Through this petition under Section 561-A Cr.P.C. read with Section 439 Cr.P.C. the Petitioner seeks expunction of disparaging remarks made against him by the learned Magistrate Section 30, Bahawalpur , while delivering judgment dated 25.3.2017 in case FIR No.205/2012 dated 6.4.2012 registered at Police Station Civil Lines, Bahawalpur , for of fences under Sections 395, 412, 109 PPC.
2. Brief facts giving rise to this petition are that the Petitioner/Complainant was employed as Emergency Medical Technician in Rescue-1 122, Yazman, and was temporarily working as Account Assistant. On 6.4.2012, he along with Muhammad Kashif, Account Assistant, Ayaz Hussain, Security Guard and driver , drew cash in the sum of Rs.16,92,736/- from the State Bank of Pakistan, Bahawalpur , for payment of salaries to the employees of Rescue 1122. At about 12:00 noon when he returned to his office he put some money on the table and the remaining in the iron safe and started making payments to the staff. At about 4:45 p.m. two armed men thrusted into his office and one of them hit the back of his head with pistol owing to which he fell down. The other accused drew the key from the drawer , unlocked the safe and took out the money from it. They ordered him not to go out of the room and fled.
After their departure the Petitioner/Complainant came out and saw some servicemen, including, Shahid Joyia, Muhammad Arif and Muhammad Abbas, standing in front of the control room. When he informed them about the incident they told him that they had seen four men wearing Shalwar Qameez with helmets in their hands going upstairs and then out of the gate. The other employees, Muhammad Saeed and Muhammad Akhtar , who had come there to take their salaries, also said that they had seen the accused going out of the gate on their 125CC motorcycle which did not have any number plate. On his application (Exh.P A), FIR No.205/2012 (supra) was registered against four unknown accused. On 14.4.2013, the Petitioner made an application Exh.PB to the SHO and nominated Adnan Qayyum, Hassan Ali, Waqas Ahmad alias Wikki, Agha Jahanzeb, Muhammad Zahid, Amman Tariq and Zia-ur-Rehman alleging that they had committed dacoity at the behest of Zia-ur-Rehman (Respondent No.3). The police investigated the case and submitted report under Section 173 Cr.P.C. The learned trial Court summoned the accused and indicted them. However , only Zia-ur-Rehman (Respondent No.3) attended all the hearings till the conclusion of the trial. The other accused absented and were declared proclaimed offenders.
In order to prove its case the prosecution produced nine witnesses, namely , Muhammad Arif/LFR (PW-1), Mujahid Abbas (PW-2), Muhammad Siddique/EMT (PW-3), Muhammad Akhtar/Driver (PW-4), Petitioner/Complainant Syed Mohsin Abbas (PW-5), Muhammad Iqbal/IO (PW-6), Muhammad Ashraf 344/HC (PW-7), Muhammad Shahid Joyia (PW-7/A) and Muhammad Shabbir/SI (PW-8). Thereafter , Respondent No.3 was examined under Section 342 Cr.P.C. wherein he professed innocence. He neither opted to make statement on oath under Section 340(2) Cr.P.C. nor examined any witness in his defence. Nevertheless, he tendered in evidence a copy of order Exh.DA whereby the Petitioner was removed from service. On conclusion of the trial, the learned trial Court acquitted Respondent No.3 vide judgment dated 25.3.2017. While passing the said judgment, the learned Magistrate made the following remarks against the Petitioner which has distressed him: "It is a case of embezzlement of salaries and criminal breach of trust by the Complainant who just in order to digest
(sic) the said amount had lodged false FIR regarding dacoity . During his departmental inquiry when he found no way to get rid of the allegation, he falsely nominated the accused persons and the investigation of I.O is also not fair."
3. In support of this petition the learned counsel for the Petitioner contended that the impugned remarks were not only unjustified but unnecessary for the decision of the case. Further , there was no evidence to support it. He maintained that in making the said observation the learned Magistrate was primarily influenced by the departmental authority' s order Exh.DA which was wron g. That order was bad in law inasmuch as it was passed without regular inquiry . The Lahore High Court, Bahawal pur Bench, set aside the same vide order dated 3.6.2016 passed in Writ Petition No.18981/2016/BWP and the Petitioner was reinstated in service. The learned counsel submitted that the impugned remarks were likely to adversely af fect the Petitioner 's career and should, therefore, be expunged.
4. The learned Law Officer and the learned counsel for Respondent No.3 controverted the above contentions and opposed this petition.
5. Arguments heard. Record perused.
6. The law is well settled that the courts should not pass any pejorative remarks against a person or authority not party to the proceedings and must not unjustly castigate even those who are before it. Vilipend comments against the witnesses and the counsel should also be avoided. So far as the case-law in the first stream is concerned, Emperor v. Ch.Mohd. Hassan [AIR (30) 1943 Lahore 298], is one of the earliest cases. There, a member of the Legislative Assembly and three others were prosecuted before a Magistrate of Ludhiana for an offence under clause (ii) of Section 70 of the Northern India Canal and Drainage Act, and were acquitted after a prolonged trial.
The Crown challenged their acquittal in appeal. Besides, the Crown and Ch. Sadhu Ram, who was the Superintendent of Police in charge of the Ludhiana District, at the relevant time, moved petitions under Section 561-A Cr.P.C. for expunging from the judgment certain criticisms and imputations made by the Magistrate against District Police Officer in general and Ch. Sadhu Ram in particular . The Court ruled that a "magistrate is fully justified in making criticisms in his judgment (provided he does so in restrained and decorous terms), of matters relevant to the conduct and merits of the case and of persons who are witnesses, but he should confine his criticism to matters that are strictly relevant to the issue involved. He should be careful to avoid criticisms of conduct of persons who are not witnesses, especially when they are in responsible of ficial position."
7. In the matter of expunging certain remarks made by a Magistrate against Additional District and Sessions Judge, Lyallpur (PLD 1950 Lah. 34), Muhammad Munir , C.J. observed that disparaging remarks in a judgment, whether they amount to a verdict or not, imputing crime, moral delinquency or improper conduct to a person are a constant source of uneasiness and irritation to him. They lower him in the public estimation and haunt him like a spectre for life, invariably visitin g him whenever he enters the precincts of a Court of Justice as a witness or a party . Being fraught with such serious consequences they should only be made where any hesitation or reluctance in making them would impede the ends of justice. He added: "It is again a rule, as ancient as the law itself and based on common sense and fair play, that when a Judge decides to condemn a man whether a party or witness the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the Judge' s suspicion about his conduct. A judge who condemns a man unheard acts as unfairly as if he were to convict a man without hearing him in his defence...The need for caution in makin g such remarks is much greater where the person disparaged is a public servant acting in his own independent sphere. In such cases it is absolutely necessary that the Judge' s suspicion about his conduct be communicated to him and an opportunity given to him to show cause against the view that the Judge is inclined to take of his conduct. If the officer concerned has not at all appeared before the Judge and has had no opportunity to vindicate himself, the Judge acts most unfairly , if not actually without jurisdiction, in commenting adversely on his conduct."
8. In Sh. Inayat Ullah Butt v. Cantonment Board, Rawalpindi (PLD 1957 Lah. 583), the wife of the Petitioner therein, Sh. Inayat Ullah Butt, brought a suit for an injunction restraining the Rawalpindi Cantonment Board from re- auctioning the lease of a particular land, which she had bought for Rs.2,700 at the first auction. The Commander- in-Chief of the land forces suspended the resolution of the Cantonment Board approving of the sale and ultimately when the property was re-auctioned it fetched Rs.30,000. The Senior Civil Judge in dismissing the suit observed that the plaintif f was the wife of Mr. Inayat Ullah Butt who was a Member of the Board and Chairman of the Finance and Taxation Committee which confirmed the auction in favour of the plaintif f and that it was clear that the auction in dispute was the result of some manipu lation on the part of the plaintif f's husban d. The High Court expunged the observation that there was manipulation on the part of the plaintif f's husband. The learned Single Judge observed: "It is well-settled that Courts should say nothing that is likely to prejudice a person without hearing him. The reason for this rule is that remarks made by Courts are likely to be used by interested persons against the person about whom they were made, and consequently it has been laid down in a large number of cases decided by High Courts that disparaging remarks should not be made by Courts against persons who are neither parties nor witnesses before them. The Petitioner was not a party to the suit and the fact that his wife was the plaintif f does not, to my mind, make any difference to our present purpose. The Petitioner was not a witness either and condemning him without hearing him of fends against the salutary rule followed by Courts in this respect."
9. In Sh. Inayat Ullah Butt's case the learned Single Bench went to the extent of holding that if a court makes adverse remarks against a person who is neither a party nor a witness in a case, it exercises a jurisdiction not vested in it by law or acts with material irregularity .
10. The Hon'ble Supreme Court of Pakistan approved the above views in Malik Firoz Khan Noon, Prime Minister 's House, Karachi v. The State (PLD 1958 SC (Pak.) 333) and while allowing the appeal of the then Prime Minister expunged the remarks against him. It held: "On the merits of the appeal, it would be sufficient to say that the offending remarks in the impugned judgment, can be severed from it without injuring the integrity , were unnecessary for the disposal of the case, condemned the Petitioner unheard and are surcharged with dangerous potentialities. They not only cast very damaging reflections on the Petitioner who was neither a party nor a witness in the proceedings leading up to the judgment in question, but would tend to prejudice his fair trial, if at all that opportunity for vindication is made available to him by the Complainant in the defamation case. It is , therefore, meet and proper that the passages complained of should be expunged."
11. In Ch. Muhammad Ashraf v. The State (1975 PCr.LJ 632) this Court reiterated that a judge should not fall in the temptation of making slighting comments against a stranger to the proceedings. Again, in Syed Saleh Muhammad Shah v. The State (1986 PCr.LJ 2772), the Sindh High Court held that where an adverse remark is sought to be made against such person the judge should adhere to the principle of natural justice, audi alteram partem, and in all fairness give him an opportunity of being heard before condemning him.
12. In India, The State of Uttar Pradesh v. Mohammad Naim (AIR 1964 SC 703), on the same principle, the Supreme Court blotted out sweeping remarks condemning the entire police force of a state.
13. In the second stream of cases the canon is that in expressing their opinions the courts must be guided by considerations of justice, fair play and restraint. They should animadvert the conduct of a party or a witness only so far as it is necessary for the decision of the case and is supported by the evidence available on record. A remark made on the basis of a suspicion or personal feeling must be expunged. In Panchanan Banerji v. Upendra Nath Bhattacharji (AIR 1927 Allahabad 193), the Complainant was inter alia aggrieved of certain passages in the Magistrate' s judgment against his character . Sulaiman, J. expunged them holding that "the High Court has inherent power to order a deletion of passages, which are either irrelevant or inadmissible and which adversely affect the character of persons before the court. The High Court, as the supreme court of revision, must be deemed to have power to see that courts below do not unjustly and without any lawful excu se take away the character of a party or of a witness or of a counsel before it. Such jurisdiction, however , can only be exercised when there is no foundation whatsoever for the remark objected to and not where it is a matter of inference from evidence."
14. In Izhar Ahmad Khan v. The State (1994 PCr.LJ 353) the trial Court acquitted the accused but observed that "notwithstanding their acquittal the administrative department shall be at liberty to proceed against them departmentally in accordance with law." The Petitioner took exception to the said observation contending that an elaborate charge was framed against him wherein he was not alleged to have committed any negligence. He urged that he could not be condemned for something for which he had not been indicted. This Court upheld the objection and expunged the observation.
15. The Supreme Court of India laid down the following statement of law on the subject in Mohammad Naim' s case , supra : "It is a principle of cardinal importance in the administration of justice, that the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody , even by the Supreme Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair play and restraint. ...It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) wheth er the party whose conduct is in questio n is before the court or has an opportunity of explaining or defending himself ; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety , moderation and reserve."
The above view was reaffirmed in R. K. Lakshmanan v. A. K. Srinivasan and another (AIR 1975 SC 1741), Niranjan Patnaik v. Sashibhusan Kar and another (AIR 1986 SC 819) and S. K. Viswambaran v. E.
Koyakunju and others (AIR 1987 SC 1436).
16. Now I turn to the case before me. It is true that Respondent No.3 has been acquitted in this case (and the order of his acquittal has not been assailed) but his acquittal is one thing and the question whether the Petitioner/Complainant embezzled the money is another . The observation that the Petitioner lodged a fake FIR to cover-up his own crime is not supported by any legal evidence. The learned Magistrate drew that inference on the basis of the order Exh.DA passed by his departmental authority . The Petitioner has submitted a copy of order dated 3.6.2016 passed by this Court in Writ Petition No.18981/2016/BWP which declar ed it bad in law because it was made without regular inquiry . Importantly , as discussed hereinabove, in PLD 1950 Lahore 34, this Court laid down the rule that when a Magistrate or a Judge decides to condemn a person who is a party to the proceedings or a witness, he must put the facts on which animadversion is intended to be based before that person and afford him an opportunity to explain his position. Admittedly , the Petitioner was not af forded any such opportunity .
17. The impugned remarks would not only adversely affect the Petitioner 's future prospects but also stigmatized him forever . Therefore, this petition is allowed and the said observation is expunged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.