FAHIM AHMED SIDDIQUI, J.---Since the impugned order in both the abovementioned criminal miscellaneous applications is the same, as such I intend to dispose of both of them with this single order .
2. The background of the filing of these criminal miscellaneous applications is that respondent Muhammad Chuttal alias Imran has filed a direct complaint before the concerned Judicial Magistrate, which was dismissed by the learned Judicial Magistrate being coram non-judice. The said order was challenged through Criminal Revision Application No. 39 of 2020 before the Sessions Court Khairpur , which was entrusted to the Additional Sessions Judge-I, Khairpur , who allowed the same through impugned order dated 06-01-2021. What is more, through the impugned order , the subordinate appellate forum issued directions to the judicial magistr ate concerned to entertain the complaint filed by the respondent.
3. The factual matrix of the case is that Mr. Mir Hassan Kalhoro is a judicial officer and performing his duties as Senior Civil Judge in District Khairpur before whom in a civil suit respondent Muhammad Chuttal alias Imran being Tapedar was called as an official witness for production of revenue record in respect of some landed property .
Allegedly , the respondent could not produce certain documents due to the reason that Dakhil Kharij Register was lying with the Deputy Commissioner . As per the contents of the complaint filed by the respondent, he sought time to bring the record but the said Senior Civil Judge became furious, abused him, called the police and handcuf fed the respondent, and kept him in police custody for two hours. Hence the respondent has filed a direct complaint nominating in which the said presiding officer of the court as accused. The said complaint was turned down by the learned Judicial Magistrate but he was directed to take cognizance through impugned order mentioned above.
4. When the impugned order came into the knowledge of the learned Additional Prosecutor General, he filed a miscellaneous application against the said impugned order while the aggrieved judicial officer also challenged the same through a separate application. In both the applications, notices were issued and the learned prosecutor waives the notice on the application filed by the aggrieved judicial officer while notices were served upon the respondent. The respondent has engaged an advocate but his counsel Mr. Safdar Ali Bhatti did not appear to argue the matter on a single date and, on some dates a brief was held on his behalf by some members of the bar. On the last date of hearing, it was made clear to the respondent that no further adjournment would be granted, and in case of non-appearance of his counsel, he has to address the Court himself. Since today, again Mr. Bhatti remained absent While the respondent was present, as such he was directed to proceed with the matter .
5. Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General preferred his submission at length. The gist of his arguments is that whatever the order passed by the Senior Civil Judge, the same is protected being a judicial officer. According to him, for his judicial function, no criminal or civil litigation can be initiated against him. After quoting the relevant provision of the Judicial Officers Protection Act, 1850, he submits that there is no option available except that the proceedings initiated by the respondent by filing a direct complaint be declared as null and void in the eyes of law .
6. Mr. Bozdar has preferred to adopt the arguments of the learned Addl. P.G. However , he arguments are the same by submitting that orders passed by the judicial of ficers are also protected as per provision of section 77 of P .P.C.
7. The respondent has described the facts mentioned in his complaint and stated that he was humiliated and handcuf fed without any fault of his. However , he did not say anything about the legal aspect by submitting that he could not say anything about law point while his advocate is also avoiding his appearance.
8. After hearing the arguments advanced before me, I have also gone through the relevant record and referred statutes.
9. The judicial officers are discharging a sacred duty of imparting justice and to achieve this noble task assigned to them, they have to enforce the law only with an aim to secure the ends of justice. Being a fundamental principle of jurisprudence, it was felt necessary in the public interest that no action either of civil or criminal nature should lie against a judge, either of the statutory or constitutional courts, for his judicial act. It does not mean that a judge is a sacred cow that is why a proper mechani sm has been designed for entertaining complaints against a judge. So far as the judgment and order of a judge are concerned, the remedy of the aggrieved person against such judgment or order is to approach the higher forum through the appropriate proceeding. Conversely; the action of a judge, while sitting under the canopy of court, cannot be questioned by initiating a civil or criminal proceeding against him. This immunity is necessary for the independence of the judiciary and to give confidence to the judges to discharge their duties without any fear and distress and provide justice within their jurisdiction. Such immunity from a civil or criminal action is essential for the strength of the entire judicial process. Even the idea of providing such immunity to the judges of all cadre is more than that. They cannot be questioned regarding wrong or erroneous judgments, which are open to revision or appeal within the hierarchy of the judicial system, and unless there is some malice or underhand issue in respect of such judgments and orders, the immunity is extended up to the administrative action also. Hence, it is a long-settled judicial norm that no action of any sort lay agains t a judge for doing something in the exercise of his judicial powers within his jurisdiction except the same is done maliciously and contrary to good faith, This universally accepted immunity enjoyed by judges has been beautifully incorporated in our penal code in General Exception (Chapter-IV of P .P.C.) by inserting section 77 of P .P.C., which says; Section 77, P .P.C.
"Act of Judge when acting judicially . ---Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law ,"
10. If for arguments' sake, the respondent's contention is admitted as gospel truth regarding his humiliation and attraction of section 500, P.P.C. regardin g the action taken by the Senior Civil Judge, even then a criminal case cannot be initiated against a judicial officer. The reason is that even for a criminal act done by a judge, the legislature has provided a safety valve in the shape of section 197, Cr.P.C., so that a judge may not be unreasonably humiliated or intimidated. Section 197, Cr .P.C. is reproduced here:-- Section 197, Cr .P.C.
"Prosecution of Judges and public servants :--When any person who is a Judge within the meaning of section 19 of the Pakistan Penal Code, or when any Magistrate, or when any public servan t who is not removable from his office save by or with the sanction of the Federal Government or Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction---
(a) in the case of a person employed in connection with the affairs of the rederation, of the President; and
(b) in the case a person employed in connection with the affairs of a Province, of the Governor of that Province."
11. Perhaps, the provisions of law mentioned above were not brought to the notice of the learned Additional Sessions Judge at the time of passing the impugned order . In view of the above provision of law, it is quite clear that no criminal action can be initiated against a judicial officer in discharge of his judicial duty, and if a criminal case is intended to initiate against a judicial officer, the same can only be done with the previous sanction, which was never obtained by the respondent.
12. Nevertheless, the above provisions of the law have covered the protection of judges up to the extent of criminal cases only but the legislature did not consider the same as sufficient, as such a separate and laconic enactment was promulgated, which is known as 'Judicial Officers Protection Act, 1850'. From the title of the said law, it is clear that this Act is specially meant to protect the judges of the Court of Record, which covers the initiation of civil action also against them, which reads as; THE JUDICIAL OFFICERS' PROTECTION ACT, 1850 Preamble. For the greater protection of Magistrates and others acting judicially; It is enacted as follows
1. Non-liability to suit of officers acting judicially , for official acts done in good faith, and of officers executing warrants and orders.--No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order , which he would be bound to execute, if within the jurisdiction of the person issuing the same.
13. Needless to say that the applicant judicial officer enjoys protection and immunity not only under the universal principle of jurisprudence but a thick blanket of such cover is available to him under the aforementioned statutory provision, as such no criminal or civil action can be taken against him in view of the clear-cut statutory provisions discussed above. Resultantly , both the criminal E miscellaneous applications are allowed and the impugned order is set aside by holding that no criminal or civil proceeding can be initiated against the applicant judicial officer, as he enjoys immunity in respect of all his judicial functions.
14. However , before parting, I would like to add something about the action of the respondent and discuss the reasons for happening of the said incidents in a court of Senior Civil Judge. In our jurisdiction, very few civil cases are filed by the litigants on account of some misconception or misjudgment in respect of their rights or duties. The majority of civil litigation is based upon some ulterior motive where at least one party of the litigation, intends to linger on the litigation. In certain cases, the government officials become instrume ntal regarding creating delay in the trial, and in such a situation sometimes presiding officers are obliged to respond by showing sometimes presiding officers are obliged to respond by showing some coarseness so that such practice of unreasonable delay is curbed. Apparently , the present case is one of the same. The respondent, who is a tapedar has taken a plea in his complaint regarding the non-production of certain documents before the Court of Senior Civil Judge by saying that the documents were in the custody of the Deputy Commissioner . The said Tapedar has initiated a criminal proceeding against the judicial officer instead of approaching the higher authority of the said judicial officer if any wrong was really done with him. He did not sort permission from his superiors or get the requisite sanction before filing a direct complaint against a judicial officer. Even, he has not reported the same to his higher authorities so that his grievance, if any, may be taken up by them in some dignified manner . In view of the referred provision of law, such action of the respondent tapedar is also unjustifiable and amounting to hindering the independence of the judiciary , which itself is an offence. I, therefore, direct the learned M.I.T . of this Court to bring such action of the respondent tapedar into the knowledge of the higher authorities of the respondent tapedar with direction to initiate a disciplinary proceedings against him under intimation of this Court. It is also directed that the respondent should be transferred from District Khairpur immediately . Office is directed to communicate the order of this Court through fax to Commissioner Sukkur Division Sukkur as well as copy of the same be provided to Additional Advocate General for compliance.