1. HAMOODUR RAHMAN C. J.-The appellants, who are Deputy Superintendent, Inspector and Sepoy of the Customs Department Anti-Smuggling Squad, Nowshera respectively, were challaned on the 22nd of February 1968, under section 302 read with section 34 of the Pakistan Penal Code for the murder of one Muzaffar Khan son of Noor Kamal.
2. The Assistant Commissioner, Nowshera, on perusal of the first information report, took the view that since it was stated therein that the Customs Staff involved in the case "were on checking duty' and it was as a result of their firing that the deceased was killed" the prosecution had to furnish a proper sanction under section 197, Cr. P. C. For the prosecu--tion of the appellants who were all employees of the Central Government. As this was not done, the accused were discharged by his order dated 16th October 1968.
3. On the same date, a complaint filed on the 26th August 1967, by one Akhtar Ahmad against the appellants, alleging an offence under section 302/34, P. P. C., was also dismissed for want of sanction under section 197 of the Criminal Pro--cedure Code by the same learned Magistrate.
4. Against this order the prosecution went up in revision under section 436, Cr. P. C. To the District Magistrate, Peshawar. The latter took the view that the discharge was contrary to law as section 197, Cr. P. C. Was not attracted to the case of the appellants who were appoint able and removable by the Collector of Customs and not by the Central Government. The order of discharge was, accordingly, set aside and the case remanded to the Court of Assistant Commissioner, Nowshera for further proceedings in accordance with law.
5. A revision filed in the Peshawar Bench of the High Court of West Pakistan by the appellants was also dismissed on the same grounds, relying on a decision of the Federal Court in thecase of Afzalur Rahman and others v. Emperor(AIR1943FC18)
6. Special leave to appeal was, however granted to the appellants to consider the question as to whether they were appointed by the Central Government and were not removable by the Collector of Customs, as held by the and the High Court.
7. There are conflicting versions with regard to the facts giving rise to this case. The appellants' case is that the deceased and his brother, one Shammal, were notorious smug--glers and that on the 22nd of July 1967, the appellants had recovered 14 maunds of charges from a truck bearing No. PRA 1893 which was alleged by the driver of the truck to belong to the said Shammal and his associates. Thereafter, in the night between the 12th and 13th of August 1967, an information was received that smuggled goods would be taken by the Mardan-Nowshera Road. Acting on this infor--mation the appellants, in their capacity as Customs Officers, with another sepoy, posted a picket on the Northern side of Kabul River Railway Bridge. At about 2-30 a.m. a car No. QAA 1846 passed that way at great speed and did not stop in spite of being signaled. It was chased by the appel--lants and stopped at the other end of the bridge. Just then a truck bearing No. PRA 7301 also arrived. It was stopped and was about to be searched when another Toyota car came on the scene. The deceased, his brother Shammal and one Shera came out of the car, began to abuse the appellants and threatening to kill them, took aim with rifles and pistols. The appellants took cover behind the truck but Shammal signaled the truck to move and started firing. The appellants then took cover behind the car No. HA 2893, while the smugglers continued to fire. A bullet hit the back side of the car No. HA 2893 which belonged to the appellant No. 1. At this stage the appellant No. 3 opened fire with a Govern--ment rifle in self-defence. The smugglers were, however, successful in taking away the truck and escaping from the place. Attempts were made to chase the truck but at the Attock Bridge it could not be found. Appellant No. 1 then lodged information with regard to this incident alleging an offence under section 307/34, P. P. C. Against the deceased Muzaffar, his brother Shammal, Shera and one other unknown person. This information was lodged on the 13th August 1967, at 6-30 a.m.
8. Thereafter, at 8-30 a.m. Of the same day one Akhtar Ahmad son of Nazar Gul, claiming to be the driver of Muzaffar deceased, lodged a complaint alleging that while they were travelling by car No. PRA 3325 during the night between the 12th and 13th of August 1967, they stopped the car at the Kabul River Railway Bridge finding the Railway gate closed. The deceased got -down from the car in order to urinate and went across the railing which was situated near the road At this stage all of a sudden shots were fired from the eastern side of Railway gate from the cover of a white car parked there. One of the shots hit the deceased who fell down and died instantaneously. No other truck or motor car was present there at the time. The complainant being afraid, reversed his car and went back to Nowshera where he gave information to the relatives of the deceased. They came to the spot and found the deceased lying dead. Although no accused was named in this report, it was, however, alleged that the complainant had "Come to know that last night employees of Customs Department were on -checking duty and the deceased has been murdered by their bullets".
9. It appears that thereafter the said Akhtar Ahmad also filed a complaint in the Court of the Assistant Commissioner, Nowshera on the 26th August 1967, but on the basis of the information lodged by him the police had in the meantime sub--mitted a challan in the Court of the same Magistrate.
10. As already stated the complaint was dismissed and the accused were, discharged in the police case on the 16th October 1968.
11. The objection in the Court of the Magistrate and in the High Court was that the - case could not be taken cognizance of without a sanction of the Government concerned under section 197, Cr. P. C.
12. The relevant provisions of section 197 are as follows: "(1) . . . . . When any public servant who is not removable from his office save by or with the sanction of the Central Government or a 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 Federation, of the President; and
(b) in the case of a person employed in connection with the affairs of a Province of the Governor of that province."
13. The Courts below, as already pointed out, had taken the view that the appellants in the present case being non-gazetted officers of the Customs Department were appoint able and removable by the Collector of Customs and, therefore, were not public servants removable from their respective offices save by or with the sanction of the Central or a Provincial Government.
14. The contention of the appellants, however, is that in taking this view the Courts below have failed to consider that the appellants were not being prosecuted in this case as Excise Officers but as Customs Officers and in connection with acts done or, purported to be done by them in the discharge of their duties as such Customs Officers, namely; the detection of smugglers. Their appointment as Customs officers was made under section 3 of the Land Customs Act of 1924 by the Central Government by Notifications Nos. 23-C dated 25-5-1954, 50-C dated 28-8-1954, asamended by Notification No. 61-C dated 12-10-1954 and No. S. R. O. 763-K dated 4-7-1960, published in the Pakistan Customs Manual at pages 200, 202 and 958, respectively. These notifications clearly stated that the Central Government is pleased to appoint-
(1) ------------------------------------------------------
(2) The Deputy Collector, and all Assistant Collectors, Superintendents, Principal Appraiser, Appraisers, Deputy Superintendents, Inspectors, jamadars, ,Havildars, Naiks, Sepoys and Lady Searchers of the Collectorate of Central Excise and Land Customs, Lahore, duly employed in the said areas to be the Land. Customs Officers for the said area.
15. Section 3 of the Land Customs Act is in these terms; "Appointment of Land Customs Officers.-(l) The Central Government may, by notification in the official Gazette appoint, for. Any area adjoining a foreign frontier and .Specified in the notification, a person to be the Collector of Land Customs and such other persons as it thinks fit to be Land Customs Officers.
(2) The Central Government may delegate to the Chief Customs Authority any power conferred upon it by sub--section (1) and the Chief Customs Authority may delegate to any Collector of Land Customs any power to appoint Land Customs Officers which has been so delegated to it."
16. It will thus be observed from section 3 that under sub--section (1) thereof the Central Government may itself appoint Land Customs Officers or may delegate the power of appoint--ment to the Chief Customs Authority and the Chief Customs Authority in his turn, may delegate to any Collector of Land Customs the power to appoint Land Customs Officers which has been so delegated to him to the present case the Noti--fications had been issued by the Central Government itself and it is clear from the Notifications that` the Land Customs Officers were being appointed by the Central Government itself.
17. No doubt this, is an appointment ex officio i.e. Whoever is for the time being employed as inter alia a Superintendent, Deputy Superintendent, Inspector, Jamadar, Havildar and Sepoy of .The Collectorate OT. Central Excise shall, by virtue, of holding that office, also be appointed as a Land Customs Officer for his respective area. Their appointment as- Laud Customs Officers is by virtue of the Notification issued by the Central Government and. Not by reason of the fact that they are appointed as Excise Officers by the Department of Excise. Thus, whoever is for the time being an Excise Officer in the areas specified in the Notifications will by virtue of the Notification be also entitled to act as a Land Customs Officer.
18. Neither the Collector of Excise nor the Collector of Customs would under these notifications have power to say that a particular officer, though holding office as an Excise Officer in any of the capacities mentioned in the notifications, will not be entitled to act as a Land. Customs Officer.
19. They would cease to be Land Customs Officers only when the notifica--tion itself is altered or with drawn.
20. The Courts below were, therefore, in our opinion, not right in taking the view that since as Excise Officers they were appoint able and removable by Collector of Customs and/or Excise, they were not officers who could only be removed by the Government. Neither the Collector of Customs nor the Collector of Excise could, as already pointed out, prevent them from acting as Land Customs Officers as long as they held the specified offices in the Excise Department. The question, therefore, of their being appointed by a delegate does not at all arise in the present case, for, by the notification above mentioned it is the Central Government itself which appointed them as Land Customs Officers. They would, as such Land Customs Officers be entitled, therefore, to the benefit of the provisons of subsection (4) of section 172-A of the Sea Customs Act which provides that "No prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central Government in writing, against any person in respect of anything done or purporting to be done in exercise of the powers conferred by subsections (1) and (2)."
21. Subsection (1) gives powers to a Customs Officer to search or cause a search to be made for dutiable goods if he has reasonable grounds for believing that any offence under the Sea Customs Act is being committed or is suspected to have been committed in respect of any goods to which the provisions of the said Act apply. Subsection (2) of section 172-A gives powers to Customs Officers to enter and search without warrant any premises or to make any arrest without any warrant of any person concerned in such an offence.
22. It is not necessary, however, to elaborate on the provisions of the Sea Customs Act, for, in the view that we have taken it is clear that the appellants were appointed as Land Customs Officers by the Central Government and therefore, were only removable from their posts by the Central Govern-- ment. The mere fact that they were appointed as such Land Customs Officers by virtue of holding other offices in other Departments does not have any bearing on the question as to whether they can be prosecuted for acts done or purported to be done in the exercise of their functions as such Land Customs Officers.
23. As pointed out by this Court in the case of S. M. H. Rizvi v. Abdus Salarn and another (PLD 1960SC358) if the purpose of section 197 of the Criminal Procedure Code is to protect public servants against vexatious prosecution by members of the public then it is necessary that the provisions of the said section should not be read in an unduly narrow sense so that the protection may be available to officers acting in the bona fide discharge of their duties.
24. It will, of course, be for the trial Court to decide as to whether the officers concerned were or were not acting in the discharged of their duties so as to bring them within the protection of the section.
25. There are two decisions of this court, namely; in the case of Matiar Rahman Dewan, v. The state (PLD 1958 SC (Pak.) 21) and Syed Ahmad v. The state (PLD 1958 SC (Pak.) 27) in which this court has already indicated the nature of acts in respect of which this protection may be claimed and, the manner in which the claim is to be adjudicated upon. It is not necessary that every act must be within the precise powers vested in the officers but the act complained of must still be reasonably connected with the performance of his duties and must have been performed with no private axe to grind.
26. 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 the view that the appellants were acting in the discharge of their duties then he should have stopped the hearing and called for the sanction. He had, it appears, acted only upon the allegations contained in the complaint of Akbar Ahmad to the effect that the officer against whom the complaint had been made were reported to be engaged on checking duty and it was in the course of this checking duty that they had fired the fatal shot.
27. The District Magistrate who set aside the order of discharge had on the other hand, after going through the entire record placed before him come to the view that the accused who are members of the Customs Staff were engaged on Customs checking duty on the night of occurrence when, as a result of firing during the performance of their duty, the deceased was hit and killed".
28. This finding which has not been disturbed by the High Court in revision would seem to bring the case of the appel--lants well within the category of cases where an officer can legitimately claim the protection of section 197, Cr. P. C. But in so far as even this finding is not based on any evidence it can have no higher value than a tentative opinion.
29. For these reasons while we would allow this appeal and set aside the order of the High Court and the District Magistrate, Peshawar, we would nevertheless direct the Assistant Commissioner, Nowshera to first take evidence on the point as to whether the appellants were at the relevant time engaged in the discharge of their official duties. If he comes to the conclusion that they were so engaged then he should, following the procedure indicated in the last mentioned two cases, stop the proceedings and give time to the prosecution to filet the sanction of the appropriate Government. The question of discharge will arise only when the prosecution fail to do so.