1. ' Applicant Sajjad Saleem, Hotiana, Sub-Divisional Magistrate, Orangi has made an application under section 561-A, Cr. P. C. For expungment of remarks in order passed by this Court on 24-7- 1985 in Criminal Miscellaneous No, 479 of 1985.
2. ' The case against Muhammad Yousif Zaman was registered under section 408, P. P. C. At Police Station Bahadurabad, Karachi on 16-4-1985 and he was granted bail by the applicant. The complainant Haji Ali Muhammad moved an application for cancellation of bail granted to Muhammad Yousif Zaman. The bail granted to Muhammad Yousif Zaman was cancelled by this Court and some observations were made. The applicant has now prayed for expungment of the remarks made in concluding paragraph of the order. I have heard Mr. I. A. Hashmi, Mr. Abdul Ghafoor Mangi. Assistant Advocate-General and Mr. Saeed A. Shaikh, Advocate-General who appeared on behalf of applicant.
3. ' Mr. I. A. Hashmi, the learned counsel appearing for the applicant contended that while passing the orders the opportunity was not given to the petitioner to explain his position. His contention is that applicant was not party in the proceeding therefore remarks could not have been passed against him in his absence. He has referred the cases reported in 1972 P Cr. L J 107, 1975 P Cr. L J 632 and PLD 1958 SC 353. He has further argued that at the time of hearing of cancellation application some recorded facts were not brought to the notice of this Court.
4. ' Mr. Abdul Ghafoor Mangi, the learned A. A.-G. Has argued that the High Court is competent to expunge the remarks already made in the order. He referred to a case reported in AIR 1964 SC 703 and submitted that applicant is a young officer and was holding charge of the jurisdiction for about a week and the remarks of this honourable Court will affect his carrier.
5. ' Mr. Saeed A. Shaikh, the learned A.-G. Submitted that lenient view may be taken and remarks may kindly be expunged.
6. ' The notice was issued to the Advocate for the complainant Mr. Alyas Khan but he did not appear.
7. He has not even sent any application for adjournment. He was informed about the date on 18-8- 1985 when he was present. The main contention of the applicant is that on 11-5-1985 surety was produced before him but inadvertently he had not mentioned in the order that he should produce solvency certificate and that is why on 12-5-1985 it was observed in the order that solvency certificate has been produced when bail was confirmed. It has been argued that applicant has not tempered with the record. The cases referred by Mr. I. A. Hashmi that applicant was neither party to the proceedings nor show cause notice was issued to him cannot be sustained on the ground that on 11-5-1985 my brother Justice Sajjad Ali Shah has passed the following order :-- "Issue notice to the respondent to show cause why his bail should not be cancelled. Issue notice to the learned A.-G. And explanation in writing may be called from the learned Magistrate as to under what provisions of law and authority he has passed the said order without stating facts and reasons and without giving notice or hearing to the counsel for State. Txplanation must reach this Court within seven days. Adjourned to 22-5-1985."
8. ' The applicant submitted his explanation on 25-5-1985 but did not appear himself on 10-6-1985, 13-6-1985, 30-6-1985 and 14-7-1985. The application was adjourned and finally on 23-7-1985 the arguments of the counsel including Mr. Abdul Sattar Shaikh, Additional Advocate-General appearing for the State as well as for the respondent No, 2 the petitioner were heard and finally order was passed. Therefore from the above circumstances and facts the petitioner was given an opportunity and state was also heard. He cannot say that opportunity was not given to him. Now, I proceed to consider whether these remarks will have effect on the career of the petitioner. I am of the view that definitely this will have effect on his future and present postings as a Magistrate. More so a copy of alleged surety bond taken by the petitioner on 11-5-1985 has been produced. The contents of bond and his order are as under :- Surety Bond "In the Court of S. D. M. Orangi, Karachi. Name of this surety:- Perwaiz Hayat son of Late Sh. M. Hayat r/o A/229 Block No, 2 Gulshane Iqbal Karachi.
9. ' I know the accused/applicant, Muh1mmad Yousif Zaman and I shall produce the accused/applicant on each and every date in the Court.
10. ' If the surety could not be brought on the date of hearing, I shall pay a sum of Rs, My property is valued at Rs, 58,000.
11. ' I Perwaiz Hayat son of Late Sb. Hayat on solemn affirmation state that I have my car size Model 1984 bearing No, 166-178.
12. ' Its value at present is about Rs, 58,000.
13. ' Whatever is stated above is true and correct, Identified by me as per papers. N. I. Card No, 518-46- 037671.
14. (Sd.) Illegible.
15. (Sd.) Illegible. (Perwaiz). Surety.
16. ' Surety accepted in the sum of Rs, 20,000 (Rupees twenty thousand) and P. R. Bond in the like amount.
17. (Sd.) Illegible.
18. 11-5-1985."
19. ' He has submitted that due to mistake he has not mentioned in the order that surety to produce solvency certificate on the next date. There is some force in his contention but I do not fully agree as the order passed by him was a final one. Since no counter affidavit has been filed by the complainant and no record contrary to this submission has been placed before me. I take a lenient view. The case reported in AIR 1964.SC 703 is relevant. In this case it has been held that the State could apply under section 561-A, Cr. P. C. For expungment of adverse remarks against the police force or State functionaries and also it has been observed that A High Court in exercise of inherent powers can expunge the remarks in exceptional circumstances. Taking into consideration all the above factors maintain my order passed on 24-7-1985 but direct that the following paragraph be expunged from the order.
20. "This.Is a serious case and in my opinion the Magistrate is not fit to hold judicial post. A copy of order be sent to Government of Sind."
21. ' This application is disposed of to the extent of above observations,