S.M. ZUBAIR, J.- This is an application by Mr. Muhammad Ghani, an Advocate of this Court, under section 561-A, Cr.P.C., seeking expunction of certain derogatory/disparaging remarks recorded against him in the order, dated 23-11-1991, passed by Mr. Khalid Mian, Additional Sessions Judge, Lahore, while dismissing application under section 526(8) Cr.P.C., filed by the petitioner as a defence counsel on behalf of Zulfiqar etc. Accused.
2. The facts, in brief, relevant for the decision of this petition, are that the petitioner appeared as a defence counsel on behalf of Zulfiqar and Salamat alias Teddy, who were involved in a case- registered against them vide FIR No.506/91, dated 1-8-1991, under sections 10 and 11 of Ordinance VII of 1979, at Police Station Model Town, Lahore. It appears, upon re-investigation, the police got the accused discharged from the learned Magistrate, after obtaining opinion of the District Attorney and the S.P. (Legal), whereas according to the learned trial Judge, this discharge order was bad in law, as it was passed after he had taken cognizance of the case. The accused, through the petitioner, moved an application, dated 23-11-1991 for stay of proceedings before Mr. Khalid Mian, the trial Judge, with a view to filing transfer application in this Court, which was dismissed by Mr. Khalid Mian vide order dated 23-11-1991, wherein he passed the following remarks which, as per the assertions of the petitioner, are derogatory and disparaging:-
(i) "The application is disallowed simply because it is full of white lies. Baseless, false and scandalous allegations."
(ii) "Let me make it clear at this stage that since a Retired Officer of the High Court itself had indulged in this case in active collaborations with Mr. Muhammad Ghani. Advocate, who happens to be a friend. Therefore. I have taken all the three Advocates in confidence in open Court on the last date of hearing viz: 19-11-91 regretting to be a party to AND unlawful proceedings ???.
(iii) "They have withheld something which they may exploit at their own choice and convenience. I had taken Mr. Ghani in confidence as an officer of this Court and told him frankly of the developments in open Court. He has tried to black-mail mv position in clear disregard of his personal involvement and professional ethics."
(iv) !No power of attorney had ever been fried in this case and he was recognized to represent the accused in routine and it was, as usual that almost on each date he was always marked present bv was of courtesy because according to him he had previously filed power of attorney on behalf of these very accused in murder case, since decided."
(v) "The learned Advocate did not muster enough courage to concede in the petition that he had inspected the i.e on 21st with permission after I was shown the new power of attorney executed in his favour bv the accused Zulfiqar present on that date brought by the police guard even after court hours as incorporated in mv order of that date. He did not even wrote the word 'inspected' on the inspection slip, which had initially been declined bv me few want of a power of attorney. This Court does not believe in tearing the power of attorney."
(vi) "The order dated 21-11-91 had been dictated in the face of Mr. Ghani. Muhammad Aslam and Ghulam Mohvuddin Advocates. Mr. Ghani had wilfully concealed this fact too."
(vii) "There is no substance in the petition rather than black-mailing, exploiting and scandalising the position of this Court for ulterior motives".
(viii) "I am being asked over phones through different sources to transfer this i.e for personal reasons, telling me that for submittal/discharge of the accused, illegal gratification have already passed hands. The same may be a had and glove affaire of the advocates and their allies connected with the case."
(ix) "I reject the frivolous application designed at perpetuating the illegality of M.I.C, and proceed with the case."
3. The petitioner, who argued the case himself, feels aggrieved by the whole tenor of the remarks, particularly the underlined portions in the passages quoted above, and seeks expunction of the same by submitting that the impugned remarks are not supported by the record; are highly derogatory and disparaging; impute unworthy conduct to him; accuse him of having disregarded professional ethics; have gravely reflected upon his integrity, honesty, reputation and good name; are libellous and calculated to injure him by lowering him in the estimation of his fellow- practitioners, the litigant public as well as in the eyes of mankind; virtually amount to his wholesale condemnation; betray want of sobriety, judiciousness and moderation with the hall mark of judicial mind. These remarks were not actuated by an honest desire to further the ends of justice and were the result of sheer retaliation of personal feeling, the trial Judge recorded the impugned remarks without even holding any enquiry whatsoever into the alleged suspicious circumstances, and the petitioner had been afforded no opportunity, at all, to explain his position. The petitioner vehemently contended that these remarks were neither relevant for the just decision of the application nor were based on anything on record and that the acute laser-beam of criticism steeped in personal vituperation by the trial Judge exposed his malevolence of a personal type calculated to damage the reputation and good name of the petitioner, who is a senior Advocate of this Court. The petitioner, then dealt with each offending remark, one bv one, to demonstrate that the same had no real basis either on facts or in law.
4. At the outset, it was submitted by the petitioner that the remarks, viz: "The application is disallowed simply because it is full of white-lies, baseless, false and scandalous allegations" were contrary to the record. After referring to certain proceedings initiated at the instance of Zulfiqar Ali, accused, it was mentioned in the application, dated 23-11-1991 that a discharge report prepared by the local police had been forwarded to the trial Court which had been returned, without orders in writing, but with verbal direction that the same should be returned for submission to the Ilaqa Registrate for orders. This averment was taken exception to by the trial Judge by observing: "Neither any supplementary challan or papers were received in the Court from the police nor had any direction verbally or written been given to any of the officials of the Court including the Naib-Court and the Reader to return any papers. None was brought to the notice of this Court at any point of time". In support of his plea, the petitioner has, along with his application, placed on record photostats (at pp.39-40) from the Diary Register of the District Attorney, Lahore, which proves that the discharge report in the Hadood case was sent to the Court of Mr. Khalid Mian, ASJ on 18-11-1991, whereas discharge report in the case under the Arms Ordinance against the same accused was sent to the Ilaqa Magistrate. The photostat copy of the Diary Register of the District Attorney available at pages 39-40 of the i.e shows that on 19-11-1991, the District Attorney sent the discharge report in the Hadood case to the Ilaqa Magistrate. The petitioner submits that in the presence of this evidence, if it was mentioned in the application that the discharge report in the Hadood case was, in the first instance, sent to the Court of Mr. Khalid Mian, was forwarded to the Ilaqa Magistrate, the averment could not be said to be without basis. In the presence of this evidence, the learned Judge was not"justified, in law, to turn the application as "full of white-lies and baseless" hence the remarks contained at serial No. (i) above are contrary to the record and liable to be expugned. The petitioner further submitted that the averments made in the application presented before the learned Judge have now been affirmed by the report submitted by the learned Judge himself in this Court wherein it was mentioned as follows:- ' As a matter of fact, Ch. Muhammad Afzal, retired Addl. Registrar, Lahore High Court reached my home in the morning of 19th November, 1991. On coming out to proceed to office, I guessed him to have come on the conveyance of the accused party. Sitting in my conveyance, on way to the Court, he .Broke the news about a report having reached my Naib Court with the recommendation of the police without intervention of the Magistrate, for discharge of the accused. I pleaded ignorance about any such instrument for want of knowledge and told him frankly that after sending up the case, discharge was a legal impossibility. He added that the matter had been discussed with Mr. Muhammad Ghani, Advocate, according to whom discharge was possible. On my reminding that I had accommodated the composition of offence in the murder case, because the same was legally permissible, and that the Hadood case could either be withdrawn by the State or the investigating officer may request for the release of the accused on the basis of any fresh investigation leading to their absolve ment from the case and that no third alternate could be countenanced on the legal plane. Having accompanied up to my retiring room, Ch. Muhammad Afzal requested me to ask Deputy District Attorney to return the papers for being routed through the Ilaqa Magistrate. I regretted to indulge and desired him to deal with the Law Officer directly."
The petitioner submitted that in view of this report, the affidavits of Mushtaq Naz and Ch. Alta Muhammad, father of Zulfiqar, accused, containing serious allegations against the Deputy District Attorney attached to the Court of Mr. Khalid Mian have assumed significance and importance.
5. It was next contended that the averments made in the application, dated 23-11-1991 that on 19- 11-1991, the petitioner did not appear in the Court of Khalid Mian, because he was away to Sargodha in connection with his professional engagements is supported by the affidavits of Ch. Muhammad Aslam, Advocate, Lahore; Malik Ghulam Mustafa, Advocate, Sargodha, and Raja Shamsher Ali, Branch Manager, United Carpets Ltd., in whose case the petitioner appeared in the Court of Mr. Muhammad Latif Qureshi, Additional Sessions Judge, Sargodha, on 19-11-91, in an appeal titled Mst.
Khair Bibi alias Khawar Sultana vs. Province of Punjab. The fact that the petitioner did not appear before Mr. Khalid Mian, ASJ, on 19-11-1991 is further established from the record of the Court itself, as is apparent from the interim order, dated 19-11-1991, in the case 'State vs. Zulfiqar and others', which reads as follows:- Present.
Seth Abdul Rehman OPA for the State. All the three accused in custody.
After perusal of police report, statement of witnesses and the documents filed by the prosecution, I am of the opinion that there are sufficient grounds to proceed with the trial. Let a formal charge be framed.
Sd/- Khalid Mian, Addl. S.J. Lahore.
Presence: As before.
Formal charge has been framed. It has been read over and explained to the accused. They plead not guilty thereto and claim trial under the law. Now the prosecution witnesses be summoned for recording of their evidence on 23-11-1991.
Dt. 19.11.1991.
Sd/- Khalid Mian, Addl. S J. Lahore."
The petitioner submitted that from the record of Criminal Misc. No.219-T of 1991 as well as from the affidavits referred to above, it is proved that the petitioner was not in Lahore on 19-11-1991, hence the occasion for him to have, in any way, collaborated with Ch. Muhammad Afzal, a retired officer of this Court, did not arise, nor there could, in the circumstances, be any occasion for the trial Judge to have recorded the offending remarks at serial No. (ii) above.
6. The petitioner has also referred to the statements of the accused in Urdu recorded on 19-11-1991, which are at page 80 of the i.e. In these statements, the date under the signatures of Zulfiqar Ali had been recorded as 21/11/1991 and had been mutilated and changed into 19.11.1991. Similarly, Salamat accused had signed his statement in Urdu on 28-11-1991, as is clear from the date under his signatures which corroborates the statement of Zulfiqar accused in the application dated 23- 11-1991, filed under section 526(8) Cr.P.C., that the date 21.11.1991, under his signature had been mutilated and changed into 19-11-1991. In this context, the petitioner relied on the order of this Court dated 17-12-1991, passed in Crl. Misc. No.291-T-1991, while transferring the trial of the said case from the Court of Mr. Khalid Mian to that of the then learned Sessions Judge, Lahore, relevant portion of which reads as follows:- "Anyhow, he conceded this fact that the learned Judge on 20.11.1991 directly rang up the Jail authorities that Zulfiqar petitioner should not be released from Jail till the order is passed by him, and this fact has been confirmed by Riaz Pervaiz, Assistant Superintendent Camp Jail, Lahore, who made statement before this Court on 17-12-1991.
Without deciding this controversy whether the date of the charge sheet was changed or not, it has been proved beyond reasonable doubt that the learned Addl. Sessions Judge has shown some extrajudicial interest in the decision of this case, such as, he personally rang up the jail authorities directing them not to release Zulfiqar petitioner, as is apparent from the statement of Riaz Pervaiz, Assistant Superintendent and the affidavit of Ch. Muhammad Aslam, Advocate".
7. So far as the remarks at serial No. (iii) above are concerned, it was argued that the same were recorded to counter an averment in the application, dated 23-11-1991 that the case was originally fixed for 8-12-1991 but the hearing was, later on, accelerated to 23-11-1991. Mr. Khalid Mian, after observing that- "The case was never adjourned to 8-12-1991" recorded the said remarks at serial No. (iii) above. My attention has been drawn to the order, dated 19.11.1991, passed by Mr. Khalid Mian wherein he had mentioned "Let the bail petition be adjourned to 8-12-1991". It is argued that it does not sound to reason that the trial should have been fixed for 23-11-1991 but the bail application adjourned to 8- 12-1991. The petitioner also placed reliance on the following statement of Khalid Mian himself in his comments, now submitted by him to this Court:- "The case was called out on its turn. The charge was framed in the presence of three accused in attendance. On being read over and explained to them, however, the accused pleaded not guilty thereto. Consequently, the case was fixed for summoning of the prosecution ' evidence for 8-12- 1991".
Thus, the version of the accused as contained in the application, dated 23-11-1991, moved on their behalf by the petitioner, regarding the fixation of the trial initially for 8-12-1991, having now been categorically admitted by Mr. Khalid Mian, Addl. Sessions Judge himself, there could neither be any reason for his having taken exception to such a statement in the application dated 23-11-1991, nor for recording the offending remarks against the petitioner, the averment being factually correct.
8. With regard to the remarks at serial No.(iv) above, it was argued that the same were recorded with reference to another ground mentioned in the application, dated 23-11-1991 that though the petitioner was a counsel for two of the accused and had also filed Power-of-Attorney on their behalf, but when on 21- 11-1991 he applied for supply of certified copies of certain documents and also for inspection of the judicial i.e, the learned trial Judge not only rejected both the applications by recording on the one for inspection: "Disallowed for want of Power-of-Attorney" and by observing on the other: "Sorry. Applicant is not an Advocate-Pleader" but the manner in which he did was highly derogatory. The second part of the ground was admitted correct by Mr. Khalid Mian in the impugned order wherein he observed: **** therefore, I had used the words and regretted his request". So far as the first part of the ground is concerned, he recorded the offending remarks at (iv) above. My attention has been drawn to the application, dated 23-11-1991, to show that the petitioner had nowhere said that since he had filed power-of-attorney on behalf of the accused in the murder case, therefore, he had the right to represent them in the Hudood case as well. On the other had, he had unmistakably mentioned that he had filed Power-of-Attorney in the Hudood case itself and it was thereafter that he was marked present as defence counsel. The petitioner also placed reliance on the order dated 7-11-1991 (p.75 of the i.e) wherein the learned trial Judge had himself recorded the petitioner's presence as one erf the defence counsel, to contend that in the circumstances, to say that the petitioner was not an "Advocate- pleader" or that he could not inspect the i.e "for want of power-of-attorney" was totally against the record of the Court.
Moreover, in the second order, dated 19- 11-1991 the petitioner was treated by the learned trial Judge himself that he was one of the defence counsel. Not only that, in the order dated 21-11-1991 which was passed in the morning by Mr. Khalid Mian when Zulfiqar Ali, accused, was produced before him from Jail, the name of the petitioner finds place therein as one of the defence counsel.
Clearly, therefore, the plea of the petitioner in the application, dated 23-11-1991 that he had filed Power-of-Attorney on behalf of the accused was not without basis.
9. The petitioner next submitted that the offending remarks at serial No. (v) above were also against the record of the Court itself. My attention in this behalf has been drawn to paragraph 12 of the application dated 23-11-1991 itself, wherein the petitioner had unmistakably mentioned as follows:- "The inspection of the i.e by the undersigned has revealed that the date "21.11.1991" under the signatures of Zulfiqar, accused, is mutilated as changed into "19.11.1991".
Thus, the remarks of the learned trial Judge have been proved to be against the record.
10. While dealing with the remarks at No. (vi) above, it was argued by the petitioner that he had nowhere concealed the order, dated 21.11.1991. In fact, paras. 8 to 12 of the application were devoted towards the proceedings, as well as to what had happened in the Court of Mr. Khalid Mian, Addl.
Sessions Judge, Lahore, on 21-11-1991. It seems, exception was taken to the statement in the application that the order, dated 21-11-1991 was dictated after the petitioner had left the Court. Be that as it may, to say that the petitioner had "wilfully concealed", the order dated 21-11-1991 is poles apart from a definite averment that the order was dictated when the petitioner had left the Court.
There is no element of concealment. At any rate, there is nothing on record to show that the order, dated 21-11-1991 was, in fact, recorded in the presence of the petitioner. On the other had, its bare perusal proves otherwise. Therefore, the said impugned remarks are destitute of any valid foundation.
11. The remarks at serial No. (vii) are of general and proceed on the assumption that the application was baseless which assumption, as has been shown above, was factually not correct; hence the remarks cannot be sustained.
12. With regard to the impugned remarks at serial No.(viii) above, it was contended that since it has nowhere been said by the learned Judge that the petitioner was one of those persons who had talked to him over phone for transfer of the case, nor it is his case that any one of them who had conversation with him had, at any stage, said that the petitioner had, in any way, associated or identified himself with those responsible for any illegal act, the remarks, based, as they are, not on any surer ground but being the outcome of mere surmises and conjectures, cannot be sustained in law. Reliance in support of the submission was placed on Ghumanmal v. Emperor (AIR 1944 Sind 133) where it was remarked as follows:- "It is not fair to make such remarks mainly upon conjectures or surmises or when the Court is itself so uncertain of its ground as to preface its remarks with the words 'it may be **' or 'perhaps The learned trial Judge has not disclosed even the source of his information or as to who rang him up. At least, the petitioner could not be, because if anybody had named him, Mr. Khalid Mian would not have used the word "may" nor he would have kept secret his name, in particular in view of his frame of mind towards the petitioner while recording the impugned remarks.
13. With respect to the derogatory remarks appearing at serial No. (ix), the petitioner submitted that there was no justification or material on the record on the basis of which the learned trial Judge could make those remarks while dismissing the transfer application that it is full of "white lies, baseless, false and scandalous allegations". Even there is no evidence available on the record to impute such remarks to the petitioner, who made the application. The petitioner submitted that there is no evidence on the record to show that Ch. Muhammad Afzal was acting in connivance with or in collaboration with him, and he has also referred to the comments submitted by the learned Additional Sessions Judge called by this Court in the transfer application, wherein the learned Judge said:- "I maintain categorically that the petitioner was personally involved in the matter for his personal gains in order to achieve which, he did not even hesitate to crosse the limits prescribed by his profession. Since the petitioner's version had been whispered into my ears by Ch. Muhammad Afzal, as his spokesman, with whom I had personally witnessed him, after a conference even in this very matter, allied with the murder case, even previous to entrustment of the, cases to me.
Therefore, I had no option but to introduce the required facts on the record simultaneously exercising a restraint in exposing the situation, the ex-colleagues and erstwhile friends beyond the inevitable limits".
The information allegedly conveyed by Ch. Muhammad Afzal to the learned Judge is mere hearsay, as neither Ch. Muhammad Afzal appeared in the Court to make statement nor he has furnished any affidavit; (tenet the' learned judge should hot have made these remarks on the basis of the material which is not admissible under the Qanun-e- Shahadat.
14. There is great force in the submission of the petitioner that the learned Judge while making these remarks for which the expunction is sought has not exercised his power with sobriety or due sense of responsibility. He has referred to the following observations of this Court made in Criminal Misc. No.29t-T-91, vide order dated 17-12-1991:- "Even the learned Judge made certain uncalled for observations against the conduct of the learned defence counsel, which could have been avoided while dismissing his application under section 526(8) Cr.P.C., by his order dated 23-11-1991".
The petitioner also cited The Crown vs. Attaullah Shah Bukhari ((1936) 38 P.L.R.636), in which it has been observed that it is the duty of the High Court, in order to prevent abuse of the process of the Courts and secure the ends of justice, to delete passages commenting adversely upon a person, who is not a party to the proceedings and has not had a fair opportunity of being heard, and also to delete such passages when they are based upon no evidence or evidence not properly upon the record; as well as those passages which, though based on evidence, damage the character of a person; are wholly irrelevant to any point in issue, and which, a court has unnecessarily gone out of its way to include in a judgment. Reference was also made to Kumar vs. S-S. Bnna (AIR 19S7 Allahabad 398), which was also against a lawyer and it was observed by their lordships:- "The High Court is very jealous in guarding the independence of Magistrates and Judges subordinate to it and encourages them to feel that they can fearlessly give expression to their opinions in the judgments which they deliver. *?***"
It was, however, held: "But three necessary limitations prescribed are: first, no person should be condemned unheard, second, in making his criticism the Magistrate or Judge should not travel outside the record; and third, the criticism should be made with sobriety and a due sense of responsibility."
Lastly, the petitioner cited a judgment reported as In the matter of exnunyiny remarks from judgment (P.L.D. 1950 Lahore 34). The following observations of his lordship late Chief Justice Muhammad Munir at page 41 of the Report are aptly applicable to the facts and circumstances of the instant case:- "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 specter for life, invariably visiting 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. Persons making or publishing such remarks, whether true or not, are not liable for libel or for defamation because in the former case they are protected by common law and in the latter by statute, the reason being that unless Judges had the power to make bold and fearless comments on the evidence given before them they would not be able effectively to discharge their functions. These two conflicting considerations must always be present to the mind of a Judge whenever he is called upon to criticise the character and conduct of a person. On the one had he should weigh the gravity of the damage that his remarks would cause to the person concerned and on the other he. Must realise that he owes a duty to the parties, the public and the appellate Court of stating in full his reasons for the view he takes of the evidence. It is again a rule, as ancient as the lawful 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 given 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. Persons who are attributed ignominious or improper conduct in judicial determinations, though they were neither parties nor witnesses in the cause, have, therefore, a just cause for complaint against this unfair treatment and the law reports are full of precedents where in the circumstances mentioned High Courts expunged the offending remarks. The need for caution in making 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 vindicate himself, the Judge acts most unfairly, if not actually without jurisdiction, in commenting adversely on his conduct. And a Judge who makes his position in Court a mere pretext to condemn another person for personal reasons does not act as a Judge at all; here is a mere party who has arrogated to himself the position of a Judge.
15. After going through the case-law minutely and hearing the petitioner, I find that the impugned remarks made by the learned Judge are contrary to the case-law referred to above and contrary to the record; these were made without hearing the petitioner who is an eminent Advocate of this Court. This court has already observed while deciding the transfer application that these remarks were wholly uncalled for and without justification.
16. The upshot of the above discussion is that the remarks made by the learned Judge appearing in paragraph 2 ante, were made without observing the principle of law referred to above and were not necessary Sot the just decision of the case; hence while accepting this petition the impugned offending remarks are hereby expunged.