accused mentioned in the complaint. , Aggrieved of this order, the accused filed a revision before the High Court (Cr. Revn. No. 639 of 1977) which was also dismissed vide judgment dated 29-4-1979. Both the accused and the State felt aggrieved by the order and filed petitions for leave to appeal namely, P. S. L. A. No. 41-R of 1979 and P. S. L. A. No. 260 of 1979, respectively, which were allowed by this Court on 4th July, 1979. Hence these appeals.
12. The first question which requires consideration is the stage at which the question of sanction be decided, namely whether a collateral inquiry should start immediately on the submission of application under section 197, Cr. P. C. By the accused to the effect that his prosecution without the prior sanction of the appropriate authority is not competent or whether the com--plaint should be proceeded with and the evidence of the parties allowed to continue and if during the course of the proceedings it appears that the case such wherein the previous sanction for prosecution as envisaged by section 197, Cr. P. C., is necessary because there is a reasonable connection between the act done and the discharge of official duty and the act bears such relation to the duty that the accused could lay a reasonable, but not a pre--tended or fanciful claim, that he did it in the course of the performance of his duty ; the proceedings should be stopped forthwith in order to await the accord of the sanction for prosecution by the competent authority. In the instant case, without saying so expressly, the High Court in the impugned order has subscribed to the latter view.
13. 1qbal Hussain Siddiqui and 2 others v. The State (1970 SCMR 126) appearing at page 733, namely - - "It will be sufficient for us, therefore, to indicate that in the present case the Magistrate should have first taken evidence on this point and if he came to view that the appellants were acting in the discharge of their duties then he should have stopped the hearing and called for the sanction."
14. On this view of the matter, the Court, in that case, allowed the appeal and directed the Assistant Commissioner Nowshera to first take evidence on the point as to whether the appellants were engaged at the relevant time in the discharge of their duties. It was further observed that if he came to the conclusion that they were so engaged then he should stop the proceedings and give time to the prosecution to file the sanction of the appropriate Government. The question of discharge would arise only when the pro--secution failed to do so. While giving these directions the learned Chief Justice observed that these directions were given in conformity with the rule laid down by this Court in two earlier cases, namely, Matlar Rehman v. The State (PLD 1958 SC (Pak.)
15. 27and Syed Ahmed v. The State (PLD 1958 SC (Pak.) 21 A reference to the last mentioned case, namely, the case of Syed Ahmed v. The State shows the Cornelius, J. (as he then was) discussed this matter fully. In fact, the judgment therein was rendered by the Full Court consisting of Muhammad Munir, C. J., M. Shahabuddin, A. R. Cornelius, Muhammad Sharif and Amiruddin Ahmed, JJ. And the Court indicated the procedure to be followed in such cases. It was observed that "in every case which is represented as falling within section 197, Cf. P. C., it becomes necessary for the Court to examine in the light of the relevant facts that might be regarded as the reasonable limits, applying to the freedom of action of the public servant, when he is required to exercise the relevant duties. It has been said in certain cases that the question whether section 197, Cr. P. C. Is attracted in a given case must be decided by reference only to the statements made in the petition of complaint. Such a view might have the effected destroying a substantial right which is vested in the Government of protecting its servants from harassm ent and prosecution by misrepresentation of their actions so as to give them the appearance of offences. The view which appears to us to be the best adapted to carry out the intention as well as the express requirement of section 197, Cr. P. C., is that expressed by Lodge, J. In Pollard's case (AIR 1943 Cal. 594That view is to the effect that a Court trying or inquiring into an alleged offence of the relevant kind should drop the proceedings as soon as it is satisfied that the offence was committed (if at all) while the officer was noting or purpoting to act in the discharge of his duties. In order to come to a conclusion on this point the evidence recorded in the case is available as for an ancillary or collateral purpose, notwithstanding that the Court could not take cognisance of the offence without prior sanction of the prescribed authority". The learned Judge went on to observe that "the record does not show whether the relevant authority has been approached to exercise its power under section 197, Cr. P. C. Or whether it has done so. Yet that does not necessarily entail evasion of the provisions of that section. On the view which we take, it is open to a Magistrate when trying a case of the relevant kind, to come to a conclusion at any stage of the case that in respect of some or, it may be all, the offences alleged the sanction of the appropriate Government would be necessary under section 197, Cr. P. C....
16. The result might be that after such period of time as is necessary for obtaining the orders of the Government, the Magistrate could proceed to try the accused on all the charges or alternatively on such of the charges as may be tried without the sanction of the Government as well as those charges in respect of which the sanction of the Government may have been accorded. By following such a procedure the risk of a prosecution being stifled at the outset would be avoided".
17. It is of interest to note that the Indian Supreme Court has also taken a similar view in Matajog Bobey and others v. H. C. Bhari and others (PLD 1957 SC (Ind.) 160The relevant obervations which appear at page 168 of the report are as follows :- "The question (whether sanction for prosecution is necessary or not) may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the light on a Police or judicial inquiry or even in the course of the prosecution evidence at the trial may establish the necessity for sanction.
18. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."
19. We accordingly think that as held in Syed Ahmad's case that the prose--cution should not be stifled at the outset and the parties allowed to produce their witnesses and if in the course of the proceedings it appears that the case is such that it cannot be tried without the sanction under section 197, Cr. P. C. Of the appropriate Government the proceedings should be stopped and a reasonable time be given to the complainant to file the sanction of the appropriate Government.
20. The question of acquittal under section 265-K of Cr. P. C. Will arise only if the complainant fails to do so within a reasonable time. We may observe that the contrary view being canvassed by the petitioners in the two appeals that the question of sanction should be decided at the outset would mean that the defence version would have to be examined first and if the defence version is taken up at the outset and is accepted, there will be nothing left to be examined. This bare circumstance indicates the futility of this approach and this could not be intention of the oliki*ation made in 1qbal Hussain's case which have been relied upon by the learned counsel for the appellant. In fact, Hamoodur Rehman, C. J. Clarified that the directions being issued by him were in confirmity with cases of Matiar Rehman Dawan and Syed Ahmad and must be understood in the light of the observations made therein.
21. A question was also raised before us that in view of the inquiry report submitted by Raja Aqeelullah, Magistrate 1st Class, who conducted a judicial inquiry into this incident and wherein he reached the conclusion that Rana Muhammad Sadiq had died in a Police encounter, as alleged by the appellant before us and, consequently, sanction under section 197, Cr. P. C., was essential before the D. S. P. Could be tried as an accused ; suffice it to say that in our view the findings in the aforesaid inquiry are a relevant piece o1 evidence which, after due proof and admission on the record, can be consi--dered at the appropriate stage alongwith the other material produced during the course of the proceedings to assess whether the sanction of appropriate authority is, indeed, necessary to continue the prosecution of the accused. i The result is that these appeals must fail, but subject to the observations made above. s. A. s.Appeals dismissed.