1. Appellant Muhammad Afzal, who was a Sub-Inspector of Police at the time, he filed this application on 29-5-1983, seeks expunction of remarks passed by Assistant Commissioner/ A.C.M. Court NO.VIII, Karachi (South) by order dated 28-3-1983 in respect of a challan submitted by him (the petitioner) in Crime No. 44/82 registered at Railway Police Station, Karachi, on 11-10-1982.
2. The facts in background, briefly stated, are that Divisional Pay Master, Pakistan Railways, Karachi forwarded a written report dated 11-10-1982 to the S. H.O. Railway Police Station, Karachi that a Trains Clerk at Hyderabad by name Manzoor Ahmed son of Umar Din had attempted to receive fraudulently from Muhammad Mushtaq Javed, Sub-Pay Master, salary of another Trains Clerk by name Salim Akhtar, amounting Rs.402.50.
3. A case under sections 420 and 170, P.P.C. Was registered against the said Manzoor Ahmed by Syed Ejaz Hussain Shah S.H.O. After completion of the investigation and after obtaining opinion of the prosecution cell, a challan was submitted in the Court of the Assistant Commissioner/ A.C.M. Court No.VIII, Karachi (South), who was also Special Magistrate, Pakistan Railways Division, Karachi, on 18- 1-1983, for proceeding against the accused for having committed an offence punishable under section 420/511, P.P.C. The learned Magistrate returned the challan with the endorsement that the accused was a public servant and the facts alleged constituted a scheduled offence under section 5 of the Criminal Law Amendment Act, 1958 and it was triable by the Special Judge (Central) Anti- Corruption, Karachi. The papers were passed on to the applicant who was then S.H.O. Railway Police, Karachi on 17-1-1983. The Railway Police did not adopt the line suggested by the learned Magistrate and maintained that no offence was made out under the Act II of 1947 as to have attracted the, jurisdiction of the Special Judge, Anti-Corruption. The learned Magistrate corresponded with the S.P. Railways but his view point was not carried out. Ultimately, he passed the impugned order directing the S.P. Pakistan Railways, Karachi to get the crime re-investigated on the lines indicated by him. In his order, the learned Magistrate made certain adverse remarks about the efficiency in performance of the Railway Police personnel. Feeling aggrieved by these remarks, the applicant has filed this application to get them expunged.
4. The learned counsel appearing for the applicant has urged that the learned Magistrate has made uncalled for remarks against the applicant and they have adversely affected his service career. He has made pointation of the specific remarks directed against the applicant.
5. They are contained in paragraphs 7, 9 and 16 of the order which read as under "7. Instead of either complying with the clear cut order of this Court mentioned in para. No. 5 (Supra) (Besides the P.S.I's. Detailed instructive letter for carrying out the Courts' order detailed in the foregoing para.) or, preferring an appeal against the order in the appellate Court, the present S.I.P. Muhammad Afzal S.H.O. Railway Police Station Karachi City has adopted procrastination and obduracy.
9. Rather piteous is the case of the P.S.I. Mr. Mughal, who somehow or the other has been made to ditto the line, with the present Investigating Officer, S.I.P. Muhammad Afzal, S.H.O. Railway Police Station, Karachi City despite his earlier instructions to him for compliance of this Court's order referred to in para. 6 (supra).
16. Furthermore the conduct of the P.S.I. Mr. Shafi Muhammad Mughal as also the S.I.P. Muhammad Afzal, S.H.O., Railway Police Station, Karachi City in dilly-delaying the compliance of this Court's earlier order instead of agitating their professed legal know-how in the appellate Court is rather an affront and is hereby depreciated; whereof necessary legal action by this Court being contemplated. It will be in the interests of justice. If the S.P. Also considers the propriety or otherwise of taking necessary disciplinary departmental action against bath his subordinate delinquent police officers under intimation to this Court. A copy of this order shall be forwarded to the concerned authorities for doing the needful."
6. The learned Magistrate seems to have felt annoyed over non-compliance of his directions that the crime may be investigated as a corruption case on the lines suggested by him. He has remarked in paragraph No. 7 of his order that the applicant Muhammad Afzal S.I.P. Had adopted "procrastination and obduracy". His remarks in paragraph No. 9 are directed against one Mr. Mughal P.S.I. But the name of the applicant also has been introduced that his line of action had been adopted by the P.S.I. Mughal. In paragraph No.16, the learned Magistrate has accused the applicant of having indulged in "dilly-delaying the compliance of his Court's earlier order instead of agitating their professed legal know-how in the appellate Court" and it was rather affront and that action was depreciated.
7. The learned counsel appearing for the State has contended that the learned Magistrate has gone out of way in engaging him in the controversial issue and making aspersions on the applicant and others on their performance in their own field. He has opined that the remarks 'imputed to the applicant are uncalled for.
8. It appears from the order made by the learned Magistrate that the Railway Police submitted in his Court a challan for proceeding against an accused for having committed en offence punishable under section 420/511, Cr.P.C. He entertained the opinion that the facts alleged constituted a different offence cognizable by the Special Judge (Central), Anti-Corruption, Karachi. The Railway Police still held the view that the facts alleged did not constitute any offence punishable under Corruption Laws. Thus, there was difference of opinion between the learned Magistrate and the Railway Police Department on a question of Law. After returning-the challan to Railway Police holding the view that the offence which had been committed was not cognizable by him, the learned Magistrate became functus officio and he had not to involve himself in the investigation commission of a crime that was, according to him, cognizable by another Court. His remarks in respect of the performance of the applicant subsequent to the return of the challan were without jurisdiction and they stand expunged.