' SYED DEEDAR HUSSAIN SHAH, J.---Petitioner seeks leave to appeal against the judgment of the High Court of Sindh, Bench at Sukkur, dated 11-12-2002, passed in Criminal Revision No,52 of 2001.
2. Precisely stating the facts of the case are that the petitioner filed Direct Complaint No,84 of 2001, under sections 420, 467, 468, 471, P.P.C. Read with section 5(2) of the Prevention of Anti-Corruption Act, 1947, in the Court of Special Judge Anti-Corruption, Sukkur. On receipt of the complaint, learned trial Court recorded the statement of the complainant under section 200, Cr.P.C. And directed to hold preliminary enquiry under section 202, Cr.P.C. The complainant was directed to produce evidence, but no evidence was produced by him. The learned trial Judge after hearing the arguments vide order, dated 18-8-2001 decided to take cognizance against the accused persons except respondent No,1 Dr. Abdul Wahid Abbasi, Medical Officer; Civil Hospital, Sukkur. Petitioner being aggrieved from the aforesaid order of the trial Court, submitted an application before the learned Special Judge Anti-Corruption, Sukkur on 22-8-2001, praying for issuance of process against respondent No,l. However, his request was turned down by passing order to the effect that, "since the order has been passed, therefore, the complainant is advised to file a revision application, if so desired". Being aggrieved from the orders, dated 18th and 22nd August, 2001, petitioner preferred a revision before the High Court of Sindh, which has been dismissed by means of impugned judgment with the direction for initiating action of misconduct against the petitioner by Sindh Bar Council Karachi, besides imposing costs of Rs,25,000 upon him to be paid to respondent No,1. It is to be noted that observations were also made for initiating action against Special Judge, Anti-Corruption, Sukkur to explain his conduct and position pertaining to the illegalities committed by him, as pointed out in the impugned judgment. It would be advantageous to reproduce here relevant paragraphs of the impugned judgment, which read as under:- ' "I am persuaded to agree with the submissions made by Mr. Imdad Ali Awan, Advocate for the respondent No,1, and further agree with the observations made by Abdul Majid Tawana, J of the Lahore High Court in the case of Manzoor Ahmed v. Nisar Ahmed, 1994 CLC-2443. I therefore, direct that the office shall send a copy of this judgment to the Sindh Bar Council, Karachi for taking action against the appellant Muhammad Punhal Soomro, Advocate for professional misconduct after giving opportunity of being heard to him.
' I further direct the applicant to pay costs of Rs,25,000 to the respondent No,1, within 2 months. The costs be paid directly to the Respondent No,1, and receipt be produced before the Deputy Registrar of this Court at Sukkur or it may be deposited directly with the Deputy Registrar of this Court at Sukkur. In case of default the cost is to be recovered by coercive process.
'I further direct that the copy of this judgment be sent to the Registrar, at Principal Seat at Karachi, with the direction to obtain necessary orders from his Lordship, the Chief Justice and to issue show-cause notice to Special Judge Anti-Corruption, Sukkur calling upon him to explain his conduct and his position pertaining to the illegalities committed by him as pointed out in this judgment. In case he is not able to satisfactorily explain his conduct and commission of illegalities, a show-cause notice be issued as to why strict disciplinary action should not be taken against him, as he is not fit to hold the post of District and Sessions Judge and by virtue thereof to hold a very responsible post of Special Judge, Anti-Corruption. I would like to conclude with the observations that such conduct as shown by the Special Judge Anti-Corruption, Sukkur could not be countenanced, even on the part of a very junior judicial officer."
3. In the meanwhile, Mr. Bashir Ahmed, Special Judge, Anti-Corruption, Sukkur, also filed Criminal Miscellaneous Application No,135 of 2003 in this Court praying therein to allow him to join the proceedings because adverse remarks have been passed against him behind his back.
Application is allowed. .
4. In response to notice vide order, dated 29-4-2003, Dr. Abdul Wahid Abbasi-respondent No,1 has also appeared and submitted a concise statement mentioning therein that allegations levelled against him by petitioner are illegal, unfounded and baseless, therefore, for such reasons the learned Special Judge, Anti-Corruption decided not to issue process against him and he prayed that the petition be dismissed. Vide order, dated 10-4-2003 notice was issued to State through Advocate-General Sindh, and on the last date of hearing Mr. Suleman Habibullah, Additional A.-G., Sindh appeared and in his presence the case was adjourned for today.
5. We have heard learned counsel for the petitioner, respondent No,1 as well as perused Criminal Miscellaneous No, 135 of 2003 filed by Special Judge Anti-Corruption, Sukkur. We have also gone through the case law, namely, (1) In the matter of expunging remarks from judgment (PLD 1950 Lahore 34), (2) Malik Feroz Khan Noon v. The State (PLD 1958 SC (Pak.) 333 at P.341), (3) Chief Commissioner, Karachi v. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45), and Syed Ali Nawaz Gardezi v.
Lt. Col. Muhammad Yusuf (PLD 1963 SC 51 at p.67):
6. In the, matter of expunging remarks from judgment in PLD 1950 Lahore 34 (supra) it has been held 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 give 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."
' In Malik Feroz Khan Noon's case (supra) this Court observed as under:-- ' "The rule on which remarks against a person who has not been given an opportunity to refute them have been expunged from judgments is based on the principle that when a person is examined as a witness, he has the right to give his own version in defence and the party calling him has an occasion to rehabilitate his credit by putting him questions in re-examination. It is for this reason that the practice of making defamatory remarks against a person who is neither a party nor a witness in the case has been repeatedly condemned by superior Courts."
' In the case of Chief Commissioner Karachi (supra) it has been held that:-- ' "The rule of justice embodied in the maxim: audit alteram partem; "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of judicial proceedings though administrative in form."
' In Syed Ali Nawz Gardezi's case (supra) this Court held as under:- "(67) As we have already said, the Full Bench hearing an appeal no doubt had power to make fair comment on the mode of trial adopted by the Trial Judge or on any irregularity that might have been committed therein, in so far as it was relevant or necessary for the disposal of the appeal or even in the larger interest of justice. In the present case, however, we regret to find that in each of the paragraphs 78, 79, 80 and 81, the basis of the learned Judges' criticism was extremely insubstantial and even hypothetical in some respects. The carelessness displayed by the learned Judges even in stating matters of fact which were apparent on the face of record, is quite inconsistent with the normal standards that might have been expected to be maintained in such a case. It is clear that one of the necessary conditions of validity of such censure of the work of a Judge of a superior. Court, namely, that the criticism should be well informed is entirely absent.
7. With respect to learned Judge in Chambers, while referring to Allah Wadayo's case, he has incorporated the observations on one hand that "it is not requirement of law that the Court on receiving direct complaint must hold enquiry. If a prima-facie case is made out the Court can take cognizance of same after examining the complainant on oath and if no prima-facie case is made out, the Court is competent to dismiss the same. The preliminary enquiry is to ascertain the truth or otherwise of the facts disclosed in the complaint. For dismissal or taking cognizance, preliminary enquiry is not condition precedent." On the other hand learned Judge in Chambers has observed that "After recording of statement of complainant under section 200, Cr.P.C. As required under the law, did not record the reason for postponing the issue of process and holding of preliminary enquiry." The learned Judge in Chambers has correctly and rightly held that holding of preliminary enquiry after examination of complainant was not pre-condition for the issuance of process. It may be pointed out that the learned Judge in Chambers was exercising the criminal revisional jurisdiction and was not exercising the appellate jurisdiction, therefore, the alleged omission with regard to the non-recording of the reasons for dismissing the, complaint in respect of respondent No,1 could not be considered to be case where the learned Judge in Chambers could have interfered with its revisional jurisdiction as omission to record reasons was merely an irregularity and not an illegality. Reference may be made to a case reported in (i) Dharamdas Lilaram v. F.H.
Pilcher, (AIR 1931 Sind 113 D.B) and (ii) Ajoy Krishna Sarkar v. S.G. Bose (AIR 1929 Calcutta 176 D.B.) wherein it was held that High Court would not interfere in exercising its revisional jurisdiction with regard to inadequacy of enquiry 'proceeding under section 202, Cr.P.C. Reference may be made to case reported in Parmanand Brahmachari v. Emperor (AIR 1930 Patna 30) so also when issuance of the process is postponed the same would not be a ground for exercise of revisional jurisdiction by the High Court. It may be observed that provisions of section 202, Cr.P.C. Are enabling provisions of law and not obligatory, non-compliance of which would not amount to illegality, at the most it would be irregularity. The scope of section 202, Cr.P.C. Has been duly enunciated in case reported in AIR 1930 Patna 30 at page 32 Col. 1 and 2 where the learned Judge in Chamber has observed:-- "An inquiry or investigation under section 202 is designed to afford the Magistrate an opportunity of either confirming or removing such hesitation as he may feel in respect of issuing process against the accused. The nature of the inquiry varies with the circumstances of each case, and it is certainly not contemplated that it should always be exhaustive. Frequently all that is required is the elucidation of some minor point or the summary determination of the sufficiency of the available evidence, but least of all is the inquiry, a preliminary trial of the accused at which he is entitled to adduce his evidence before process can issue upon him. The degree of formality of the proceedings and the width and depth of the inquiry is entirely in the discretion of the Magistrate (so long at least as he confines himself to the simple question of issue of process or dismissal of the complaint). The provision is enabling and not obligatory as soon as he has satisfied himself that process should issue its object is fulfilled and it is certainly not incumbent upon him or ordinarily expedient that he should practically enter upon a trial of the case."
8. We may also observe that the purpose of said enquiry under section 202, Cr.P.C. Is to ascertain the truth or falsehood of the complaint considering also the fact that the statements so recorded during the enquiry before issuance of the process could not be termed to be substantive evidence as none of the witness examined is cross-examined by the opposite party. The Magistrate or the Judge holding enquiry has to decide as to whether to issue process after the complainant has recorded his statement under section 200, Cr.P.C. Or to hold an enquiry and if enquiry is ordered to be held, wherein no further material is brought on record but the learned trial Court, after hearing the arguments, is satisfied that prima facie case is made out for issuance of process, he would be legally competent to issue process or decline the issuance of process by dismissing the complaint.
Issuance of process in respect of the persons complained against and refusal to issue process in respect of the some of the persons complained against, would amount to application of mind and the order passed in such circumstances could not be considered to be a mechanical one. It may be observed that the scope of said enquiry before the issuance of process is to find out whether prima facie a case has been made out, the Magistrate or Judge holding an enquiry under section 202, Cr.P.C. Has no jurisdiction to weigh the evidence/material in order to find out if the prosecution has been able to prove its case beyond reasonable doubt and the proceedings of case would not vitiate if the reasons are not recorded unless prejudice is shown to, have been caused by failure to record reasons. In the instant case, learned Judge in Chambers has also declined to issue process against the respondent No,1 as held by the trial Court holding that there was no evidence on record to show that he had committed any offence. If that be so, then how could the learned Special Judge be said to have committed any illegality warranting interference in the revisional Jurisdiction of High Court and also directing initiation of disciplinary action against him for the said omission or commission and for placement of his adverse observations on his record and further ordered for enquiry to be held as to whether he was fit to hold the post. Non-recording of reasons by the trial Court cannot always be said to be mala fide or having been passed with ulterior motive considering that the purpose of postponement under law is prima-facie to find out the truth and falsehood of the complaint.
9. In view of the above discussion, we are of the opinion that remarks against Mr. Bashir Ahmed, Special Judge Anti-Corruption, Sukkur were un-called for and un-warranted particularly in view of the fact that, if at all, learned Single Judge in Chambers was of the opinion to pass any order for initiating action against the above-named Judicial Officer, at least, his comments should have been called for or he should have been heard in person, whereas the adverse remarks recorded by the learned Single Judge in Chambers against Mr. Bashir Ahmed, Special Judge, Anti-Corruption show that he has been condemned unheard, which is against the settled principles of law of this Court that no person shall be condemned unheard. The appellate or revisional Courts should be very careful in passing the remarks in respect of the conduct of the officer specifically when he is not given opportunity of hearing. In the instant case not a single instance has been quoted by the learned Single Judge to convince that the Special Judge Anti-Corruption had taken cognizance of the offence against the accused except Dr. Abdul Wahid Abbasi with ulterior motive. We are of the opinion that the remarks passed against Bashir Ahmed, Special Judge, Anti-Corruption, are uncalled for and untenable in the eye of law for the reason because he was condemned unheard, therefore, the same are expunged.
' On this Mr. GuI Bahar Korai, learned Advocate Supreme Court stated that the petitioner has also instructed him not to press the revision petition, which was filed before the High Court challenging the order of the Special Judge Anti-Corruption, dated 18-8-2001 and 22-8-2001. Respondent Dr. Abdul Wahid Abbasi, who is present in Court, has no objection if the permission is accorded to the petitioner to withdraw the petition.
10. Be that as it may, criminal revision filed by the petitioner before the Sindh High Court is ordered to be withdrawn, but no action will be taken against the petitioner by the Sindh Bar Council.
However, the petitioner is warned to be careful in future during practicing law otherwise strict action will be taken against him if he repeats same act in future.
11. For the foregoing reasons, this petition is converted into appeal, allowed in the above terms, and the impugned judgment of the High Court is set aside. The adverse remarks passed against Mr. Bashir Ahmed, Special Judge Anti-Corruption, Sukkur, are expunged.
' Office is directed to send a copy of this judgment to the Registrar of the High Court of Sindh Karachi.