P L D 1963 (W (PLP)

One Muhammad Haroon was prosecuted by the Sind Police Rangers for contravening the provision of the Pakistan Control of Entry Act, 1952. The allegation was that early morning on the 20th of December 1957 this Muhammad Haroon was seen by the S. P. R. party moving near the border between India and Pakistan and was arrested, and on being searched Indian currency amounting to‑ Rs. 2,400 was found hidden in the folds of his loin cloth. This case was tried by the S. D. M., Naravalley. After Muhammad Haroon had been prosecuted it appears that he filed a complaint against certain members of the S. P. R. alleging that they had dispossessed him of the Indian currency which he and, his party had actually wrested from some smugglers near the border. The Magistrate before whom this private complaint was lodged held a preliminary inquiry and dismissed the complaint. In the course of the preliminary inquiry Muhammad Haroon had cited the present petitioner Mr. Ali Dino Mirza who was then posted at Khokhrapar as Deputy Superintendent of Police, C. I. D. It appears from the judgment of the learned Additional Sessions Judge that it was the case of Muhammad Haroon that he had reported this incident to Mr. Ali Dino Mirza and that an entry had been made in certain registers about this.

3. In the case against Haroon the present petitioner was not examined as a witness: But it appears from the record of the case of the Court of the, S. D. M. that on 29‑12‑58 Mr. Chowdhury, counsel for the accused Haroon, filed an application stating that he had given up the defence witnesses and he merely prayed that the papers of the counter‑case (the complaint case of Haroon) might be produced in defence through the Court clerk. It appears that the record was produced and the evidence of the Court clerk appears in this file. The record of the complaint case is not before me and I have not, therefore, been able to see as to what exactly was the statement which Mr. Ali Dino has made as a witness for Muhammad Haroon in the preliminary inquiry. Haroon was convicted by the S. D. M. and sentenced to one year's rigorous imprisonment and a fine of Rs. 1,

000. He appealed and the case came before the learned Additional Sessions Judge.

4. It appears that in the Court the learned Additional Sessions Judge the record of this statement in the complaint case was before him and he read the evidence of Mr. Ali Dino as also the entries in the various registers which had been produced in that complaint case in support of Muhammad Haroon. The learned Sessions Judge upheld the conviction of Haroon but while reducing his sentence he observed that Muhammad Haroon had acted as a tool in the hand of Mr. Ali Dino and the Land Custom Inspector Mr. Riaz who were then posted at Khokhrapar border for whom the appellant happened to be smuggling Indian currency from Bharat. He relied upon the statement of the prosecution witness Lance Naik Dost Muhammad who bad first apprehended Haroon near the border and to whom Haroon had made this statement involving Ali Dino and Riaz. The learned Additional Sessions Judge made several other observations in the same connection. Amongst these he said that the entry made by Head Constable Fariduddin in the station diary about the complaint made to Mr. Ali Dino on 20th December 1957, was manipulated and so was the other entry which was made 15 minutes thereafter ; that all this was done at the instance of the Deputy Superintendent, Police, C. I. D. Mr. Ali Dino and Riaz, the Customs Inspector at Khokhrapar. Muhammad Haroon came up to this Court in revision being Criminal Revision Application No. 288/59. The case was heard by my brother S. A. Mahmud, J. and he gave the benefit of doubt to Haroon because he was of the opinion that the possi?bility of the Indian currency having been made over to Haroon by somebody else could not be excluded. This is what the learned Judge observed :‑ "It may well be that an Indian or some person who had crossed from India into Pakistan or some other person had handed over to the petitioner (Haroon)." Mr. Ali Dino Mirza has now filed this petition for the expunge?ment of the remarks made against him by the learned Additional Sessions Judge, Tharparkar. This petition was made on 7th August 1962. Mr. Akhund, the learned Advocate for the petitioner, explained the delay in making the presentation on the ground that his client was not aware of these adverse remarks and that he came to know about this only when the departmental proceedings were started against him on a charge‑sheet regarding alleged smuggling of gold and Indian currency. This charge?sheet is dated 25th May 1962.

5. The short point raised by Mr. Akhund is that in so far as the petitioner was neither a witness nor a party to the criminal case which was before the learned Additional Sessions Judge, the latter was not justified in making the adverse remarks against his client. He argues, and rightly so, that even if the statement made by Mr. Ali Dino in the complaint case of Haroon was before the learned Additional Sessions Judge that was not enough. For one thing, this evidence would be inadmissible in another case unless it was taken on record upon the ground that the man who made the statement was either dead or who could not be found or his presence could not be obtained without undue delay. Nothing of this kind had happened in the present case. The learned S. D. M. who tried the case merely sent for the record through the clerk of the Court and the whole of the record was kept with the file of the case which the learned S. D. M. was trying. Mr. Akhund has naturally relied upon the well‑known judgment of the Supreme Court in the case of Malik Feroze Khan Noon v. The State (P L D 1958 S C (Pak.) 333). It was observed in that case that in all cases which had come before the Courts, where an aggrieved person asked for expunction of objection?able remarks made against him in a judgment, one point had consistently been emphasized, namely, that a Judge ought not to make any disparaging remarks against a person who was neither a party nor a witness in the case. In another part of the judgment this is what the learned Chief Justice said :‑ "The rule on which remarks against a person who has not been given an opportunity to refute them have 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‑examina?tion. 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 Court." These observations apply in the present case as well.

6. Mr. Zahoor, the learned Advocate appearing for the State, took the stand that this Court should not exercise its discretionary power under section 561‑A when the request for the expungement of remarks was made after so much delay. The delay has been explained by the learned counsel for the petitioner. It may well be that the petitioner knew fully well about the judgment of the learned Additional Sessions Judge but I cannot exclude the possibility of his not being aware of it in the absence of any evidence to the contrary. Mr. Zahoor further contended that these observations are integral part of the judgment of the learned Additional Sessions Judge because he gave them as grounds for giving a lighter punishment to Haroon, whom he found to be a tool for more powerful person such as Mr. Ali Dino and Riaz. That is so, but the fact still remains that the petitioner was not before the Court and it appears to be reason?able that the petitioner should have an opportunity of being heard by the Inquiry Officer who is conducting the departmental case against him without the finding of the learned Additional Sessions Judge still subsisting against him.

7. I can quite see that the temptation to make these remarks in the circumstances of the case must have been great to the learned Additional Sessions Judge but it is particularly in such ,q situation that the salutary principle has been laid down, namely, that the person against whom the remarks are intended to be made should have been before the Court, and where this is not so the remarks should normally be expunged.

8. For the reasons given above I order that the adverse remarks appearing in the judgment of the learned Additional Sessions Judge in Criminal Appeal No. 8/59 be expunged. I would, however, like to make it quite clear that in doing so I should not be understood as having disagreed with the learned Additional Sessions Judge. I have ordered the expungement on the ground that the petitioner was neither a witness nor a party in the case in which the appeal was being heard. A copy of this order shall be sent to the Inquiry Officer who is holding the departmental inquiry against the present petitioner. K. B. A.?????????? Petition accepted.