The petitioner Fateh Muhammad an A. S. I in the Police Department along with two constables and six othere was tried by Mr. Muhammad Ayyub Khan, Special Judge Anti-Corruption, Lahore under section 161, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947. He was on duty at the annual cattle fair of Eminabad in the year 1967. The allegation against him as put to him under section 242, Cr. P. C. was that during the days of the mela he in consideration for illegal gain to himself and his two constables co-accused permitted theatrical performances and use of loudspeakers in violation of the order of the District Magistrate placing a ban on such performances and use of loud speakers.
2. After the evidence had been recorded the petitioner was examined under section 342, Cr. P. C. and the questions put to him were confined to the allegation put to thim in his first statement recorded under section 242, Cr. P. C. No other allegation appears to have been put to petitioner.
3. The petitioner produced defence witnesses including Mr. M. A. Lone, Magistrate First Class Gujranwala who was incharge of the mela. He stated that there was no violation of the District Magistrate's order regarding the exhibition of theatrical performances and use of loudspeakers.
4. After analysing the evidence with regard to the precise charge against the petitioner and his co- accused the learned Special Judge reached the following conclustion:-- "(A/l) It follows a fortiori the A. S. I ahd the two F. Cs. accused are not proved affirmatively to have demanded and accepted bribe from the theatrical causes. At any rate the charge against all the accused persons to this extent is not free from reasonable doubt."
Further on in the concluding portion of the judgment he said:-- "(A/2) I feel constrained to give A. S. I. Fateh Muhammad, F. C. Altaf Hussain and F. C. Muhammad Sharif accused also the benefit of doubt and acquit them."
5. It appears that during the hearing of the case evidence was led at the trial that the accused A. S. I. and his two co-accused F. Cs. received illegal gratification from the shopkeepers and longawalas and allowed gambling dens to function. While referring to this evidence the learned Special Judge made the following observations:-- "(B) So far as the A. S. 1. and the two F. Cs. accused are concerned evidence on the file is not wanting to show that they received illegal gratification from the shopkeepers and the tongawalas and allowed gambling dens to function with a base ulterior motive."
He further observed:-- "(C) The events chronicalled in the foregoing are proof presumptive of the fact that the conduct of A.S.I. Fateh Muhammad and F. Cs. Altaf Hussain and Muhammad Sharif has been anything but above board and as such calls for a punitive action at departmental level. A copy of this judgment should be sent to the I.-G. Police for such departmental action as he deems necessary."
6. It has been submitted by Mr. Nusar Qutab the learned counsel who appears in support of this petition for expunction of the remarks quoted above that the allegations put to the petitioner were only in respect of the violation of the order of the District Magistrate with regard to the exhibition of theatrical performances and use of loudspeakers and that the sanction Exit. P. N. accorded for his prosecution also specifically relates to this allegation and to none else. He submits that the entire evidence led at the trial with regard to the taking of bribe from the shopkeepers and tongawalas etc. was irrelevant and inadmissible and that the learned Special Judge was not competent to refer to this evidence which was quite extraneous to the facts in issue in this case and that the observations based thereon are irrelevant and should be expunged not only for this reason but also because of the fact that a departmental enquiry has been started against the petitioner in consequence of the direction of the learned Special Judge quoted at portion marked 'C' above. It is his further contention that having believed the evidence of the defence witness Mr. M. A. Lone that no violation of the order District Magistrate had taken place the learned Special Judge should have ordered the clean acquittal of the petitioner and the portion of the judgment in which it is said that Fateh Muhammad etc. were given the benefit of doubt was not in accord with the findings and requires expunction.
7. There is no doubt that the evidence with regard to the receiptof illegal gratification from the shopkeepers and tongawalas and running of the gambling dens was not at all relevant to the charge on which the petitioner and his co-accused were tried. It is surprising that neither the prosecutor nor the defence counsel objected to the admission of such evidence. In any case it was the duty of the Court itself to see that only evidence relevant to the facts in issue before it should go on record. This was not done and the case was heard in disregard of the law of evidence as a result of which all sorts of allegations were permitted to be brought on record by the learned Special Judge. I therefore find that the observations contained in Portion 'B' and 'C' were not at all relevant to the determination of the case and should not have found place in the judgment.
In this connection I may refer to Emperor v. Ataullah S/tah Bokhari (1) wherein the case- law regarding the powers of High Court to expunge remarks from judgments was exhaustively discussed by Coklstreem, J. It was observed by his Lordship:-- "It is also desirable that the judgment once delivered should remain in the shape in which it was originally published and although the practice should not be extended to exercise this peculiar power beyond limits there appears to be no good reasons why it should not be used to delete passages which though based on evidence damage was the character of a person and are wholly irrelevant to any point on issue and which a Court has unnecessarily gone out of its way to include in a judgment."
8. Now so far as the portions marked A/l and A/2 are concerned they relate directly to the merits of the case and sum up the conclusions arrived at by the learned trial judge on the basis of the evidence on the record. The jurisdiction with regard to the expunction of portions of a judgment of a lower Court is of an extraordinary nature and has to be exercised with care and caution. It is a fundamental principle of the administration of justice that the subordinate Courts should be permitted to perform their functions freely and fearlessly and without undue interference by the High Court. It is for the trial Court to weigh the evidence and to come to the conclusion on question of fact. In this case the learned trial judge has after assessing the evidence come to the conclusion that the petitioner lias to be given the benefit of doubt and I shall be laying down an extraordinary precedent if I interfere with this observation. Moreover the expunction of these two portions which directly relate to the merits of the case will result in the impairment of the judgment.
9. Tn the result T direct that portion */f* and 'C' shall be expunged from the judgment but portions marked A/l and A/2 shall remain intact.
10.I may make it quite clear that this order should not be read as a directive to stop the departmental enquiry against the petitioner or his co-accused. A number of witnesses had made statements on oath before the leavned Special Judge levelling serious charges of bribery and extortion against the petitioner and it is open to the higher police authorities to proceed with the enquiry into these charges notwithstanding the fact that expunction of certain remarks made by the learned Special Judge has been ordered on the ground that the evidence on which they were based was not relevant to the precise charge on which the petitioner was being tried. .
1972]