SHAFIUR RAHMAN, J: --The Federation of Pakistan has preferred two separate appeals as of right under Article 203-F(1) of the Constitution of the Islamic Republic of Pakistan, 1973 against the common judgment of the Federal Shariat Court dated 29th of June, 1989 disposing of thereby two separate petitions filed by the respondent; the one (Shariat Petition No.18/1 of 1987) seeking under Article 203-D of the Constitution a declaration to the effect that section 197 of the Criminal Procedure Code (Act V of 1898) is repugnant to the Injunctions of Islam while by the other (Shariat Petition No.19/I of 1987) a similar declaration in respect of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (Act No.XL of 1958). Both these petitions filed by the respondent were allowed by a common judgment. Hence these appeals.
2. In Shariat Appeal No.16 of 1989, the provision challenged was section 197 of the Criminal Procedure Code which reads as hereunder:-- "(1)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 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 the Province.
(2)The President or Governor, as the case may be, may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
3. The grounds on which this provision was challenged as contrary to Injunctions of Islam were, inter alia, as hereunder:-- (i)"That the embargo of prior sanction for prosecution of the public servants gives them a safeguard and protection and makes a distinction between the people of high status and the ordinary citizens. This is violative of the supremacy of religion and law, i.e. Qur'an and Sunnah.
(ii)That the Qur'an and Sunnah make every one equal before law whereas the said section makes the public servants above the law.
(iii)That the Qur'an and Sunnah give no immunity, safeguard or protection to any one, whosoever he may be, and even the head of the State may be challaned in the Court both in official and private capacities."
Reliance was placed on the following Quranic dispensations:-- "Sura 2 Verse 133.
Sura 4 Verses 58, 65,105,108 and 135.
Sura 5 Verses 8, 42, 43, 44, 45 and 47.
Sura 7 Verse 29. Sura 16 Verse 90.
Sura 28 Verse 4. Sura 38 Verse 26.
Sura 42 Verses 15, 40 and 43.
Sura 49 Verses 10 and 13.
Sura 57 Verse 25. Sura 60 Verse 8."
4.In Shariat Appeal No.17 of 1989, the. Provision challenged was subsection (5) of section 6 of the Criminal Law Amendment Act, 1958 (Act XL of 1958). The portion impugned before the Federal Shariat Court reads as hereunder:-- "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act: Provided that in cases where the complaint or report referred to in subsection (1) of section 4 is not accompanied by such sanction, the Special Judge shall, immediately on receipt of the complaint or report, address, by letter, the appropriate Government in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded: Provided further that no such sanction shall be required in respect of a case transferred under the proviso to subsection (3) of section 4 or by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof has been duly accorded or deemed to have been so accorded before the case is so transferred.
Explanation.--For the purpose of this subsection, "appropriate Government" shall mean the Government which at the time of the commission of the offence was the appropriate Government."
The same grounds were taken up for attacking this provision as were taken up for challenging section 197 of the Criminal Procedure Code. An objection with regard to the procedural nature of this provision was also raised but the same was rejected. On merits, the case was found equally covered by the grounds and the reasoning which were availed of for deciding the repugnancy of section 197 of the Criminal Procedure Code. A declaration in respect of this subsection was also granted with a direction to amend both the laws by the 1st of January, 1990 failing which both the provisions requiring the previous sanction or a sanction of the President or a Governor of a Province or any executive authority were ceased to have effect.
In the memorandum of appeal the two grounds urged before the Federal Shariat Court have been reiterated; the first being that both the provisions under attack are procedural in nature and hence do not come within the definition of `law' so as to be open for proceeding under Chapter 3-A of the Constitution. The other ground is that prescribing of prior sanction of the competent authority, the President or the Governor, or their nominee before launching a prosecution in respect of an act having colour of office was not un--Islamic.
5. A preliminary objection to the competence of such a petition on the ground that the provision attacked was procedural in nature and hence outside the purview of law as given in Chapter 3-A of the Constitution was rejected and the conclusion drawn on this question was as hereunder:-- "It is thus quite clear from the above that what has been barred is a vested right of an aggrieved person and what is conferred on the public servant and the Government are not the procedure but substantive rights under the two impugned sections. These provisions also deprive the Courts of law of their power to adjudicate upon the grievances of a citizen and worse of all is that the ouster is based on the option and discretion of the executive. Allah Subhanahu in verse 59 of Chapter IV, lays down as under:-- "O ye who believe obey Allah, and obey the Messenger and those of you who are in authority; and if ye have a dispute concerning any matter refer it to Allah and the Messenger if ye are (in truth) believers in Allah and the Last Day."
This verse provides the most concise but a complete Constitution for an Islamic State. It confirms sovereignty of Almighty Allah and dictates obedience of the laws of Allah as revealed through and explained and interpreted by the Holy Prophet (p.b.u.h.) and demands also of people the obedience of those in authority. However, if any citizen disputes the laws, commands or orders of the men in authority, he is entitled to go to Courts to get adjudicated his dispute in accord with the laws of Allah and His Prophet. The decision of such a dispute by those in authority is clearly excluded. The Courts in this respect are not part of the () and they have to consider whether the orders etc., of the ( ) are in accordance with Qur'an and Sunnah or not. This verse thus not only provides a guarantee for the independence of judiciary from the executive but enjoins the judicial review of the administrative acts on the touchstone of Qur'an and Sunnah. It is thus a guarantee of the rule of law through valid laws and lays down that not only every person has the right to get his dispute decided but only by a body which is not only not the executive authority but is independent of it. Thus any law circumventing the above concepts is repugnant.
It is argued that as according to section 197, Cr.P.C., and section 6(5) of Criminal Law Amendment Act, 1958 an aggrieved person, the prosecutor or even the Court has to first of all to go to an executive authority (,/- 2 1 J,, l ) in order to get permission to proceed against the public servant and as the President or as the case may be, the Governor can refuse that permission, these provisions are a clog on the right of an aggrieved person and a restriction on the jurisdiction of the Court and therefore repugnant."
On merits, the Court decided as hereunder:-- "It is narrated from the Holy Prophet that the previous nations were destroyed because they had different laws for high ups and the influential and others for the masses:-- (Sunan Abu Daud Vol. II, page 223 Print Beirut).
The Law Officers, appearing on behalf of the various Governments had no argument to advance in favour of these provisions. In fact, the Supreme Court in PLD 1981 SC 573 repeated its previous view mentioned in para.5 above in the case of Syed Ahmad."
The relief granted by the Court was in the following words:-- "The provision of the sanction of the President, the Governor of a Province or any other executi: a authority is, therefore, repugnant to Qur'an and Sunnah of the Holy Prophet and it is, therefore, desired that the President shall take steps so that the above laws are suitably amended before the 1st of January, 1990 failing which the provision requiring the previous sanction or a sanction of the President or a Governor of a Province or any executive authority shall cease to have effect."
The only concession made or shown in the judgment was that the legislature may provide levels of the various for as long as it does not deny or restrict the right of the person to go to the Courts or confronts him with such an obstacle as may amount to defeating that right.
6. It is conceded that the provisions which are under examination act as a clog or impediment of an aggrieved party against a State functionary to seek redress in a Court of law. In the matter of granting the permission or not granting it, the law provides no guidance nor is the aggrieved party even to be informed of the grant or refusal of such a sanction. As the provision stands, it on the one hand, amounts to stifling the prosecution of a genuine grievance and on the other hand protects absolutely the functionary who commits the wrong or affords the grievance. It is conceded that the remedy cannot be denied to one having a legal right nor can the examination of the grievance be shut out at the absolute discretion of the competent authority. Hence, these provisions, as they stand, are clearly violative of the Injunctions of Islam which make all public power a trust and hence all persons exercising it accountable to the persons suffering at its hands and this process of accountability can take place only in forums and avenues which are independent and regulated by properly set out guidelines for the prosecution and adjudication of causes.
7. There is even, in our Constitution, a provision empowering the legislature to set up one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of inter aha "matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant" [Article 212(1) of the Constitution]. It will be noted that both the impugned provisions of the law deal with wrongful acts performed by the named functionaries in the colour of their office. What is crime and not relatable to their official position on the basis of judicial precedent and interpretation of both these sections has already been kept outside the requirement of section as held in H.H.B. Gill and another v. The King (AIR 1948 Privy Council 128). It is only peripheral cases which can be related to the official functioning that fall in this category for which sanction has been made necessary.
8. During the course of the arguments, a reference has been made to a decision from the Indian jurisdiction in the case of Matajog Dobey and others v. H.C. Bhari and others (PLD 1957 SC (India)
160) to emphasize that the provisions of section 197 of the Criminal Procedure Code do not either violate equality or show want of rational discrimination in the matter of protection of one class of persons against the other. The observations relied upon are as hereunder:-- "Article 14, does not render section 197, Criminal P.C. Ultra vires as the discrimination is based upon a rational classification.
Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that section 197, Criminal P.C., vested an absolutely arbitrary power in the Government to grant or withhold sanction at their sweet will and pleasure, and the Legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion.
There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. If the Government gives sanction against one public servant but declines to do so against another, then the Government servant against whom sanction is given may possibly complain of discrimination. But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant."
9. In the observations relied upon, the provision of law has been protected on the ground that such protection from harassm ent is justified as it is based on reasonable classification. However, no answer is provided therein as to what happens to a genuine sufferer at the hands of a public servant. The harassm ent part can be taken care of by making the complainant who files or institutes frivolous matters liable to cost and damages as has been provided in section 544-A of the Criminal Procedure Code. Under the cover of a possible harassment a genuine sufferer cannot be denied the right to seek his remedy from an independent forum.
10. There are other cases referred to like R.C. Pollard v. Satya Gopal Mazumdar (AIR 1943 Calcutta 594), Matiar Rahman Dewan v. The State (PLD 1958 SC 21), Syed Ahmad v. The State (pLD 1958 SC 27) and Iqbal Hussain Siddiqui and 2 others v. The State (1970 SCM R 726) followed by Syed Mushtaq Hussain Shah Bokhari v. The State and another (PLD 1981 SC 573), all indicating that proceedings can start in a Criminal Court against the functionary unhampered till the stage when it is found that there is nexus between the act complained of and the official position enjoyed by him in which case and at that stage the sanction of the competent authority is to be sought for and obtained before proceeding further.
11. Such an unguided clog on the right of an aggrieved person to seek redress is clearly against Injunctions of Islam. As pointed out by the Federal Shariat Court, and as enjoined by the Constitution, a separate forum can certainly be provided for redressal against wrongful acts of public functionaries in the matter of crime committed in the colour of their offices, in the matter of wrongful civil acts in the form of damages and in the matter of administrative excesses in the form of declaration and injunction. With these observations we dismiss both the appeals extending the period for bringing about the change in the law till 30th June, 1992 failing which these provisions of law will cease to have effect.