MUHAMMAD ISMAIL AND 2 Other vs THE STATE AND ANOTHER

M. HAYAT JUNEJO, J.-----These two Appeals Nos. 79 of 1969 and 80 of 1969 arise out of the judgment dated 13th February 1969, of the learned Sessions Judge, Nawabshah, in Sessions Case No. 70 of 1968.

2. The three appellants in Criminal Appeal No. 79 of 1969 were all police officers at the time of the incident. Appellant No. 1, namely Muhammad Ismail, was posted as A. S. I. P. At Moro while the other two, namely, Muhammad Idris and Sultan A.I were working as constables at the same police station. All these three appellants have been convicted for offences under sections 395 and 342, P.

P. C. And sentenced to suffer R. I. For three years and two years respectively; both these sentences to run concurrently. The sentence of two years' R. I, under section 342, P. P. C. Appears to have been awarded through over--sight as the maximum provided under the said section is R. I. For one year only.

On an application under section 439, Cr. P. C. Filed by the State a rule was issued calling upon these three appellants to show cause as to why the sentences awarded to them should not be enhanced and this question also would be dealt with in this judgment.

3. The four appellants in Criminal Appeal No. 80 of 1969, namely, Haji Amir Bux, Qamar Din. Ghulam Qadir and Ismail Shah who were tried with the appellants in the connected appeal have all been convicted under section 395, P. P. C. And sentenced to suffer R. I. For three years. One Abdul Haq, police constable who was also tried in the same case died while the case was pending in the Sessions Court.

4. The prosecution allegations against the appellants briefly are as follows: Complainant Muhammad Parial, P. W. 1 is a Zamindar and owns 100 acres of agricultural land in Taluka Moro. He stays in village Muhammad Soho but also owns a house in the town of Moro. All the appellants in both the appeals were known to him previously. A few days before this occurrence the com--plainant was staying at his house at Moro, when appellant Sultan A.I police constable came there and informed -him that appellant Muhammad Ismail, A.S.I.P. Moro had called him. The complainant accompanied Sultan A.I to the police station where he met A. S. I. P. Muhammad Ismail. In the course of their conversation, Muhammad Ismail informed the complainant that one Amir Bux Shahani of Dadu District (appellant No. 1 in Criminal Appeal No. 80 of 1969) had made an application against him alleging theft of buffaloes and that the matter had been referred to A. S. I.

P., Muhammad Ismail for investigation. The latter read out the application to the complainant and stated that if he paid him a bribe of Rs. 1,500.00, the matter would be disposed of in favour of the complainant. Muhammad Pariai, however, turned down this offer. After a few days he learnt that a First Information Report for theft was registered against him at Moro police station. He obtained a certified copy of the First Information Report from the Court of Resident Magistrate, Moro and along with his two brothers who were also shown as co-accused in the said F. I. R. He filed an application in the Court of Sessions at Nawabshah for anticipatory bail, which was granted to him by the order dated 16-2-1967 (Exh. 5). The complainant got a certified copy of this order from the Court and naturally felt secure thereafter. But appellant Muhammad Ismail, A. S. I. P., apparently had other ideas.

5. On 23-2-1967, the complainant was sleeping in his house in his village when the appellants along with one Abdul Haq, police constable, who dial during the pendency of this case, came to his house at 1 a.m. And woke him up from sleep by calling him outside. The complainant went out and found that the appellant Muhammad Ismail, A. S. I. P. Was armed with a revolver while the three police constables accompanying him were all armed with '303 rifles. The remaining four appellants carried lathis. As soon as the complainant came out, appellant Muhammad Ismail slapped him on his face as a result of which the complainant's turban fell down on the ground. Immediately thereafter, appellant, Muhammad Ismail, ordered deceased Abdul Haq, police constable to tie up the complainant which was done by Abdul Haq. On commotion the two brothers of the complainant and his son P. W. Ahmed Nawaz came running. Appellant Muhammad Ismail then ordered appellant Sultan A.I police constable to tie up the two brothers of the complainant. This order was also obeyed. The complainant asked A.S.I.P. Muhammad Ismail, about the reason for this harassm ent, whereupon he was told that a report had been lodged against him and his brothers at the police station for theft of cattle belonging to appellant Haji Amir Bux. The complainant informed the A.S.I.P. That he had obtained order of anticipatory bail for himself as well as for his brothers, from the Court of Sessions at Nawabshah. To convince the A.S.I.P., the complainant asked his son Ahmed Nawaz to light a lamp and bring the order of bail from inside the house. Ahmed Nawaz, accordingly went inside and brought out the order which was shown to Muhammad Ismail.

The latter, however, after reading it threw it on the ground saying that the order did not bind him. By this time P. Ws. Muhammad Shall, Hussain Shah and Loung who are neighbours of the complainant also came to the house and saw the bail order being thrown on the ground by A.S.I.P. Muhammad Ismail. Thereafter, appellant Muhammad Ismail ordered the complainant and his brothers to show him their cattle-shed. He took all the appellants to this cattle-shed where 16 heads of cattle were found tethered. At the instance of A.S.I.P. Muhammad Ismail Haji Amir Bux took out 8 heads of buffaloes including a young one and brought them outside the house of complainant. Muhammad Ismail then told Haji Amir Bux to take away four of these buffaloes on which appellants Amir Bux, Qamardin, Ghulam Qadir and Ismail Shah took away four of the buffaloes belonging to the complainant with them. The remaining three buffaloes and a young one were taken away by A.S.I.P.

Muhammad Ismail and the three police constables with them. They also took the complainant and his brothers, A.I Nawaz and Shah Nawaz to Moro police station where they were all confined in the police lock-up. In the morning Ahmed Nawaz son of the complainant came to the lock-up and talked to Muhammad Ismail, who repeated his demand for a bribe of Rs. 1,500.00. After some bargaining this was reduced to the amount of Rs. 1,000.00. P. W. Ahmed Nawaz consulted his father complainant Muhammad Parial, who asked him to go home and bring the money which was paid sometime afterwards. After this payment the complainant and his two brothers were released from the lock-up at about 3 p.m. Leaving others behind complainant got into a taxi and came to Nawabshah in the evening. The next day he got a complaint drafted against all the appellants and presented the same before the Sessions Judge, Nawabshah. The complainant alleges that he lodged a direct complaint against the appellants in the Court of Additional District Magistrate, Nawabshah on 27-2-1967. This complaint is Exh. 6 on the record of this case but it does not show as to when it was presented before the learned Magistrate; nor does it show the date on which it was drafted.

6. After holding a preliminary enquiry the learned Magistrate issued process against all the eight accused named therein. They were subsequently challaned and committed to the Court of Sessions to stand their trial for the offences alleged against them. Before, however the case could proceed one of them, namely, police constable Abdul Haq died. The remaining seven appellants were tried by the learned Sessions Judge, Nawabshah, who convicted and sentenced them as stated above.

7. The defence of the appellants was one of denial. Appellant, Muhammad Ismail, admitted that he was A, S. I. P. At Moro at the time of this incident. In reply to a question whether he had gone with the other six appellants to the house of complainant at 1 a.m. On 23-2-1967 to commit dacoity of cattle, the appellant replied as under:- ---I had gone to the house of the complainant but I bad not committed dacoity of the cattle. I had taken into possession 3 buffaloes and one young one of the buffalo as suspected stolen property.- -- The appellant denied that he arrested the complainant and his brothers or that he wrongfully confined them. He stated that he had been falsely involved in this case, because complainant and his brothers were accused in a case which was registered at Moro police station on the complaint of appellant Haji Amir Bux. 1n reply to the question "have you to say anything else," appellant Muhammad Ismail filed a written statement which the learned Sessions Judge incorporated verbatim in his statement recorded under section 342, Cr. P. C. The relevant part thereof reads as follows: On 7-1-1967, I was Additional S.H.O. Moro and co---accused Haji Amir Bux lodged the F. I. R.

Regarding the theft of his 4 buffaloes. I have produced true copy of the F.I.R. In the lower Court statement. On 23-2-1967, I, along with constables Abdul Haque (deceased) Idris, and Sultan including co-accused Haji Amir Bux, went to the village of the com--plainant as I received information of presence of suspected cattle, in his cattle-shed. We found 4 buffaloes including one young one in the cattle shed of the complainant. But Haji Amir Bux, did not own them, and on interrogation complai--nant's brother A.I Nawaz could not give satisfactory explanation of the presence of cattle and his replies were also suspicious with regard to the ownership and character of those cattle. I, therefore, secured the cattle under section 550, Cr. P. C. In presence of mashirs, I produce the true copy of mashirnama m the lower Court statement. On the same day I impounded the secured cattle in the cattle pound. I have produced the original receipt in my statement in the lower Court. On 24-2-1967 one Abdul Hakeem Jesar lodged an F.I.R. Under sections 380, 411 and 215, P. P. C., before S. H. O. Mr. Itrat Hussain Shah. I have filed copy of the F. I. R. In my lower Court statement. After some investi--gation and identification of the cattle in the case filed by Abdul Hakeem S. H. O. Itrat Hussain Shah handed over cattle to Abdul Hakeem. Complainant Muhammad Parial is a history sheeter of police station Moro. The complainant and the prosecution witnesses are Rajmen and staunch political followers of Ghulam Mustafa Khan latoi, Member of National Assembly, who holds influence and power in Moro Taluka. The complainant and Ghulam Mustafa Jatoi had impression that I and co-accused police officers were instruments and getting the cattle to Abdul Hakeem. This Abdul Hakeem had filed a dacoity case against Ghulam Mustafa Jatoi, brother of Ghulam Mustafa Jatoi M. N. A. Due to this grudge as well as political enmity between Haji Rehmatullah and Ghulam Mustafa Jatoi, we the police officers had also been implicated along with private co-accused Haji Amir Bux and three others. Complainant's party has grudge against me and my staff as I secured 4 buffaloes under section 550, Cr. P. C. Most of the witnesses are related inter se and the rest are also interested as Ghulam Mustafa Khan Jatoi had made them to give false evidence against us. Ghulam Mustafa Khan Jatoi has also grudge against me as I never submitted myself to his influence in my normal duties as Sub-Inspector of Police of Moro police station. I am innocent and the case is false."

Along with this written statement, Muhammad Ismail produced a certificate which was alleged to have been signed by S. H. O. Moro and was to the effect that the complainant was a history--- sheeter. The appellant also filed a copy of the First Information Report alleged to have been filed by Haji Amir Bux on 7-1-1967, mashirnama dated 23-2-1967, regarding the securing of three buffaloes and a young one, receipt of the Pound Munshi that these animals were sent to the Pound on 23-2- 1967 at 6-30 p.m., F. I. R. Lodged by one Abdul Hakeem on 24-2-1967, a letter addressed by S, H. O.

Itrat Hussain Shah of Moro to Pound Munshi asking him to handover these animals to the said Abdul Hakeem and an entry from the roznamcha of Moro police station purporting to show that on 23-2-1967 one Fateh A.I Shah a deserter from army was also in the lock-up of Moro police station.

Appellants Muhammad Idris and Sultan A.I admitted that they were police constables at Moro police station at the time of the incident and that they had accompanied A. S. I. P. Muhammad Ismail. They adopted the statement of this appellant.

Appellant Haji Amir Bux stated that he had been falsely implicated on account of enmity as he had filed his F. I. R. For theft of cattle, wherein he had shown the complainant and his brothers as accused persons. He admitted in both the Courts that he had gone with A. S. I. P. Muhammad Ismail to the house of complainant; but gave contradictory explanations in respect thereof. The version of appellant Amir Bux in his statement recorded by the committing Magistrate was as follows: "On 23-2-1967, I had accompanied the S. H, O. Muhammad Ismail to the house of the complainant and his brothers. The police secured my stolen buffaloes from the house of com--plainant."

At the trial, however, he completely changed his version and stated as follows:- "I had accompanied accused Muhammad Ismail in the morning with whom deceased Abdul Haq, accused Muhammad ldris and Sultan were with him but other accused were not with us and went to village of P. W. A.I Nawaz and complainant Muhammad Parial. Accused Muhammad Ismail called out complainant but he was not there. His brother A.I Nawaz came outside his house.

Accused Muhammad Ismail told A.I Nawaz to show his cattle shed. We all went to the cattle shed.

Accused Muhammad Ismail asked me if any stolen buffalo were there and I replied in the negative.

Accused Muhammad Ismail then took A.I Nawaz aside and talked to him. There--after, he seized three buffaloes and one young of it as suspected stolen property. Accused Muhammad Ismail and his constables took away that cattle and I returned home. I had already filed a theft report at Moro Thana for 4 buffaloes."

The remaining three appellants, namely, Qamardin, Ghulam Qadir and Muhammad Ismail Shah denied having accompanied Amir Bux or Muhammad Ismail; and stated that they were falsely involved as they were witnesses against the complainant and his brothers in the theft case filed by Amir Bux; and that the witnesses had been set up against them by one Ghulam Mustafa Jatoi, who was a Member of the National Assembly of Pakistan. No witness was examined in defence by any of the appellants.

8. Mr. Sami Ahmed, the learned counsel for the appellants, however, submitted an application under section 428, Cr. P. C. For examining S. H. O. Itrat Hussain Shah of Moro police station in defence of Muhammad Ismail. I had kept this application for consideration at the time of hearing of the appeal and have, accordingly heard the learned counsel on this point as well. Section 428(1) of the Criminal Procedure Code reads as follows:- ---428(1).-In dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Sessions or a Magistrate.---

9. The necessity for taking additional evidence under this section must be examined on the particular facts of each case and A no hard and fast rule can be laid down. However, the principles governing such cases have been reiterated by the Federal Court of Pakistan in the case of A.I and another v. The Crown (PLD 1952 FC 71), wherein Cornelius, J., as his Lordship then was, observed as follows:- ---A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either, not avail--able at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control, or by reason of misunderstanding or mistake.--- These weighty observations have been consistently followed by this Court. I may in this connection refer to the case of Ghulam Muhammad and others v. The State (PLD 1957 Lah.263), and in particular to the following observations of Ortcheson, J.:- "In A.I v. Crown PLD 1952 FC 71, the principles governing such cases as the present have been discussed, and the following observation of Cornelius, J., goes to the root of the matter:- ---A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either not available at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control, or by reason of misunderstanding or mistake.--- Taking the above circumstances into consideration we do not consider this a fit case for allowing the production of the additional evidence sought to be relied upon by the prosecution.

Dr. Tasadduque Hussain for the defence also lodged an application for the examination of Mr. Ghulam Abbas, Additional District Magistrate, Sheikhupura, Mr. Zulqarnain, Magistrate and Mr. Ismatullah S. D. O. Mohlan, who are stated to have been present when the gunfire was heard and when the Superintendent of Police sent Shaukat A.I, Head Constable, either to the Police Station or at the village. Again, however, it cannot be said that the evidence now sought to be produced by the defence was not available at the trial. No attempt was apparently made at summon the witnesses in question, nor was any request made to the Court for an adjournment to produce them.

Both the applications are accordingly rejected."

10. The learned counsel for the appellants has not been able to advance any reason as to why the evidence which is sought to be adduced by examining S. H. O. Itrat Hussain at this stage was not led at the trial if it was available at that time. S. H. O. Itrat Hussain was then posted in the same district and could have been easily summoned. It appears that the evidence which is sought to be led now is an after-thought, and if this application is granted at this stage it would virtually amount to an invitation for perjured evidence. It was for these reasons that I informed the learned counsel at the time of hearing of the appeal that this application would be rejected.

11. Before I discuss the evidence led by the prosecution in this case it is necessary to dispose of a preliminary objection raised by Mr. Sami Ahmad regarding the validity of the trial without the requirement of sanction under section 197, Cr. P. C. The learned counsel appearing for appellants 1 and 3 in Criminal Cr. Appeal No. 79 of 1969 contended that the appellants were police officers engaged in the performance of their official duties and, accordingly, their prosecution required sanction by the competent authority. This contention was also raised by Mr. Haji Muhammad Memon appearing for appellant No. 2.

12. Section 197(1) provides as follows :- "197(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 that Province."

It would be seen that section 197 applies to those public servants who are not removable from their office without the sanction of the Central or the Provincial Governments. The learned counsel for the appellants, however, invited my attention to a case of this Court, namely Zaheer A.I v. The State (PLD 1965 Kar. 180), wherein Faruqui, J., while considering the case of a peon employed in the office of Chief Election Commissioner observed as follows:- "The petitioner holds a post in the office of the Election Commissioner which is a civil post in connection with the affairs of the Center. The mere fact that he can be removed from his office by the head of the department does not disentitle him from the protection of section 197, Cr. P. C. The head of the department is merely a delegate of the Central Government. The act of the delegatee is to be considered an act of the delegator. It follows that when an order of removal of a Class IV servant is made by the head of the department that act of the department is in consequence of the delegation made to him by the Central Government. The act, therefore, becomes that of the Central Government. If any authority is needed reference may be made to the case of Newbould v.

Emperor AIR 1936 Lah. 781. Mr. Murtuza Hussain, the learned counsel for the State conceded that this was the correct position in law."

It was not pointed out to Faruqui, J., that the Single Judge case of the Lahore High Court which he referred to as an "authority" was in fact overruled by the Federal Court of India in the case of Afzalur Rahman and others v. Emperor (A I R1943 FC 18), wherein while considering the case of a Sub- Inspector of Police, an Assistant Sub-Inspector of Police and an Excise Sub-Inspector, their Lord-- ships observed as follows:- ---We deal first with the objection under section 197, Cr. P. C. Taking it that the appellants have been accused of an offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, the question for determination is whether they are persons not removable from office save by or with the sanction of the Provincial Government. It is not disputed that according to the statutory rules and notifications set out in the judgment of the High Court, the police officers before us can be dismissed by the Deputy Inspector-General of Police and the Excise Sub-Inspector by the Excise Commissioner. But the appellants contended that such dismissal by a subordinate officer like the Deputy Inspector-General or the Excise Commissioner must be treated as an act of the Provincial Government itself, because the Deputy Inspector-General in the one case and the Excise Commissioner in the other case only act on behalf of the Provincial Government under powers delegated to them. In this view, they invoke the principle embodied in the maxim qui facit per alium facit per se and contend that as the subordinate authorities can dismiss them only as agents of the Provincial Government, they must be deemed to be removable only by or with the sanction of the Provincial Government, within the meaning of section 197, Cr. P. C. They lay stress upon the use of the very term `delegate' in para. (e) of subsection (2) of section 7, Bihar and Orissa Excise Act, when it provides for the Local Government delegating to the Excise Commissioner all or any of the powers conferred upon the Local Government by or under that Act. It was recognized that the language of section 7, Police Act (V of 1861) would not fit in with this argument, as under section 7 of that Act, the power of dismissal is conferred by the Act itself upon the Inspector-General, Deputy Inspector-General, etc. But it was argued that whatever the position might have been before 1937, the matter now rests upon section 241(i)(b), Constitution Act, which vests the power of appointment in the Governor `or such person as he may direct'. Reading this paragraph of section 241 with subsection (2) of section 240, it was sought to maintain that the power of dismissal (like the power of appointment) must also be deemed to vest in the Governor and that whenever it was exercised by a subordinate authority, it must be held to have been exercised by such authority under the direction and therefore only as the agent of the Governor. Authority was found in support of the above line of argument in a judgment of Courts-Trotter, J. (as he then was) in AIR 1917 Mad. 344, which was followed by a Single Judge of the Rangoon High Court in 12 Hang. 530 = AIR 1934 Rang. 238.

With great respect to the learned Judges with whom this line of argument has found favour, we are of opinion that the argument is fallacious. This provision which, in one form or another has appeared in successive Codes of Criminal Procedure for more than 70 years now, must be interpreted in the light of certain well-known features of the administrative system prevailing in India. Otherwise, as pointed out in 58 Mad. 787 there is the danger of our ignoring the policy of the Legislature in limiting the class of officers entitled to this protection and of making section 197, available to all public offices. As early as in the Government of India Act, 1858, it was recognized that the power of making appointments to officers in India was divided and distributed amongst several authorities in India and existing usage and regulations relating thereto were continued, subject to the reservation of power to the Secretary of State-in-Council to make regulations: See sections 30 and 37. In exercise of this power, rules and regulations have been framed from time to time dividing the superior and the subordinate services into various classes and empowering different authorities to appoint and dismiss offices of the different classes. Section 96-B(2), Government of India Act, 1919 recognized the rules of this kind then in force and provided for the Secretary of State making rules in that behalf and also for delegation by him of the rule-making power to the Governor-General-in-Council or to a Local Government. As enactments both of the Indian Legislature and of Local Legislatures and sometimes provided (e.g., the provisions of the Police Act, 1861 and the Bihar and Orissa Excise Act, 1915, referred to above) for appointments to and dismissal from various offices, that system also was recognized in the same section of the Government of India Act, 1919. The provisions of sections 241 and 240(2), Constitution Act of 1935, should also be understood in the light of this long standing practice. The provisions relating to appeals contained in paras. (b) and (c) of subsection (3) of section 241, clearly contemplate that in some cases the dismissal may be by an authority subordinate to the Governor, if that had been the pre-existing practice.

Rules of the kind above referred to have all along provided that certain class of officers can be dismissed only by or with the sanction of the Local Government and it is to this class of officers that the Legislature must have intended to limit the protection given by section 197, Cr: P. C. In this view, it is unnecessary to consider (i) whether and how "far the maxim qui facit per alium facit per se which belongs to the ordinary law of principal and agent, can be imported into the deter-- mination of questions relating to the position of public officers inter se, when both officers are acting only in their official capacity and (ii) whether even the application of this maxim will help the appellants in the case. It has always been recognized that even in determining questions involving the relationship of a public servant to the Crown and the liability of the State for acts of public officers, the principles of the ordinary low pf agency cannot be applied except with considerable qualifications. As to the State of judicial authority bearing upon section 197, Cr. P: C. We may mention that the decision of Courts-Trotter, J., has been dissented from in the Madras High Court itself by a Division Bench in 58 Mad. 787 and a Division Bench of the Allahabad High Court in 48 All.

264. The decision of Courts-Trotter, J., as well as the Single Judge's judgment in AIR 1934 Rang. 288 have in effect, though not in terms been disregarded by a Full Bench of the Rangoon High Court in 13 Rang. 540. We are of opinion that there is no force in the objection based on section 197, Cr. P. C."

13. In this connection I may also refer to some later decision on the point. In Emperor v. A. G. R.

Pathan (AIR 1946 Bom. 86), it was held by a Division Bench of the Bombay High Court consisting of Divatia and Bavdekar, JJ., that section 197, Cr. P. C., . Does not apply to a case of an Assistant Price Inspector appointed by the District Magistrate under the Defence of India Rules. Their Lordships observed as follows: ---Section 197 applies only to public servants who are not removable except with the sanction of the Provincial Govern--ment. Where the Provincial Government under section 2(5), Defence of India Act, grants to the District Magistrate, who is an authority subordinate to itself, power to appoint and remove Assistant Price Inspector which power can be exercised independently of the Provincial Government, it is not necessary for the District Magistrate to take the sanction of the Provincial Government for the removal of such officer under him. It, therefore, follows that sanction of the delegating authority (Provincial Government) under section 197, Cr. P. C. Is not necessary before the Assistant Price Inspector can be prosecuted for any offence committed by him in the discharge of his duty.--- Similarly in Maqbool Hussain v. Government of U. P. (AIR 1947 Oudh 210), it was held by a Division Bench that in case of a Police Sub-Inspector who was removable from service by Inspector- General of Police without sanction of Provincial Government, sanction under section 197, Cr. P. C.

Was not necessary. Inpara. 16 of the judgment it was observed as follows:- "Section 197, Cr. P. C. Requires the sanction of the Governor or some higher authority only in the case of public servants who are not removable from office save by or with the sanction of the Provincial Government or some high authority. In view of the finding arrived at by us on the first point raised it is clear that the appellant could be removed from service by the Inspector-General of Police without the sanction of the Provincial Government. This was so under section 7, Police Act, both as it stood before its amendment by the Adaptation of Indian Laws Order, 1937, and also as it now stands after the amendment. The appellant, therefore; cannot avail himself of the protection referred to in section 197, Cr. P. C."

14. Mr. Kazi the learned Additional Advocate-General has drawn my attention to Police Department Delegation of Powers Rules, 1958 which were framed by the Governor of West Pakistan in exercise of the powers conferred on him by clause (i) of Article 2 of the Laws (Continuance in Force) Order, 1958, read with sub-clause (b), clause (2) of Article 182 of the late Constitution of 1956. Rule 2(1) provides as follows:- "Notwithstanding any provision to the contrary in any service rule for the time being in force in the Province or any part thereof, the authorities for purposes of appointment, appeals, punishments, transfer and controlling travelling allowance, in respect of each person holding post mentioned in column 2 of the Schedule annexed herewith shall be such as are specified against the post of such person in columns 3 to 8 of the said Schedule".

Entries at Serial Nos. 8, 9, 10 and 11 in the Schedule show that the Assistant Inspector-General of Police or the Superintendent of Police would be the appointing as well as dismissing authority for Sub-Inspectors, Assistant Sub-Inspectors, Head Constables and Constables in the Police Department. Even appeals against the orders of their dismissal would lie to the Additional Inspector: General of Police, who is an authority subordinate to the Provincial Government.

15. This being the position, a learned Judge of this Court Rahim Bux Munshi, J., while considering a similar case namely, Yaqub v. The Crown (PLD 1958 Kar. 483), held that an Assistant Sub-Inspector of Police and a Police Constable do not belong to the class of public' servant contemplated under section 197, Cr. P. C. The learned Judge, however, gave no reasons for his conclusion which was stated in the following terms: ---This section provides for sanction for prosecution of a particular class of public servants. The appellants obviously do not belong to that class. Therefore, no sanction in their case was required by law.--- Attention of Faruqui, J., was not invited to this judgment of this Court while his Lordship was considering the case of Zaheer AU v. The State relied upon before him by the learned counsel for the appellant.

Mr. Sami Ahmed, the learned counsel for the appellants has drawn my attention to Articles 174, 176 and 178 of the 1962--Constitution and urged on the basis thereof that the position in this respect has changed after this Constitution came into force. I do not find any substance in this contention of the learned counsel as there is nothing in these articles to justify the inference drawn by the learned counsel. It is accordingly, clear that section 197, Cr. P. C. Does not apply to offences alleged to have been committed by public servant who are removable from office by some authority subordinate to the Central or the o Provincial Governments, although such authority may only be acting in the exercise of a power delegated by the concerned Government.

16. I would now consider the other question, namely, whether the police officers involved in this case could be said to have been acting or purporting to act in the discharge of their E official duties. In this connection Mr. Sami Ahmed, has relied on the authority of tire Supreme Court, namay, Matiur Rehman Dewan v. The State (PLD 1958 SC (Pak.)).

17. The words "act done or purporting to be done in execu--petition of duty as servant of the Crown" appearing in section 270(1) of the Government of India Act, 1935, were interpreted by the Federal Court of India in the case of Dr. Hort Ram Singh v. Emperor ((3) AIR 1929 B C 43), wherein it was held that when a public servant simply embazzles some property entrusted to him and thereby commits a criminal breach of trust under section 409, he is not doing an act nor even purports to do an act in execution of his duty. This decision was approved by their Lordships of the Privy Council in the case of H. H. B. Gill and another v. The King (PLD 1958 SC (Pak.) 27), where it was observed that the words "in respect of any actor act purporting to be done in the execution of his duty" used in section 270 of the Government of India Act, 1935, appeared to them to have precisely the same connotation as the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" in section 197, subsection (1), Cr. P. C.

Their Lordships proceeded to observe as follows: "In the first place their Lordships find it impossible at least in relation to an offence of this character to distinguish between section 270 and section 197. The words in section 270 in respect of any act done or purporting to be done in the execution of his duty as a servant of the crown appears to them to have precisely the same connotation as the words in section 197(1) any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'.

It is idle to speculate why a change of language was made. But, if a temporal meaning is not given, as in their Lordships' vies 4 clearly should not be given, to the words in section 197, `while acting, etc.' it is in their opinion impossible to differentiate between the two sections. In the consideration of section 197, much assistance is to be derived from the judgment of the Federal Court in (1939 FC R 159) and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar. J. Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the stops of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act nor does a Government Medical Officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he doss, he does in virtue of his office."

18. This statement of the Privy Council was elucidated by our Supreme Court in the case of Syed Ahmed v. The State (PLD 1958 SC (Pak.) 27), wherein it was observed as follows:- ---The principles which are applicable to the decision of the question before us are plain. Several of them have been correctly stated in the judgment of the learned Sessions Judge. The rule that for the application of section 197, Cr. 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 be 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 I A 41). This principle has been cited with approval in a number of important cases decided subsequently. Since it is clear that the commission of offences 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, it must be in excess of the exact duties in question. Yet it must also be an act 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 vies is the sense in which the statements of the Privy Council in Gill's case vie., that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be understood."

Accused Syed Ahmed in this case was District Traffic Superintendent of the East Bengal Railway. He was alleged to have used foul words of abase towards complainant Muhammad Yaqub, who was his direct subordinate working as crew-in-charge on the same railway and also assaulted him and thereafter wrongfully confined him. Their Lordships proceeded to observe as follows: "We observe that the Courts below have consistently emphasized the assault as being no part of the duty of the accused person in the case, and therefore, they have held that section 197 of the Cr.

P. C. Does not apply to the case. Our view is that the assault and hurt which are alleged are of a minor nature, and are connected directly, and inseparably with the discharge of the accused's duty, which was that of super--vising the performance of his duties by the complainant Muhammad Yaqub. The facts in the complainant seem clearly to show that the accused was greatly displeased and provoked by the slowness and inefficiency which Muhammad Yaqub was displaying in dealing with the several passengers who were brought to him by, or in the presence of, the accused. There is no indication that the accused bore any enmity towards the complainant.

But it seems to us to be difficult to say fn respect of the charges of wrongful restraint and confinement, which pima facie do not appear to be wholly false or grossly exaggerated, that the accused could reasonably claim that he acted in the discharge of his official duty when he ordered the Station Master to put Muhammad Yaqub under lock and key. The Station Master obeyed the direction, by keeping Muhammad Yaqub under detention though apparently he was not locked up.

We do not see how the appellant can claim that he gave this order in virtue of his office.

Consequently, we consider that the charges under sections 341 and 342 of the P. P. C. Are not such as require the sanction of the appropriate Government before they can be proceeded with."

Their Lordships in this case were considering the case of assault by a superior officer on his subordinate on account of slowness and inefficiency of the latter, as regards Government work.

The accused did not have any enmity with the complainant nor did he have any axe of his own to grind in assaulting the complainant. It was on account of these reasons that their Lordships held that the assault and hurt which were of a minor nature, were connected directly and inseparably with the discharge of the accused's duty which was that of supervising the performance of duties by the complainant. It was in the background of these facts that the Supreme Court was of the opinion that on the charge of assault sanction under section 197, Cr. P. C. Was necessary; but in spite of these circumstances their Lordships held that accused could not claim that he wrongfully confined the complainant in the discharge of his official duties.

19. That the case of a superior officer assaulting his subordinate on account of slowness or inefficiency is on a different footing than that of an officer misbehaving with a member of the public can be seen from the following observations from a later authority of the Supreme Court in the case of S.M.H. Rizvi v. Abdus Salam and another (PLD 1960 SC 354) :- "As this Court observed in its judgment in the case of Syed Ahmad, it must not be thought that thereby judicial approval is being given to any practice of superior officers assaulting their subordinates on every occasion that they find them guilty of inefficiency. That is a degrading form of behavior, and is calculated to destroy rather than to preserve discipline. Should the practice begin to be wide spread, the Government, which has the over-all control in almost all respects, over the behaviour of its servants in any Department, have ample power to check it either by departmental action, or by the method of sanctioning prosecution. The purpose of section 197, Cr.

P. C. Has often been declared in judicial pronouncements to be to protect public servants against vexatious prosecution by members of the public. That may possibly be one object, but a more correct view would appear to be that the Government which has complete control over its officials while engaged in the performance of their official functions, is by that section also empowered to deal at its option with matters of excess 1n the discharge of those functions, provided that the excess is within the scope of those functions, and the behaviour cannot be thought to constitute an independent injury or offence falling within the ordinary law and wholly outside the depart--mental authority of the Government. Thus, if a member of the public suffers an injury at the hands of a public servant, and this need not necessarily be by violence, but is much more frequently the result of faulty judgment or even defective outlook in the exercise of powers, it is always possible for the Government to visit the offence of the public servant within its disciplinary power and at the same time to compensate the member of the public for his loss or damage. The case is even simpler where the parties are both employees in the same Department of the Government. There, unless the excess of behaviour be entirely outside the scope of the functions of the offending party, whether he be the superior or the subordinate the Government has complete authority to deal with the matter within its disciplinary power. The purpose of section 197, Cr. P. C. Appears to be to define a sphere in which departmental or administrative law should be applicable at the option of Government to the conduct of public servants. The limits of the applicability of such administrative law are to be set in each case by the ordinary Criminal Courts, on the basis of their opinion as to whether the action in question was performed by the offending official while acting or purporting to act in the discharge of his official duty'."

Their Lordships in this case were considering the case of an Executive Engineer in East Bengal Railway, who had assaulted his Establishment clerk. The absence of personal animosity was again emphasized together with the fact that the behaviour of the accused complained of was intended to act as a corrective for clerks who were working unmethodically.

20. I shall now consider the authority relied upon by Mr. Sami Ahmad, namely that of Matiur Rehman Dewan v. The State. In this case Matiur Rahman was an Inspector of Prices and Supplies and acts complained of arose directly from action taken by him in his official capacity with a view to prosecute the complainant for black-marketing. Their Lordships took the view that the act of the accused in having a trap to catch the complainant for black-marketing was a part of his duty and in that process if he recovered marked notes from his person it cannot be said that he was acting outside the scope of his authority. As regards the allegations of theft and assault their Lordships were of the opinion that the accusations of theft were left in a state of doubt, as the following observation on page 24 of the judgment would show:- ---It should be mentioned here that while in the complaint it had been alleged by Gopinath P.I that Matiar Rahman Dewan `hurled blows on his nose and face and broke away the spectacles in his eyes', the evidence produced in the preliminary enquiry tended to show that the assault was by no means so severe. Even Gopinath P.I himself when deposing prior to the issue of summons was only able to allege a single blow, but two of his witnesses A.I Ahmed and Dr. M. A. Ahmed merely said that Gopinath P.I was assaulted and his spectacles were broken, while Dr. M. A. Hussain said that Matiar Rahman Dewan and a constable gave pushes to Gopinath P.I and his spectacles fell down.

The evidence was also discrepant as to the allegation of theft. While Copinath P.I said he handed over eight Rs. 1C0.00 notes, and only seven were entered in the memorandum prepared on the spot, one of his witnesses said be counted up to six notes only. As we have held in the case of Sled Ahmad PLD 1958 SC (Pak.) 27 decided today, this evidence is admissible for the ancillary purpose of considering whether the case fall under section 197, Cr. P. C. We conclude that the violence offered by Matiar Rahman Dewan to Gopinath was of a comparatively minor type, and that the accusation of theft was left in a state of doubt.---

21. Considering the evidence in the present case I find that the allegations of dacoity, assault and wrongful confinement have been supported by as many as six witnesses of whom three are completely independent and disinterested. The allegations are also that Muhammad Ismail had come to the house of the com--plainant to extort a bribe arid for that purpose he slapped the complainant and arrested him even after the order of the Sessions Court whereby anticipatory bail was granted to the complainant, was shown to him. The appellant thereafter took away 8 heads of buffaloes and also tied up the complainant and his relations and thereafter confined them in the police lock-up for more than 14 hours. In view of the nature of the allegations as well as the evidence led in support thereof, the appellants cannot contend that what they did was in the purported discharge of their duties, as the official status of the appellants in this case furnished only the occasion or opportunity for these offences.

22. It has been held in several cases that sanction under section 197, Cr. P. C. Would not be necessary for prosecution of a public servant for offences similar to those in the present case. It may with advantage refer to some of them.

23. In Sakuntala Bai v. Venkatakrishna Reddi, one Sakuntala Bai travelled in a, bus from Pondichery to Guddalore. When the bus stopped at Reddichavadi Customs Chouki for inspection by the customs authorities, accused Venkatakrishna Reddi called the complainant and asked her to remove the gold bangles and the gold `golusu' worn by her. On her refusal to do so, the accused is said to have abused her and also assaulted her by giving a slap on her face. He thereafter, removed the gold bangles and `golusu' from her hands and detained her in the Chouki till 8-15 p.m.

She was, however, released after she paid a fine of Rs. 1,000.00. She filed a complaint before a Magistrate 9 days after this occurrence. A preliminary objection was taken by the accused and it was contended that he could not be prosecuted by the District Magistrate as the requisite sanction under section 197, Cr. P. C. Had not been obtained. This contention found favour with the District Magistrate with the result that the complaint was dismissed and the accused was discharged. On a revision petition being filed by the complainant in the Madras High Court, it was held by Ramaswa my, J., that the act of beating the com--plainant was not an instance of "an act done or purporting toe done in execution of duty as a servant of the Crown". In the same case it was further observed as follows:- "A prosecution for an offence arising out of the abuse of official position by an act not purporting to be official did not require sanction under section 197, Cr. P. C."

24. In Aminul Haque v. Abdul Wahab alias Wahab Mia (PLD 1956 Dacca 250), a Division Bench of the Dacca High Court held that a Sub---Inspector of Police charged with abetment of dacoity and arson cannot claim that he did this in virtue of his office.

25. In A. K M. Reza v. The State (PLD 1958 Dacca 111), the accused a Sub---Inspector and two constables of the police force went to the house of a villager in connection with a case of theft in order to seize the stolen property, but in the process they beat the complainant. It was held that what the accused did had no connection with the discharge of their official duty and sanction under section 197, Cr. P. C. For the prosecution of the accused was not at all necessary.

26. In yet another Division Bench case of the Dacca High Court, namely, Muhammad Shahid and another v. The State (PLD 1963 Dacca 413), it was held that no sanction under section 197, Cr. P. C.

Was necessary where certain police officers in their anxiety to recover a Rs. 100.00 G. C. Note which was being smuggled out of Pakistan and was, thereafter swallowed by the smuggler, cruelly beat the smuggler thereby causing his death. I cannot resist the temptation of quoting the following passage from the judgment of Sattar, J. As his Lordship then was: ---An officer to be worth his salt is expected to act strictly in discharge of his duties and has a right to do so but he must act within the bounds of the law. He cannot, however, claim to act tyranically even in discharge of his official duties. To concede such a right would bring about disorder where order should be the goal of everybody. If the deceased was trying to smuggle Pak-currency out of this country, Hedayaetullah and Shahid had every right to proceed against him according to law and see teat the penalty provided in the law was meted out to him. They had, however, no right to take the law into their own hands and punish the offender according to their liking in disregard of the provisions of law.--- Although these observations were not in regard to the point of sanction under section 197, Cr. P. C.

They are very much relevant to the facts of the present case.

27. Lastly I would refer to one more Division Bench case of the same High Court, namely, Rokunuddin Bhuiyan and others v. The State (PLD 1967 Dacca 281), wherein their Lordships after referring to the Supreme Court authority of Syed Ahmed v. The State; A. K. M. Reza and others v. The State and the case of Amrik Singh v. State of Pepsu (PLD 1956 SC (Ind.). 191) went on to observe as follows:- ---Section 197, Cr. P. C. Applies to a case where the offence with which the accused is charged is alleged to have been com--mitted while acting or purporting to action the discharge of his official function. It has no relation with the defence taken in the case. In a case of this nature defence generally takes shelter under a plea that a trial without the requisite sanction is invalid and without jurisdiction. The mere fact that the defence raised the contention in the present case that the appellants were engaged in the discharge of their official duty and arrested one man found carrying a bag of paddy at night and that the occurrence took place when the companions of the arrested man tried to snatch him away from the custody of the appellants who are police constables in uniform will not bring the case within the purview of section 197, Cr.P.C. Having regard to the language of the section itself. If the defence case on merits is accepted by the Court the appellants will be held not guilty of the offence for which they have been convicted but the allegations made by the defence will not attract the operation of section 197, Cr. P. C.---

28. In the present case the appellants behaved in a more ruthless, callous, high-handed and disgraceful manner, than the accused in any of the cases cited above. I have, therefore, no hesitation .In repelling the contention of the learned counsel that the appellants were acting or purporting to act in the discharge of their official duties.

29. As I have come to the conclusion that the appellants in Criminal Appeal No. 79 of 1969 do not belong to the class of public servants for whose prosecution sanction under section 197, Cr. P. C.

Would be necessary; and further, that they could not be said to be acting or purporting to act in the discharge of their official duty, I shall now consider the two appeals on merits.

30. The prosecution case against the appellants rest on the direct ocular evidence of six witnesses, namely, complainant, Muhammad Pariai P. W. 1, A.I Nawaz P. W. 2, Ahmed Nawaz P. W. 3, Muhammad Shall P. W. 4, Hussain Shah, P. W. 5 and Loung P. W.

6. The evidence of P. Ws. 1 to 4 is substantially in accordance with the prosecution case as stated in para. 4 above, and therefore, need not be repeated. The evidence of P. Ws. 5 and 6 is also to the same effect except that they are not witnesses regarding the allegation relating to the demand and acceptance of the bribe.

31. The evidence of complainant Muhammad Parial has been vehemently criticized by the learned counsel for the appellants. Mr. Sami Ahmed has emphasized the fact that the complaint was filed several days after the alleged occurrence and therefore, the belated allegations made therein should not have been accepted by the trial Court. It is true that although the offence is alleged to have taken place on 23-2-1967, according to Muhammad Parial himself, complaint was, lodged in the Court of Additional. District Magistrate on 27-2-1967. The complaint, Exh. 6, has however, no; date thereon, nor is there any endorse--ment by the concerned Magistrate or by ally one else to show as to when it was presented. The Court fee stamp affixed thereon showed that it was purchased by complainant Muhammad Parial on 27-2-1967. This is no doubt a circumstance which to some extent supports his assertion that he filed the complaint on 27-2-1967 but is by no means conclusive. As the statement of the complainant was recorded on 6-3-1967, the learned Sessions Judge gave the maximum benefit on this point to the accused and held that the complaint was filed on the same day. Assuming that this was so, I feel that this delay cannot by itself be fatal to the prosecution case. The complainant had to make allegations against the high handedness of the Assistant Sub-Inspector of Police of him area. He could not therefore, walk to the Police Station and file the report. He must have run from pillar to post till he could finally file this complaint thereby-incurring the wrath of the local police which could ruin not only him but his entire family.

Moreover, delay is not very important in, this case as there is no dispute on this that at least four out of seven appellants in these two appeals did go to the house of the complainant and took away some buffuloes therefrom on 23rd February 1967.

32. Mr. Sami Ahmad the learned counsel for the appellants has attacked; the evidence of complainant on the ground that he has made several improvements in his evidence. The learned counsel has pointed out that so many details which are mentioned in his evidence do not find anyplace in the complaint or in his statement recorded under section 200; Cr.P.C. The learned counsel has also pointed out certain discrepancies between his various statements. In This connection it may, be mentioned that a complaint cannot usually be as exhaustive as evidence given at the trial. It is just a statement of allegations to set the law in motion; and failure to furnish details of the occurrence cannot by itself mean that what is stated at the trial subsequently is false or baseless. As regards the discrepancies, pointed out by the learned counsel, these are not really such as would throw doubt on the prosecution case. As observed by their Lordships of the Supreme Court in the case of Ghulam Safdar v. The State (PLD 1956 SC (Pak.) 126), the H fate of a original case does not depend upon the existence of vague discrepancies in the statements of witnesses.

34. The learned counsel has next contended that the complainant is a history sheeter and a convict and should not therefore, be believed. There is nothing on record to substantiate this allegation: The complainant himself denied the suggestion. No document etc., has been produced to show that the com--plainant is a previous convict. Along with his, written statement appellant Muhammad Ismail produced a so-called certificate supposed to have been signed by S.H.O. Moco showing that complainant was a history sheeter. This document has not been proved and the learned trial Judge was justified in not taking it into consideration. It was open to the appellants to have examined S.H.O. Itrat Hussain in their defence at the trial, but they failed to do so. I am, therefore, of the opinion that this ---certificate--- was rightly excluded from consideration by the learned Sessions Judge.

34. Mr. Sami Ahmad's next contention was that as P. W. 4 A.I Nawaz is the brother of the complainant and P. W. Ahmad Nawaz happens to be his son their testimony should also be discarded. It is well settled that mere relationship with the complainant is no ground for disbelieving a witness if his evidence otherwise appears to be true, I have carefully gone through the evidence of complainant Muhammad Parial and P. Ws. A.I Nawaz and Ahmad Nawaz and find no reasons for doubting the same. The learned trial Judge who saw the witnesses and observed their demeanour has also believed them and there are no reasons for me to take a view different from the one taken by him on this point.

35. The evidence of P. W. Muhammad Shafi who is an independent and disinterested witness has been criticized on the ground that he has made a lot of improvements. It is true that the witness has made improvements at the trial and deposed to things which he had not said in his earlier statements, but this fact alone would not be sufficient for discarding his testimony altogether. It is well settled that the maxim falsus in uno alsus in omnibus is not of universal application and should not be applied rigidly but each case should be considered on its own facts.

36. The testimony of all these four witnesses is also assailed on the ground that they had been disbelieved by the learned trial Judge himself on the point of demand as well as payment of the alleged bribe. The observations of the learned Judge in this respect, however, would show that he was not disbelieving the witnesses on this point. The learned Judge was influenced by the fact that he was not trying the case as a Special Judge and, therefore, could not go into the allegation of demand and acceptance of the bribe. This can be seen from the following passage appearing in para. 18 of his judgment which reads as follows: ---I would in these circumstances, therefore, hold that perhaps the allegation of payment of bribe to accused Muhammad Ismail may not be true. However, on this question I am giving benefit of doubt to accused Muhammad Ismail which would not mean that the P. Ws. Are definitely making false statements and this final conclusion, I feel, also does not lie within my jurisdiction to arrive at as the offence of bribery, if any, cannot be tried by this Court.---

37. The most important evidence against the appellants however is the direct testimony of Hussain Shah and Loung, who are both completely disinterested and independent witnesses, having no connection with the complainant nor any grievance or grudge against any of the seven appellants.

Mr. Sami Ahmad, has, however, contended that their evidence should not be believed as they are neighbours of the complainant. It is an doubt correct that they live close to the house of the complainant, but only neighbours can be natural witnesses of an occurrence specially when the incident takes place at an old hour of the night as in this case. If the prosecution had examined witnesses from far flung areas the defence would have rightly complained that they were chance witnesses. As I have already stated, apart from being neighbours P. Ws. Hussain Shah and Loung have no other connection whatsoever with the complainant nor have they any enmity with any of the seven appellants. It is contended that there is discrepancy on the point of time when bribe was paid to Muhammad Ismail. P.W. Loung stated that this happened at 1030 a.m. Whereas P. W.

Ahmad Nawaz deposed that the bribe was paid at 3 p.m. Both the witnesses as well as others were unanimous that the complainant was released from police lock-up at 3 p. m. As this happened after the bribe of Rs. 1,000.00 was paid one of the P.Ws. May have made a mistake on the question of time. This circumstance, however, in my view would not be sufficient to throw doubt on the testimony of an independent witness like P. W. Loung.

38. Against P. W. Hussain Shah, the learned counsel have not been able to allege anything except a suggestion that he was under the influence of one Ghulam Mustafa Jatoi, a Zamindar and Member of the National Assembly who may have asked him to give false evidence against the appellants.

This suggestion was also made in cross-examination to some other witnesses but apart from the word of the appellant there is no basis for this assertion. In this connection P. W. Hussain Shah stated as follows: ---Ghulam Mustafa Shah Jatoi is a Zamindar. He is an influential and a big person. I do not attend his calls. It is not a fact that Ghulam Mustafa Jatoi had called me and told me to give evidence in favour of the complainant as he desired.---

39. The learned counsel for the appellants also contended that all these witnesses were examined late in the preliminary enquiry. May be so, but the witnesses could have attended the Court only after summons were issued to them by the Magistrate. If the learned Magistrate conducting the preliminary enquiry fixed the hearing after sometime the witnesses could not be blamed for this delay much less disbelieved on this ground.

Besides the names of all the six witnesses appear in the complaint. The complainant had left for Nawabshah immediately after his release on 23-2-1967 and it is not even contended that he contacted P.Ws. Muhammad Shafi, Hussain Shah or Loung before he lodged his complaint.

40. It was next contended that this evidence was rendered doubtful as one Fateh A.I Shah a deserter from the Army was also in the Police lock-up at Moro and he ought to have been examined by the prosecution in this case. It is not proved that Fateh A.I Shah was in the lock-up on 23-2-1967. The entry from the Roznamcha of the Moro police station produced by Muhammad Ismail with his written statement does not appear to be authentic. But even if this is assumed to be correct this Fateh A.I Shah may have been confined in a different cell or room and the prosecution witnesses may not have seen him. This contention accordingly does not appear to have much substance.

41. After having gone through the evidence of all the six witnesses examined by the prosecution in this case and having considered all the contentions raised by the learned counsel appearing in these appeals, I have no doubt whatsoever that the prosecution witnesses have given substantially true evidence and consequently their allegations against all the seven appellants have been fully established.

42. Four of the appellants, namely, Muhammad Ismail, Muhammad Idris, Sultan A.I and Haji Amir Bux admitted their presence at the scene of occurrence at the time of the incident. Appellant Muhammad Ismail further admits that he secured four heads of cattle including a young one from the cattle shed of the complainant and took the same with him to Moro Police Station from where he sent the cattle to the Pound the same day at 6-30 p.m. According to this appellant, on 24-2- 1967, one Abdul Hakim filed a report about the theft of his three buffaloes and a young one and as the description given by Abdul Hakim tallied with that of the buffaloes secured from the complainant on suspicion under section 550, Cr.P.C., these were given over to Abdul Hakim. I fail to understand as to how the learned Sessions Judge could have condoned this act on part of appellant Muhammad Ismail. All the witnesses when questioned on this point stated that the appellant had taken signature of Sobho (who was supposed to be a Mashir in respect of the seizure of the four buffaloes on a blank paper thereby proving, that this Mashir--nama was prepared at the police station on that blank paper later in the day. The description of the cattle in this "Mashir--nama" is shown as follows:- "(1) One buffalo gray, white spot on forehead, having given five births, milch, worth Rs. 500.00.

(2) One buffalo black, crooked horned, milch worth Rs. 500.

(3) One buffalo black, crooked horned, a mark `K' on left leg worth Rs. 400."

The mashirnarna also showed that in addition to three buffaloes, a young one buffalo was also seized. This cattle although secured at 1 a.m. Was sent to the Pound only at 6-30 p.m. The next evening. Appellant Muhammad Ismail admittedly kept it with himself for over 17 hours but then sent it to Pound at the fag end of the day after the complainant was released. It appears that the sudden departure of the complainant to Nawabshah may have led the A. S. I. P. To suspect that there may be some trouble and he accordingly sent the cattle to the Pound as a safeguard against it. The next day i.e., on 24-2-1967, at 1 p.m. One Abdul Hakim mysteriously appeared at Moro police station to file a report regarding the theft which even according to this report took place about one month back. The description of cattle given in this "F. I. R." is as follows:- "(1) One buffalo gray, a white spot on forehead, crooked horned, having given five births, milch valued at Rs. 600.

(2) One buffalo black crooked horns Rs. 500."

(3) One buffalo, black, crooked horns, having given two births with a female youngling behind it, bearing mark "K" on left leg, valued at Rs. 500.

It will thus be seen that the description of the animals in these two documents and even the order in which they are mentioned is exactly similar. It appears that some one has copied the description from the mashirnama to the F.I.R. Or vice-a-versa, of course with slight changes to ensure that the cat is not out of the bag. May be, both the documents were prepared at the same time.

It is surprising as to how the A. S. I. P. Knew at I a.m. On 23-2-1967, that on 24-2-1967 at 1 p.m.

(exactly after 36 hours) one Abdul Hakim would come the police station and lodge a report about the theft of these very same four animals so that he should secure them in advance. Even an astrologer would not be able to predict a thing like that. There were 16 animals in the cattle shed of the complainant of which 8 were left behind, four were given to appellant Amir Bux while four were taken away by A.S.I.P. Can it possibly be just a coincidence that four animals (three buffaloes and a young one) of exactly the same description (including the number of births each animal had given) should be subsequently mentioned in the "F. I. R." filed by Abdul Hakim. The inference is obvious that this "F. I. R." was subsequently manouvered by the A. S. I. P. Muhammad Ismail so as to create a defence for himself on a charge of dacoity. The complainant had left for Nawabshah on 23-2-1967 and by next day appellant Muhammad Ismail must have sensed as to what was coming. It would not at all be difficult for an A. S. I. P. To get hold of some one like Abdul Hakim to claim the cattle and that is exactly what has happened. The illegal manner in which this cattle was subsequently handed over by the police to Abdul Hakim further supports this conclusion. As provided under section 523, Cr. P. C. The seizure of the cattle should have been forthwith reported to a Magistrate who alone could pass the order regarding its custody; but instead the Pound Munshi was immediately ordered to handover the same to Abdul Hakim as the letter produced by Muhammad Ismail himself would show. I consider all this as a cruel attempt on part of appellant Muhammad Ismail to get rid of the property which he had acquired by committing dacoity and thereby to create a false defence in his favour. This coupled with his admissions goes a long way in establishing his guilt.

43. The learned counsel for the appellants has argued that the custody of these four animals has not been given to com--plainant Muhammad Parial right up to this day, which fact, according to him would show that this cattle really belonged to Abdul Hakim. While it may be correct that complainant has not been able to get the custody of these animals, may be because the case in respect thereof has not been decided so far, the fact remains, that it has not been as established either, that the cattle did not belong to complainant or that it belonged to Abdul Hakim. Indeed, if it had been so held, the complainant would have been convicted for being in possession of stolen property, but this has not happened. There is, accordingly, not much force in the contention of the learned counsel that the four heads of cattle were seized by appellant Muhammad Ismail under section 550, Cr.P.C. This was a pure and simple case of dacoity, extortion of a bribe and wrongful confinement, not to speak of gross contempt of the Sessions Court, Nawabshah. Appellant Muhammad Ismail has been rightly convicted under sections 395 and 342, P. P. C. And I have no hesitation in maintaining the said convictions. It is pity that on both these counts the sentences awarded by the learned Sessions Judge are illegal; but I shall refer to this aspect of the case later.

44. Mr. Haji Muhammad Memon, the learned counsel appearing for appellant No. 3, namely, Muhammad Idris, contended that even if the entire prosecution evidence is believed appellant Muhammad Idris would not be guilty of any offence as he did nothing except accompanying A.S.I.P.

Muhammad Ismail which he was bound to do under section 29 of the Police Act. A perusal of this section would show that it provides penalty for violation of a lawful order of a superior officer. 1t cannot possibly be contended that a subordinate police officer is bound to obey the orders of his superior if the latter requires him to commit an offence of dacoity. Mr. Memon also invited my attention to section 79, P. P. C. And contended that appellant Muhammad Idris believed in good faith that what he was being asked to do was justified by law. Similar contentions were also raised by Mr. Sami Ahmed on behalf of appellant Sultan A.I. I regret I cannot subscribe to this proposition.

Section 79, P. P. C. Reads as follows:-- ---Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.--- It would thus be seen that under this section mistake must be one of fact and not of law. A mistake of fact consists in an unconsciousness, ignorance, or forgetfulness of a fact, past or present, material to the transaction, or in the belief of the present existence of a thing material to the transaction, which does not exist, or in the past existence of a thing which has not existed. In this case the two appellants, namely, Muhammad Idris and Sultan A.I who were police constables had not only accompanied the A.S.I.P., appellant Muhammad Ismail, but one of them, namely, Sultan A.I actually tied up the complainant and both of them took the complainant, P.W. A.I Nawaz and his brother Shah Nawaz with them to the police station and locked them up. Even after they had seen the A. S. I. P. Contemptuously throwing the order of the Sessions Court whereby these witnesses were granted anticipatory bail, the two police constables took away four heads of cattle to the police station; and that also after Haji Amir Bux had admittedly informed the S. H. O. That none of his buffaloes was found in the cattle shed of the complainant. The A. S. I. P. Could not possibly have taken three persons and four heads of cattle all the way to the police station by himself without the assistance of his police constables.

The question of good faith is also ways a question of fact to be determined in accordance with the proved facts and circum--stances of each case. Even if these two appellants were ordered to do all these things by the A.S.I.P. That would be no defence, although it may be an extenuating circumstances as regards the question of sentence. It is well settled that obedience to an unlawful order does not exonerate or excuse a person who commits an offence as a consequence of such order. If the commands are obviously illegal as they were in this case an inferior would be justified in refusing to execute such commands. Even in case of a soldier the Penal Code does not recognize the duty of blind obedience to the commands of a superior as sufficient to exonerate him from the penal consequences of his act. I am, accordingly fully satisfied that both these appellants are guilty of the offences under sections 395 and 342, P. P. C. And have been rightly convicted by the learned Sessions Judge, although the sentences awarded to them also are illegal.

45. All the three appellants in Criminal Appeal No. 79 of 1969, have been sentenced to R. I. For two years each under section 342, P. P. C. This is obviously an illegal sentence as the maximum provided for this offence is R. I. For one year only, I would, accordingly reduce the sentences awarded to all the three appellants on this Count to R. I. For one year each.

46. The sentence of R. I. For three years under section 395, P. P. C. Is also illegal. It is not disputed that A. S. I. P. Muhammad Ismail carried a revolver in his holster while Muhammad Idris and Sultan A.I were armed with 303 rifles. It is accordingly, admitted that all these three appellants were carrying deadly weapons. They were also charged for an offence under section 395/397, P. P. C. The learned Sessions Judge, however, relied on the case of Dilawar Khan v. The State (PLD 1958 Lah.

676), wherein Qhangez, J., held that "mere carrying of the weapon at the time of robbery does not fall" under section 397, P.P.C. The learned Judge nevertheless observed that if an offender displaying a deadly weapon threatened to use it his case would fall under section 397, P. P. C. A somewhat similar view was also expressed by Muhammad Shafi, J., in Alauddin v. The State (PLD 1960 Lah. 559). These cases are, however, no longer good law and the controversy on this point has been set at rest by the pronounce--ment of our Supreme Court in the case of Ahmed v. The State (PLD 1963 SC 737). In this case it was not specified in evidence that the two appellants, namely, Ahmed and Noora whose appeals were before the Supreme Court had actually used their guns in the course of the incident. Notwithstanding this, their Lordships held that mere carrying of a deadly weapon was sufficient to attract the provisions of section 397, P. P. C. S. A. Rehman, J., as his Lordship then was, observed as follows:- It would, therefore, seem that even in the case of an attempted robbery or dacoity, the mere carrying of a deadly weapon by an offender would entail the consequence that in case of a conviction, he would receive a minimum sentence of seven years' rigorous imprisonment. This section provides the key to the correct interpretation of section 397, P. P. C. And we and disposed to agree with the view expressed in the case cited that the word `uses' occurring in section 397, P. P. C.

Should be construed broadly as including the case of carrying of a deadly weapon during the dacoity or robbery."

46-A. Mr. Sami Ahmad contended that as these appellants were charged under section 395/397, P.

P. C. But convicted only under section 395, P.P.C. This amounted to their acquittal in respect of the offence under section 397, P.P.C. And in the absence of an acquittal appeal by the State the appellants should not be convicted under section 395/397, P. P. C. On an application for enhancement of sentence having been filed by the State under section 439, Cr.P.C. In this connection I may mention that section 397, P. P. C. Is merely a rider to sections 392 and 395, P: P. C.

It does not create any sustentative offence; but merely regulates the punishment already provided for robbery or dacoity by fixing a minimum term of imprisonment when its commission has been attended with certain aggravating circum--stances. I shall accordingly accept the application under section 439; Cr. P. C. Filed by the State in this connection and enhance the sentences of Muhammad Ismail, Muhammad Idris and Sultan A.I to R. I. For seven years each under sec-- petition 395/397; P. P. C. I consider that even under section 395, P: P: C. a sentence of three years R. I.

Was grossly inadequate at least in respect of appellant Muhammad Ismail. Such barbarous acts by subordinate Police Officers rarely see the light of the clay as the victims are invariably conscious of the conse--quences that a complaint against them may entail. When, however, such offences are fully established as in this case the offender deserves not only deterent but examplary punishment. The sentence of R. I. For seven years is, therefore, richly deserved by appellant Muhammad Ismail, who has behaved in a. Most callous, high-handed and disgraceful manner. I, however, feel sorry for appellants Muhammad Idris and Sultan A.I, who obeyed the illegal orders of their superior officer. The minimum sentence for an offence under section 395/397, P. P. C. Is R. I. For seven years and any lesser sentence would be illegal. It is, however, for the Provincial Government to consider their case under section 401, Cr. P. C. If an application in this respect is made before them.

47. I shall now consider the case of appellants in Criminal Appeal No. 80 of 1969.

Mr. Tufail A.I A. Rehman, the learned counsel appearing on behalf of these appellants has adopted most of the contentions raised by Mr. Sami Ahmed which have been already dealt with and therefore, need not be repeated. The learned counsel emphasized the enmity between the appellants and the com--plainant over the filing of the theft case and contended that it would not be safe to base a conviction on the basis of this interested evidence. The allegations of dacoity against these appellants are, however, fully supported by P. Ws. Hussain Shah and Loung, who are not connected with the complainant nor have they enmity with these appellants. As I have already said I believe the evidence of these witnesses and consider that it does not stand in need of support from any other quarters.

48. Appellant Haji Amir Bux has admitted his presence at the time of occurrence. In the Court of the Committing Magistrate he admitted that on 23-2-1967 he bad accompanied A. S. I. P. Muhammad Ismail to the house of complainant and his brothers. What is more important is his statement that the police secured my stolen buffaloes from the house of complainant and his brothers". As provided under section 287, Cr. P. C. This statement has to be read as evidence in the case; and it shall consequently have the same effect as any other evidence adduced before the trial Judge.

This position is not disputed by Mr. Tufail A.I A. Rehman, but the learned counsel contended that having regard to the statement of this appellant in the trial Court the admission before the committing Magistrate does not appear to have been correctly recorded. I have seen this statement in original. It is recorded by the learned Magistrate in English and there is also a Sindhi version thereof on record which is usually taken down by the Reader of the Magistrate. Both are identical, and both contain this admission. There is also a presumption under section 80 of the Evidence Act that this statement was correctly recorded. Appellant Amir Bux's version in the trial Court appears to be an after-thought. These admissions of appellant Haji Amir Bux corroborate the direct evidence of prosecution witnesses to the effect that Haji Amir Bux and his companions took away four heads of cattle belonging to the complainant.

49. Another circumstance which goes a long way towards showing that appellant Haji Amir Bux and his companions, namely, Qamardin, Ghulam Kadir and Ismail Shah were acting in concert with A. S. I. P. Muhammad Ismail and his subordinates is the fact that all these four appellants in Criminal Appeal No. 80 of 1969 are the residents of Dadu District as their statements under section 342, Cr. P. C., would show and the theft of their cattle was also alleged to have taken place at their village, namely, Gul Muhammad Shahani in District Dadu. No report however was lodged with the local police regarding the alleged theft. Instead as the F. I. R. Dated 7-1-1967 of Haji Amir Bux (page 54 of the paper book), produced by appellant Muhammad Ismail with his written statement, would show, it was lodged 3-4 months after the alleged theft at Moro police station in a different district where appellant Muhammad Ismail happened to be employed as A.S.I.P. What is more, Haji Amir Bux in order to make out that his F.I.R. Was genuine has falsely stated that he was a resident of Moro taluka in Nawabshah District. It appears that appellant Haji Amir Bux had joined hands with appellant Muhammad Ismail in order to harass and humiliate the complainant. However, they did not stop at that; but went to his house in a body of eight persons at 1 a.m. Carrying a revolver, three '303 rifles and four lathis; and committed dacoity of his cattle. The complainant and his three brothers were arrested in spite of the order of bail passed by the Sessions Court in their favour, and they were all confined in police lock-up for several hours till they satisfied the A.S.I.P's. Lust for money. Out of the eight buffaloes taken away by the culprits, four were given to Haji Amir Bux and his companions while the remaining four were taken away by the A. S. I. P. And his subordinates for themselves. The subsequent F.I.R. Of Abdul Hakim appears to be no more than a cock and a bull story as I have already explained above.

50. Taking into consideration all the direct as well as circumstantial evidence discussed above, there is no doubt in my mind that all the four appellants in Criminal Appeal No. 80 of 1969 have also been rightly convicted under section 395, P. P. C. The question of sentence, however, requires consider--ation. The circumstances of the case show that these appellants were tempted to commit this daeoity by A. S. I. P. Muhammad Ismail who has played a leading part in this incident.

Appellants Haji Amir Bux, Qamardin, Ghulam Kadir and Ismail Shah have, played a lessor role and consequently sentence of three years R. I. In their case appears to be excessive. I would, therefore, reduce the sentence awarded to all the four appellants from R. I. For three years to R.I. For one year each.

51. In the result Criminal Appeal No. 79 of 1969 is dismissed. The convictions of all the three appellants, namely, Muhammad Ismail, Muhammad idris and Sultan A.I under sections 342 and 395, P. P. C. Are maintained but their sentence under section 342, P. P. C. Is reduced to R.I. For one year each while the sentence of three years' R. I. Under section 395, P. P. C. Is enhanced to R.I. For seven years under section 395/397, P. P. C.

Similarly, Criminal Appeal No. 80 of 1969 is dismissed and the convictions under section 395, P. P. C.

Of all the four appellants, namely, Haji Amir Bux, Qamardin, Ghulam Kadir and Ismail Shah are maintained. Their sentences, however, are reduced from R. I. For three years to R. I. For one year each. They are on bail and must surrender to serve out the unexpired portions of their sentences.

With this modification both the appeals stand dismissed.

Sentence enhanced.