1994 P Cr (PLP)

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. Dated 19‑11‑1991 (Sd.) Khalid Mian, Additional Sessions Judge, Lahore. The petitioner submitted that from the record of Criminal Miscellaneous 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 file. 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 Criminal Miscellaneous No.291/T of 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 ranged 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 Additional Sessions Judge has shown some extra judicial 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, Additional 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 file, 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 hand, 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 file) wherein the learned trial Judge had himself recorded the petitioner's presence as one of 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 file "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 rile 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 he 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, Additional 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 hand, 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 A I R 1944 Sindh 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 cross 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; hence the learned Judge should not 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 Miscellaneous No.291/T of 1991, 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‑I1‑1991." The petitioner also cited The Crown v. 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 Lalit Kumar v. S.S. Bosa A I R 1957 All. 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 expunging remarks from judgment P L D 1950 Lah.

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:‑‑ "Disaparaging 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 spectre 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 hand 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 fairplay, that when a Judge decides to condemn a man whether a party or a 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. 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 to 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; he 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 for the just decision of the case; hence while accepting this petition the impugned offending remarks are hereby expunged. N.H.Q./M‑1438/L Remarks expunged.