ASLAM RIAZ HUSSAIN, J.-- The petitioner seeks leave to appeal against the order of the High Court, dated 20-10-1983, dismissing his criminal revision.
2. Abdul Wahab Khan petitioner is a Magistrate and was posted as Assistant Commissioner at Mianwali on relevant date. Respondent No.1, Lt.-Col. M. Nisar Ahmad, was the Deputy Commissioner of the said District at that the.
The petitioner was occupying a bungalow belonging to the Education Department. Another bungalow adjacent to it (also belonging to the said Department) was occupied by Sher Ali, D.S.P.
While the petitioner-Magistrate was away from the District the said D.S.P. Raped his wife. On his return the petitioner's wife informed him of this incident and it was with much difficulty that the petitioner was able to lodge an F.I.R. About the matter. The aforementioned D.S.P was, thereafter tried and convicted for the said offence and was sentenced to 7 years' R.I.
3. According to the petitioner the Deputy Commissioner (respondent No.1) was on very friendly terms with the aforementioned D.S.P. And being annoyed on the criminal action taken by the petitioner against the D.S.P. And as a result of the conspiracy with other respondents, got him forceably evicted from the house on 24-5-1978 as a measure of punishment. This was got done through respondents Nos.2 to 5 and some other persons. It is alleged that during this forcible eviction the locks of almirahs in the petitioner's house were also broken and some jewellery of his wife was taken away by some of the respondents and the Magistrate and his wife and children were thrown out forcefully in the presence of a number of persons.
4. It appears that the petitioner was again unable to lodge the F.I.R. Against the high officials of the District. He, therefore,, lodged a private complaint in the Court of a Section 30 Magistrate at Mianwali. The same was, however dismissed for lack of sanction under section 197, Cr.P.C. He filed a revision against the said order but failed.
Hence the present petition.
5. We issued notice to the State as well as respondents Nos. 1 to 5.
6. We have heard the learned counsel for the parties at considerable length and have also gone through the relevant portions of the record with their help.
The learned counsel for the petitioner urged that the respondents had acted in conspiracy with each other in pursuance whereof they have thus committed a number of illegal acts which cannot be said to have been done in the performance of their official duties and as such no sanction was required for their prosecution for these illegal acts.
7. The learned counsel for the respondents submitted in reply that the proceedings for eviction of the petitioner from the house in question had been initiated much earlier, under the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, on a memo sent to the respondent-Deputy Commissioner by the Divisional Commis--sioner on the 20th of January, 1977, where after a number of notices were sent to the petitioner by the Deputy Commissioner requiring him to vacate the house. But when the petitioner failed to comply with the same, the Deputy Commissioner was left with no other alternative but to order his forcible eviction from the house in question. The counsel submitted that the at in question was done by the respondents in the performance of their official duty under the aforementioned Ordinance and, therefore, sanction for their prosecution under section 197, Cr.P.C. Was essential.
8. As against this the learned counsel for the petitioner read out the statement of the District and Sessions Judge recorded by the trial Magistrate during the preliminary hearing of the private complaint, the counsel submitted that the statements of District and Sessions Judge was itself sufficient evidence of the alleged conspiracy between the Deputy Commissioner and other respondents for humiliating and punishing the petitioner; that the acts purported to have been done in the exercise of their powers under the aforesaid Ordinance of 1965, are not covered by any other law, no sanction under section 197, Cr.P.C. Is, therefore, required in this case. He submitted further that section 11 of the aforesaid Ordinance, being a special provision, overrides the general provision of section 197, Cr.P.C. In view of sections, (2) and 5(2) of the Cr.P.C.
9. After hearing the learned counsel for the parties and considering the matter carefully we feel that this is a fit case for grant of leave. Leave is, therefore, granted to consider inter alia (i) whether the Deputy Commissioner (respondent No.1) and other respondents did the acts alleged by the parties and if so whether they fell within the powers conferred by the above-mentioned Ordinance of 1965; (ii) whether) the alleged acts done by the respondents could be said to have been committed by them while acting or purporting to at in the discharge of their official duties and (i.e) whether the provisions of section 11 of the aforesaid Ordinance being special law override the provisions of section 197, Cr.P.C.
10. The appeal shall be heard on the same record with permission to file additional documents.