LAHORE: In the backdrop of the political turmoil in the country after the Panama case verdict, a question has been agitating one’s mind: whether a trial judge, regardless of which chair is being occupied by him, either at the trial level or the highest one, enjoys the freedom to abuse a person facing trial before him, and can then, on being prosecuted by the aggrieved party, take up the defence of being immune from prosecution on the basis of being a judicial officer.
This precise situation was dealt with by the then Chief Justice of the Lahore High Court SA Rehman in the case of Dilbar Hussain vs Ch Khurshid Ahmad (PLD 1956 West Pakistan Lahore, 865). Dilbar Hussain, a petitioner before the Lahore High Court, was tried by Ch Khurshid Ahmed, Magistrate, Section 30, Gujranwala, in a case under sections 366 and 376 of the PPC.
During the course of the trial, Dilbar Hussain informed the Magistrate that the case be adjourned to enable him to move for transfer of the same, from his court. On hearing that, the Magistrate allegedly flared up and called Dilbar Hussain names. In view of how the Magistrate had acted, Dilbar Hussain filed a complaint under sections 500 and 504, PPC, against the Magistrate, in the court of Additional District Magistrate, Gujranwala. The Additional District Magistrate dismissed the complaint on the ground that the accused Magistrate could not be prosecuted, vide section 197 CrPC, without requisite sanction from the competent authority. Against summary dismissal of the complaint, Dilbar Hussain went up in revision to the court of the concerned Sessions Judge, but in vain. Thereafter Dilbar Hussain approached the high court in further criminal revision, by allowing which, the orders passed by the learned courts below, were set aside and the complaint filed by Dilbar Hussain was ordered to be entrusted to the court of Additional District Magistrate, Lahore for fresh disposal on merits.
It was held in the case that: “The criterion for determining whether the act was covered by the protective section – 197 CrPC – was whether the act complained of was such as lay within the scope of the official duty of the person concerned. It was pointed out that a Judge, for instance, 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. In the words of the Privy Council, the test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office. In that particular case the charge against the public servant was with regard to an offence under section 120-B read with section 161, Panel Code and it was found that no sanction under section 197, Criminal Procedure Code, was necessary for his prosecution on these offences.”
It was ruled in the case that when the Magistrate allegedly abused, called the accused names he was not acting in the discharge of his public duties and hence protection of section 197 CrPC was not available to him. Hurling of such abusive invectives by a subordinate court was considered fit to be frowned upon. By hurling abusive invectives, the section 30 Magistrate was surely not acting in the discharge of his public functions. Notoriety earned by ‘Sicilian Mafia’ and the God Father’, is too well known to need any reiteration. What went with them were thuggery, arson, murders and robberies.
In the context of Pakistan, the only ‘God Father’ we ever had was none other than the then MQM Chief, Altaf Hussain. Hence to call anyone as ‘God Father’ or having attributes of ‘Sicilian Mafia’ would be character assassination of the worst kind. And if such utterances come from a court of law, as against a person, under trial before it, the same would certainly be most unwelcome and uncalled for, to say the least. In the present context, we find that the Chief Executive of the country was called a ‘God Father’ and later having something to do with ‘Sicilian Mafia’. By exhibiting such attitude was the Supreme Court acting in the discharge of its public functions? By what logic then exhibition of such attitude on the part of superior judiciary be viewed with approval. The matter definitely calls for serious examination and consideration by the legal circles.
The writer is an advocate in Kasur district
Published in Daily Times, September 26th 2017.
