ASIF SAEED KHAN KHOSA, J. In his capacity as an Additional Sessions Judge, Kasur the present petitioner had conducted trial in case F.I.R. No, 149 registered at Police Station Mustafa Abad, District Kasur on 14.04.2003 in respect of an offence under Section 394, PPC which was subsequently converted into Section 396, PPC and vide judgment dated 29.03.2006 he convicted all the accused persons facing trial for an offence under Section 396, PPC and sentenced each of them to death and to pay fine. The convicts challenged their convictions and sentences before the Lahore High Court, Lahore through Criminal Appeals No, 595 and 608 of 2006 which were heard by a learned Division Bench of the said Court alongwith Murder Reference No, 276 of 2006 seeking confirmation of the sentences of death passed against the convicts and vide judgment dated 06.06.2012 the said appeals were allowed, the Murder Reference was answered in the negative and all the convicts were acquitted of the charge. At the end of the judgment, in paragraph No, 21 thereof, passed by the learned Division Bench of the Lahore High Court, Lahore the following observations had been made and a direction had been issued:--- "Before parting with this judgment we are constrained to observe that the learned Trial Court while passing conviction has acted with extreme highhandedness thereby misusing its judicial powers.
The Judicial Officer vested with the powers to try sessions cases entailing death sentence plays the role of a vicegerent dealing with life and liberty of persons, which even otherwise is the domain of Allah (Almighty). In the instant case, there is no direct evidence against the appellants, the other attending circumstances do not find corroboration from any independent source and only while relying upon the opinion of the police/Investigating Officer, who had carried out investigation in a dishonest manner, the learned Trial Court has passed such a harsh sentence, which even does not appeal to mind of a person of an ordinary prudence. In our view he is either incapable to adjudicate sessions cases or his integrity is doubtful as a Judicial Officer. Even otherwise a person with such incapacitated ability cannot be given the license to put the public at the helm of affairs without just cause; thereby passing the sentence of death without justification especially when legal heirs of the deceased had made statement in favour of the appellants during the course of trial. The Judicial Officer straightway lacks sufficient wisdom to render justifiable opinion while dealing with the cases involving capital punishment. Registrar of this Court is directed to place our findings in the personal file of the Judicial Officer so that the matter may be taken up on administrative side."
The observations made and the direction issued by the learned Division Bench of the Lahore High Court, Lahore reproduced above have been assailed by the petitioner before this Court through the present petition.
2. We have heard the learned counsel for the petitioner and the learned Registrar of the Lahore High Court, Lahore appearing in person and representing the respondent besides hearing the learned Additional Prosecutor-General, Punjab and have gone through the record of the case with their assistance.
3. The learned Division Bench of the Lahore High Court, Lahore ha d taken strong exception to the judgment passed by the petitioner while presiding over the trial of the accused persons in the above-mentioned criminal case mainly on account of the following factors:
(i) There was no direct evidence available on the record against the accused persons,
(ii) the attending circumstances of the case had not received any corroboration from any independent source, the petitioner had exclusively relied upon opinion of the investigating officers who had conducted the investigation in a dishonest manner, and
(iv) the heirs of the deceased had made statements in favour of the accused persons during the course of the trial.
On the basis of these considerations the learned Division Bench had observed that the petitioner had "acted with extreme highhandedness" and had misused his judicial powers, the sentences passed by the petitioner were quite "harsh" which did not appeal to the mind of a person of ordinary prudence and, thus, the petitioner was either incapable to adjudicate sessions cases or his integrity was doubtful as a judicial officer. The learned Division Bench of the Lahore High Court, Lahore had then proceeded to issue a direction to the learned Registrar of the Lahore High Court, Lahore (the respondent herein) to place the above-mentioned findings of the learned Division Bench on the personal file of the petitioner so that the matter could be taken up on the administrative side. We have been informed that disciplinary proceedings against the petitioner on the basis of the above-mentioned observations and direction of the learned Division Bench of the Lahore High Court, Lahore are already underway.
4. A perusal of the record shows that the learned Division Bench of the Lahore High Court, Lahore was not justified in observing that no direct evidence was available on the record regarding involvement of the accused persons in the offence in issue inasmuch as Babar (PW5) had categorically stated before the learned Trial Court that it was Asghar accused who had fired a shot at Syed Afzal Shah deceased and the said witness had claimed to have himself witnessed the firing of that shot by the said accused person at the deceased. Such evidence was definitely a direct piece of evidence at least against one of the accused persons facing the trial. During the course of investigation many recoveries had allegedly been effected from the possession of the accused persons and for the reasons recorded by the petitioner in his final judgment those recoveries had been believed by him and, thus, it could not have been observed by the learned Division Bench of the Lahore High Court, Lahore that no corroboration was available on the record from any independent source. It was, however, for the learned Division Bench of the Lahore High Court, Lahore to agree or disagree with the petitioner vis-a-vis the evidentiary worth and value of such corroboration available on the record. As regards the observation made by the learned Division Bench of the Lahore High Court, Lahore in respect of unjustified reliance placed by the petitioner upon the opinion of some investigating officers regarding guilt of the accused persons we have particularly noticed that in paragraphs No, 27 and 28 of the judgment rendered by him the petitioner had observed as follows:--- "27. It is a settled law that the opinion of the Investigating Officer regarding the innocence or guilt of the accused persons is not binding on the Court, rather, the same is inadmissible in evidence but it has been settled by the Hon'ble Lahore High Court. Lahore in case-law PLD 2000 Lahore 216 that the evidence of police officials can be considered at the time of final judgment.
28.I a.m. also convinced by the settled law by the Hon'ble Higher Courts that police officials are also good witnesses like other private persons It appears from the passage of the petitioner's judgment reproduced above that the petitioner was of the considered view that opinion of an investigating officer regarding guilt or innocence of an accused person is inadmissible in evidence being irrelevant but he was constrained to rely upon such opinion of the investigating officers appearing, in the present case only on the basis of a judgment rendered by a learned Division Bench of the Lahore High Court, Lahore in the case of Altaf Hussain and 4 others v. The State (PLD 2000 Lahore 216). By virtue of the provisions of Article 201 of the Constitution of the Islamic Republic of Pakistan, 1973 the above-mentioned judgment rendered by a learned Division Bench of the Lahore High Court, Lahore was binding upon the petitioner who was a presiding officer of a Court subordinate to the Lahore High Court, Lahore. We have no hesitation in observing that the law laid down in the said precedent judgment was bad law as the same was contrary to the law settled in that regard over a period of more than one hundred years but despite his own opinion being otherwise the petitioner only extended deference to the Lahore High Court, Lahore by expressly referring to the said judgment and then following the law laid down therein. Such obedience and deference depicted by the petitioner could not be taken an exception to by the learned Division Bench of the Lahore High Court, Lahore in the present case for recording some very harsh observations against the petitioner's conduct and for commenting upon his integrity or capacity as a judicial officer. We have been surprised to notice that the learned Division Bench of the Lahore High Court, Lahore had also taken exception to the petitioner not giving importance to the statements given by some prosecution witnesses which statements were favourable to the accused persons. It ought to have been appreciated by the learned Division Bench that the offence under Section 396, PPC being tried by the petitioner was not a compoundable offence and, thus, any compromise between the accused persons and the heirs of the deceased was of little consequence.
5. The discussion made above leads us to an inescapable conclusion that in the circumstances of the case the learned Division Bench of the Lahore High Court, Lahore was not justified in making the above-mentioned observations against the petitioner and, therefore, the direction issued by it to the learned Registrar of the Lahore High Court, Lahore regarding placing the said observations of the learned Division Bench on the personal file of the petitioner so that disciplinary proceedings could be taken against him was also uncalled for. In this view of the mater the delay in filing of this petition is condoned, this petition is converted into an appeal and the same is allowed and. consequently, paragraph No, 21 of the impugned judgment passed by the learned Division Bench of the Lahore High Court, Lahore is expunged from the said judgment.