1. ABDUL HAFEEZ MEMON, J.---This appeal by leave of this Court arises out of the judgment, dated 14-3-1978 of the Lahore High Court in Criminal Revision No.738 of 1977, whereby the High Court ordered certain private persons to face trial under section 302/307/436/148/149 and the present two appellants, public servants, under section 109/302/307/436/148, 149, P.P.C. 1t may be pointed out at the outset that this appeal deals with the case of the two appellants public servants only.
2. The relevant facts are that on 22-4-1977 two processions were taken out in the city of Rawalpindi, one by the PNA (Pakistan National Alliance) and the 'other by PPP (Pakistan Peoples Party) with the permission of A.D.C.(G) Rawalpindi, which were assigned different routes and various Magistrates were deputed to accompany the processions. It was alleged that the procession taken out by the PPP was led by its leaders and its workers who were variously armed with lathis, hatchets and fire- arms and were using provocative slogans and that when the procession reached in front of the main office of the Jamat-e-Islami on DAV College Road, Ubedur Rehman and Abdul Hameed of Tent Service, fired pistol shots towards the Jamat's office while the other processionists started brick-batting and when the workers of Jamat-e-Islami retaliated and threw stones at the processionists they retreated but they were exhorted by Mehar Mohammad Nawaz DSP City and brought back to Jamat's office where Jaffer Khan and Mirza Mahmood from the processionists threw combustible material at the Jamat office as a result of which it caught fire followed by a big explosion in which Azhar Mirza lost his life and the office was gutted causing a loss of Rs.75,000.
3. The allegation in the complaint against the appellants was that they were accompanying the procession as magistrates and were present at the scene of occurrence but they did not take any step in declaring the said assembly to be illegal or asking them to disperse or stop them from making provocative speeches or going towards the office of Jamat-e-Islami and committing the acts. Two FIRS were lodged regarding the incident at P.S.D-Rawalpindi on the same day, one by Suhrab Khan ASI, being FIR No.105 under section 436/148/149, P.P.C. At 5-45 p.m. And the second being FIR No. 106, lodged by one Jaffer Khan at 6-45 p.m. On the same day. It is alleged that the respondent No.1 Qazi Rehmatullah, General Secretary of Jamat-e-Islami also sought to lodge a report with the police which was however not recorded ostensibly on the ground that the police was already seized of the matter. The respondent No.1 thereafter riled a private complaint before the Magistrate on 9-8-1977 after imposition of the Martial Law on 5-7-1977, under section 302/307/436/219/218/148/149, P.P.C., implicating the appellants and 18 other persons. The complaint was transferred to the Court of Sessions under section 190(3) of the Cr.P.C. The learned Sessions Judge held a preliminary enquiry in the matter and examined five witnesses, including the respondent No.1 Qazi Rehmatullah and thereafter by his order dated 23-10-1977, issued process against certain persons who were named in the complaint and assigned specific roles, and dismissed the complaint against the present two appellants public servants who were deputed to accompany the procession as magistrates and against certain other public servants, by holding "there is no evidence against the Magistrates accompanying the procession of doing any thing in execution of criminal intent. No doubt, they were present there at that time but it cannot be said that they abetted the crime or rendered any assistance to the processionists. Failure on their part to take timely action against the PPP leaders or workers cannot be termed as sharing common object with them in the commission of offence."
4. Respondent No.1 thereafter preferred a revision petition before the High Court against the dismissal of the complaint against two appellants herein and others. The revision was contested, among others, by the present two appellants, inter alia, on the grounds that the complaint filed by the respondent No.1 was not competent for not conforming to the requirements of section 265-C of the Criminal Procedure Code and was therefore liable to be dismissed in its entirety, that while the occurrence is alleged to have taken place on 22-7-1977, the complaint was inordinately delayed and lodged on 9-8-1977, even a month after the imposition of Martial Law in the country, and, secondly, the complainant was the office holder of a political party which was opposed to the political party, viz. PPP, whose procession is said to be involved in the occurrence, and therefore the proceedings were the result of political rivalry and factional vendetta between the parties. Yet another ground forcefully urged before the High Court was that the appellants being public servants, who were present at the scene of occurrence in discharge of their official duty, they were protected in the matter of such a prosecution in view of section 197, Cr. P.C. And therefore could not be prosecuted for the alleged offences in the absence of sanction by the Provincial Government.
5. The learned Judge in the High Court held the complaint to be maintainable and further on examining the provisions including sections 127 and 128, Cr.P.C. Arrived at the conclusion that by remaining unconcerned and not distinguishing themselves from the other members of the unlawful assembly the appellants herein, by their failure to perform the duties they were enjoined in law to accomplish had abetted the criminal acts committed by the assembly. With regard to the question of sanction the learned Judge by relying on the cases of Gill and another v. The King (75 Indian Appeals 41) and Syed Ahmad v. State PLD 1958 SC 27 and also mentioning section 132 Cr.P.C., seemingly took the view that on--account of appellants' illegal omission in the performance of their duty at the relevant time they could not escape their prosecution and allowed the revision petition and directed the appellants to face trial alongwith the other private persons for the offences referred to above.
6. Being aggrieved by the order of the High Court, the appellants herein filed a petition and were granted leave by this Court vide its order dated 25-3-1978. Thereafter other persons also filed petition against the same order of the High Court and were similarly granted leave by this Court by its order dated 10-4-1978. It may however be reiterated here that the present appeal is confined to the case of the present appellants Magistrates-public servants only.
7. Mr. Raja Mohammad Anwar learned counsel for the appellants contended that upon the allegation of facts as narrated in the complaint no prima facie case of abetment had been made out against the appellants who were present with the assembly in discharge of their official duty as public servants and had not committed any illegal act or omission in performance of their duties as held by the learned Sessions Judge, and therefore the learned Single Judge in the High Court was in error in holding the appellants to be prima facie liable for abetment and ordering their trial for the said offences alleged to have been committed by the members of the assembly.
8. Learned counsel next contended that according to the complaint itself and the observations made in the impugned order by the learned Single Judge in the High Court, the appellants Magistrates were deputed on duty by the local administration to accompany the procession and were as such present at the scene of occurrence in discharge of their official duty. Therefore, even if they were assumed, without conceding, to have failed to carry out their official duty as required of them, they were involved as public servants and as such could not be prosecuted or tried before the learned Sessions Judge without the Provincial Government according sanction for their prosecution under section 197, Cr.P.C. And therefore the High Court had erred in law in directing their trial for the said offences alongwith other private accused persons.
9. We find force in the last contention raised hereinabove by the learned counsel and, therefore, do not consider it necessary to go into the question whether upon the allegations of fact as narrated in the complaint, case of abetment had been made out against the appellants. Section 197, Cr.P.C.
10. Provides that when a public servant 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 of the appropriate government.
11. It cannot be disputed that the appellants were present at the scene of occurrence in discharge of their official duties as magistrates. Indeed, as mentioned in the order of the High Court, the learned Assistant Advocate-General appearing for the State had made a statement before the High Court during the proceedings in the revision petition that all the public servants were on their respective posts discharging their duties as public servants and in no other capacity, and even the High Court itself has proceeded on the basis that they were so present. The alleged liability of the appellants therefore clearly arose in relation to their being public servants. The allegation against them is that they omitted to do things which they should have done. Surely, therefore, if an act of commission amounts to a criminal offence and is covered by the bar of sanction under section 197, Cr.P.C., it cannot be maintained that when an offence is committed by an omission to do something that bar would disappear. An offence may consist either of commission or of omission and if an offence is said to have been committed either by commission or by omission while a public servant is acting or purporting to act in the discharge of his official dirty, section 197, Cr.P.C. Would equally apply in either case.
12. The High, Court has, however, held that no sanction under section 197, Cr.P.C. Was required in the case of the appellants on taking the view that the appellants in failing to take necessary measures on the occasion were not performing the act or omission which had a nexus with their duties on such occasion and were therefore not protected and sanction was not necessary for prosecuting them and m taking this view has relied upon the Privy Council's case reported as Gill and another v.
13. The King (75 Indian Appeals 41). This Court while dealing with the said Privy Council case in Sayed Ahmed v. The State (PLD 1958 SC 27) held as follows:-- "The rule that for the application of section 197, Criminal P.C., a valid test might be that the act alleged against the public servant should lie within the scope of his official duty, and that he should be able to claim reasonably that what he did, he did in virtue of his office, was laid down by the Privy Council in Gill's case (75 IA 41). This principle has been cited with approval in a number of important cases decided subsequently. Since it is clear that the commission of offence 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, is must be excess of the exact duties in question. Yet, it must be also an ac; reasonably connected with those duties in the sense that when the official is discharging or professing to discharge those duties, a reasonable person might assume that he could or might act in that way. That in our view is the sense in which the statement of the Privy Council in Gill's case viz., that the official should be able to claim reasonably that what he (lid, he did in virtue of his office, should be understood."
14. The question therefore is, as was held by this Court in the above case, whether the omission alleged against the appellants was such as was connected with the performance of their official duties. Indeed, the appellants in this case were present on the scene of occurrence in performance of their official duties. The omission to take action as it is contended they should have, was in our opinion, therefore, clearly relatable to the discharge of their official duties as public servants as failure to perform an official duty cannot be said to be disconnected with the question of performance of duty. That being so, the provisions of section 197, Cr.P.C. Were attracted in this case and cognizance of the offences allegedly committed by the appellants as shown in the complaint could not be taken except with the previous sanction of the appropriate Government as provided under section 197, Cr.P.C. We therefore do not agree with the view taken by the High Court and hold that in the absence of sanction by the appropriate Government under section 197, Cr.P.C.
15. Cognizance could not be taken by the learned Sessions Judge of the offences alleged in the complaint against the appellants and they could not be directed by the High Court to face trial for the said offences. On this view of the case, we set aside the impugned judgment of tile High Court.
16. On the parity of the same reason the order elated 23-It)-1977 passed by the learned Sessions Judge must also be set aside as he dealt with and decided the case in the absence of sanction of the appropriate Government. In the result, the complaint filed by the respondent No.1 against the appellants shall be deemed to be pending for disposal in accordance with the law. The, appeal is allowed accordingly