Muhammad Farrukh Mahmud, J.--This petition seeking leave to appeal is directed, against judgment dated 15.09.1998 handed down by the learned Federal Shariat Court in case FIR. No, 85 registered at Police Station Model Town, Lahore on 10.04.1993 for offence under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, whereby the learned Court while dismissing the appeal passed adverse remarks against the petitioner who had heard and decided the case as Judge of the trial Court.
Haji Muhammad Hamid, Muhammad Latif (both the accused were Nigerian), Muhammad Aslam and Muhammad Rafique Shah faced trial in the Court, of the petitioner for offences under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979.
Vide judgment dated 08.12.1993 the petitioner in his capacity as Judicial Magistrate acquitted Muhammad Hamid, Muhammad Latif and Muhammad Aslam accused. Through the same judgment Muhammad Rafiq Shah, on the basis of his confession, was convicted for offence under Article 4 of the ordinance and was sentenced to six year rigorous imprisonment. He was also directed to pay fine of Rs, 5,000/- in default of payment thereof, he was to suffer four months S.I. he was also sentenced to five stripes, benefit of Section 302(b) Cr.PC was given to him.
Feeling aggrieved the State filed appeal against acquittal of rest of the three accused i,e, Muhammad Hamid, Muhammad Latif and Muhammad Aslam. Vide judgment dated 15.09.1998. The learned Federal Shariat Court while dismissing the appeal passed adverse remarks against the petitioner in Para Nos, 5 and 6 of the judgment. The petitioner has sought expungement of the adverse remarks specified below:-- "The learned Magistrate has thus violated the- legal requirements".
It is worth mentioning that extreme negligence has been shown during the proceeding of this case by the learned trial. Court".
With the observation that the Magistrate has not properly performed his duties as required under the law proceeded in irresponsible manner".
2. The learned counsel for the petitioner has submitted that the adverse remarks were not justified in the circumstances of the case and that the petitioner was condemned un-heard. He has relied upon the following cases G. S. GIDEON, Advocate vs. The State (PLD 1963 SC 1), Abdul Khaliq vs Khan Bahadur and another (PLD 1996 SC 176), Muhammad Mansha vs The State (PLD 1996 SC 229) and Abdul Sattar Khan, District and Sessions Judge, Lakki Murwat vs. The State (SCM R 2000 SC 652).
3. The learned counsel for the State, Ch. Munir Sadiq, Deputy Prosecutor General, Punjab, has argued that the observations made by the learned Federal Shariat Court were justified.
4. We have heard the learned counsel for the parties and gone through the impugned judgment. In Para No, 5 it was observed that "12 kgs of narcotics were recovered from Muhammad Rafique Shah convicted accused, yet the learned Judicial Magistrate sentenced him to only six years R.I., whipping numbering five stripes and a fine of Rs, 5,000/- or in default four months S.I. and acquitted the respondents. It is not known why the learned Judicial Magistrate acted so hurriedly that he did not record any evidence of prosecution witnesses or even statements of other co- accused/respondents. The learned Magistrate also failed to appreciate the fact that in view of the huge quantity of the contraband confessed by Muhammad Rafiq Shah to have been recovered from his exclusive possession, sentenced him only six years R.I., whereas Article 4 of the said Order prescribes imprisonment for life, if the quantity exceeds 10 grams in case of heroin. As envisaged by Section 347 Cr.P.0 and held in case reported as PLD 1991 FSC 66 the learned Magistrate should have forwarded the instant case to the Sessions Court for decision." The learned Magistrate has thus violated the legal requirement". It. was further observed in the same para, that "It is worth- mentioning that extreme negligence has been shown during the proceeding of this case by the learned trial Court, as well as by the prosecution agencies". In Para 6 of the impugned judgment it was observed that "we dismiss this appeal with the observation that the Investigating Officer as well as Magistrate have not properly performed their duties as required under the law and both of them have proceeded in irresponsible manner".
Firstly, no revision was filed by the State for enhancement of sentence inflicted upon Muhammad Rafique Shah convicted co-accused, secondly the learned appellate Court took no step to enhance the sentence of Muhammad Rafique Shah. Thirdly according to second proviso of Section 4 of Prohibition (Enforcement of Hadd) Order, 1979, the sentence inflicted upon Muhammad Rafique Shah was legal, the proviso is being reproduced:-- "Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine, opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw opium or coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty strips, and shall also be liable to fine".
5. As far as acquittal of rest of the accused is concerned suffice it would be to say that the learned Federal Shariat Court dismissed the appeal, filed by the State against the acquittal of rest of the accused.
Undeniably the learned Federal Shariat Court did not give any opportunity of hearing to the petitioner before passing adverse remarks against him. It was observed in the case of Syed Ali Nawaz Gardezi vs. Lt-Col. Muhammad Yusuf PLD 1963 SC 51) as follows: "As the Bench hearing the appeal, it was no doubt within the province of the power and duty of the learned Judges, to comment .upon the mode of trial adopted, if it was in contravention of law, or had aspects of unfairness or impropriety. The degree of sharpness that could be permitted, in the comment, would be determined by the gravity of the irregularity or the injury resulting there from.
For, in all circumstances, the criticism offered would of necessity fall within the requirements of the dispensation of justice. It is imperative that the criticism offered should not only be well-informed, but also that it should be well-intentioned, in a strictly judicial sense."
6. In the above noted circumstances we convert this petition into appeal which is allowed. The adverse remarks narrated in the prayer in Cr. M.A. No, 142 of 2009 in Criminal Sh.P. No, 23 of 2003 are expunged the above noted Cr.M.A. deposed of accordingly.