' Through this application filed under section 561-A, Cr.P.C. All Gohar Khan S.I.P. Seeks expunction of certain remarks relatable to him, in the judgment dated 30th March, 1988, by which accused Farhat Ali and others involved in Crime No, 183 of 1986, P.S. Baldia were acquitted under section 249-A, Cr.P.C.
2. Applicant Ali Gohar Khan is working as S.I.P. He was posted at Police Station Baldia when he registered a report lodged by Muhammad Akhtar against Farhat All and four others for the offence under section 506-B/34, P.P.C. The applicant investigated the case and after completing the same sent up the accused to stand trial. The case proceeded before A.C.M. No, II (West) Karachi, who examined Muhammad Akhtar (P.W.1), and then acquitted the accused under section 249-A, Cr.P.C.
While recording the judgment of acquittal, the learned Magistrate observed as follows:- "From the perusal of the above quotations of the version of complainant Muhammad Akhtar from his evidence placed at Exh.3/A, it is very much clear that S.I. Police Ali Gohar Khan had cleverly diverted a murder case on wrong lines proving that she was already alive during the morning hours on 5-7-1986 while she was suspected to be murdered on 3/4-7-1986. This act on the part of Investigating Officer is not only misuse of his powers but he by himself has made a party in a murder case by providing illegal help to the real culprits. Thus, he has proved himself to be prosecuted under the law if the murder of the mother of complainant is proved to have been committed on 3-7-1986 and it can easily be verified from the date of post-mortem report of the dead body of deceased lady."
3. In the concluding paragraph of the judgment, the learned Magistrate remarked:- "It is also ordered that investigation shall be taken up against S.I.P. All Gohar Khan and if it is proved that he had provided unnecessary coverage to accused persons, if any he shall also be joined in murder case of the mother of complainant."
4. According to the applicant the above remarks amount to verdict imputing crime, moral delinquency and improper conduct against him, which, if allowed to stand, would harm his career.
5. I have heard Mr. Gul Zaman Khan, learned counsel for applicant and Mr. Imam Bux Shaikh, learned counsel for State. The latter has supported the application for expunction of remarks.
6. Admittedly out of nine witnesses including the applicant who had investigated the case against Farhat Ali and others, the learned Magistrate examined only one, viz. Muhammad Akhtar and then proceeded to acquit the accused under section 249-A, Cr.P.C. The evidence of Muhammad Akhtar (P.W.1), revealed that the murder of his mother had taken place and he had gone to Baldia Police Station to lodge report. The applicant who was posted at Baldia Police Station, however, did not record correct F.I.R. And instead lodged the F.I.R. For the offence under section 506-B/34, P.P.C., with a view to screen the accused from the charge of murder.
7. Where a Magistrate is reasonably convinced, on what has been already deposed that a criminal charge cannot be sustained, section 249-A, Cr.P.C. A relieves him from the necessity of going on with the trial. However, in a situation like this the principles of natural justice demand that applicant should have been examined to explain his position. It is a principle of natural justice that no one should be dealt with to his material disadvantage without having an opportunity B of being heard.
' A Police Officer is not immune from judicial censure. The testimony and conduct of a Police Officer examined in a trial may also be commented upon to the degree as those of other material witnesses, but before it is done he must be C examined. He cannot be condemned merely on the statement of one witness, who had obviously compromised with accused persons which is evident from the documents placed on record.
9. A Magistrate is fully justified in making criticism in the judgment of matters touching the merits of the case, but whenever this is done, it should be confined to the matters that are strictly relevant to the point involved in the case. As an eminent lawyer once remarked. 'The pen of the Judge and the tongue of the lawyer should be just like the knife of a surgeon, which probes into the flesh only as much as is absolutely necessary for the purpose of the case before it'.
10. On reading the judgment recorded by learned A.C.M., it is clear that the applicant was condemned unheard on the basis of the testimony of a solitary witness, who arrived at a conclusion on irrelevant consideration. The cases reported as Emperor v. Brijlal and others AIR 1942 Lah. 232, Ghumanmal Godhumal v. Emperor AIR 1944 Sind 133, The State v. Mujahiduddin Faridi PLD 1959 SC (Pak.) 123, Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51, Rasheed Hassan Siddiqui v. The State 1971 P Cr. L J 1207, P.C. Sampson v. The State 1972 P Cr. L J 1299, Ch. Muhammad Ashraf v. The State 1975 P Cr. L J 632 and Abdul Rashid v. The State 1987 MLD 849 are leading cases on this subject.
11. As observed in the last cited authority, the powers under section 561-A, Cr.P.C., for expunction of remarks are to be exercised with great caution and circumspection. The adverse remarks in judgment which are found to be unjustified should be separable and severable in order to be expunged from judgment. The remarks reproduced in para. No,3 ante, are easily separable as the same do not form integral part of judgment resulting into the acquittal of accused Farhat Ali and others, and therefore, the isolation or detachment of the above two passages will not affect the whole fabric of judgment and will not destroy its efficacy.
12. For the reasons mentioned above, the above remarks against the applicant are unjustified, unwarranted, and uncalled for and should be expunged. I, therefore, accept the application under section 561-A, Cr.P.C. And direct the expunction of the above passage from the impugned judgment.