1993 PLP 633 (SCMR)

NASIM HASAN SHAH, J.‑‑‑This appeal of Mr. Arz Muhammad Umrani, Assistant Political Agent, Dera Bugti, by leave of this Court is directed. against the judgment of the High Court of Balochistan seeking expungement of certain remarks passed against him while disposing of C. P. No.201 of 1989 on 13‑11‑1989. The facts necessary for purposes of this appeal are that one Ghabroo son of Lakha Khan on 16th January, 1989 lodged a complaint before Assistant Political Agent, Dera Bugti alleging that one Atta Muhammad son of Karam had enticed away his wife Mst. Khair Bibi and was committing Zina with her. The complaint was referred to Naib‑Tehsddar Singsalah for inquiry who submitted challan under sections 497 and 498, P.P.C. on 22‑7‑1989. Learned Assistant Political Agent, Dera Bugti, appellant herein, exercising powers under sections 4 and 5 of Ordinance II of 1968 constituted a Tribunal on 23rd July, 1988 and referred the matter to it for determining the question of guilt or innocence of the appellant pertaining to offences covered by section 497/498, P.P.C. Evidence was recorded by the Tribunal; thereafter report was submitted by the Members on 2nd August, 1989 unanimously finding Atta Muhammad, aforementioned, guilty of the aforesaid offences. The Assistant Political Agent, Dera Bugti (appellant herein) accepted recommendations of the Tribunal and vide judgment dated 10th August 1989 holding him guilty for the offences aforesaid sentenced him to undergo rigorous imprisonment for 5 years and fine of Rs.15,000 under section 497, P.P.C. and rigorous imprisonment for 3 years and fine of Rs.10,000 regarding offence under section 498, P.P.C. Feeling aggrieved by the. said conviction and sentence, Atta Muhammad filed a Constitutional Petition (C.P. No.201 of 1989) PLD 1990 Quetta 30 in the High Court of Balochistan, wherein he contended that section 497/498, P.P.C. stood repealed by section 19 of "The Offence of Zina (Enforcement of Hudood) Ordinance, 1979; therefore, all the proceedings drawn up in the matter by Assistant Political Agent or Tribunal were completely without jurisdiction and conducted without lawful authority and were, therefore, of no legal effect. The High Court found force in this contention observing that after the promulgation of `The Offence of Zina (Enforcement of Hudood) Ordinance, 1979' provisions of sections 497/498, P.P.C. have ceased to be on the Statute Book with effect from 10th February, 1979. The provisions of section 19(3)(a) of the aforesaid Ordinance were reproduced Where under section 497/498, P.P.C. stood repealed. This section is to the following effect: "

19. Application of certain provisions of Pakistan Penal Code and Amendment.‑‑‑(1) Unless otherwise expressly provided in this Ordinance the provisions of sections 34 to 38 of Chapter II, sections 63 to 72 of Chapter III and Chapters V and V‑A of the Pakistan Penal Code shall apply mutatis mutandis in respect of offences under this Ordinance. (2) . (3) . (a) Section 366, section 372, sections 373 and 375 and section 376 of Chapter XVI and section 493, section 497 and section 498 of Chapter XX, shall stand repealed;" It was observed that, on repeal of offences, covered by section 497/498, P.P.C. neither the proceedings drawn and recorded by the Assistant Political Agent, Dera Bugti nor the Tribunal under section 497/498, P.P.C. had any jurisdiction to try or convict Atta Muhammad. Hence the said proceedings were totally coram non judice and as such nullity in the eyes of law. Accordingly, the impugned judgment passed by the appellant herein was held to be illegal, void and without lawful authority. The conviction of Atta Muhammad and the sentence awarded to him were set aside and he was ordered to be set at liberty. The High Court furthermore, in the course of its judgment, took notice of the conduct of the appellant in disposing of the matter and commented upon it in strong terms not only made adverse remarks but also ordered them to be placed on his confidential record. The reasons given for taking this action were stated in some detail by the Court in its judgment. It was observed that in respect of the same set of allegations a challan under section 10/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, has already been put up before learned Sessions Judge, Nasirabad at Dera Allah Yar to the knowledge of Assistant Political Agent, Dera Bugti as admitted by him in paras. 2 and 3 of comments filed in this Court". And it was further observed‑‑ "Since case was already pending before the Court of Session, learned Assistant Political Agent obviously had no jurisdiction to adjudicate upon in the matter. Attempt for usurpation of jurisdiction therefore smells of mala fide." The learned Judge also went on to observe‑‑ "It is painful for us to note, that learned Assistant Political Agent while performing judicial functions, neither knew about existence of relevant provisions of Penal Code nor verified this aspect while initiating trial or at least awarding conviction to petitioner. Surprisingly, record maintained by him is also stinking. Complaint was lodged on 16th June, 1989 whereas in green ink learned Assistant Political Agent, Dera Bugti has referred the matter to Naib‑Tehsildar on 15‑6‑1989, a day earlier than the complaint itself. Challan submitted by Naib Tehsildar, Sangsalah on 22nd July, 1989 mentions on the top, that complaint investigated by him was of 16th July, 1989. However, in Column 7 of the challan date of the complaint is mentioned as 16th June, 1989. Such variations in judicial matters clearly cast serious doubts. Learned Presiding Officer is not merely ignorant about law but is certainty performing judicial function in a dubious manner. It is, therefore, dangerous to assign him judicial or quasi‑judicial functions, which may lead to serious consequences." The above observations have, as already stated, been ordered to be placed on the confidential record of the appellant. By this appeal, the appellant seeks their expungment. Leave was granted to consider whether the principles underlying the provisions of section 77, P.P.C., section 197, Cr.P.C. and other laws affording protection to judicial officers when performing their functions as such were not attracted to the present case and also whether the appellant was not entitled to an opportunity of hearing before awarding the adverse remarks since they may result in depriving him of the assignment of judicial and quasi‑judicial functions for ever. We have heard Mr. S.A. M. Quadri in support of the appeal as also Raja Muhammad Afsar, Advocate‑General Balochistan, who simply stated that the Government of Balochistan was neither supporting the appellant nor defending the judgment of the High Court in this case. In other words, it was taking a neutral position in the matter. Section 77 of the P.P.C. provides‑‑ "Act of Judge when acting_judicial1y.‑‑‑Nothing is an offence which is done by a Judge when acting judicially in the exercising of any power which is, or which in good faith he believes to be, given to him by law." Section 197, Cr.P.C. lays down‑‑ "Prosecution of Judges and public servants: ‑‑When any person who is a Judge within the meaning of section 19 of the Pakistan Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Federal Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction‑‑‑ (a) in the case of a person employed in connection with the affairs of theFederation, of the President; and (b) in the case a person employed in connection with the affairs of a Province, of the Governor of that Province." According to these provisions, the judicial officers enjoy immunity for B Performance of their judicial acts. Undoubtedly, the order to place the highly adverse observations of the Court on the confidential record of the appellant, whereby he has been found unfit for exercise of judicial and quasi‑judicial functions, can result in considerable harm to him in respect of his future service career for an act done by him while performing his duties as a Judge and the principle underlying section 77, P.P.C. and section 197, Cr.P.C. is that no liability is incurred by an officer for doing an act in his judicial capacity. But this principle is not attracted in the circumstances of the present case. Here what is being impugned is also a judicial act, performed by the High Court. The position is that an order passed by the appellant in exercise of judicial/quasi‑judicial functions was being questioned before the High Court in exercise of the powers conferred on it under Article 199 of the Constitution. While examining the said order, the High Court found that the order impugned before it was passed by the appellant relying on provisions of law, which were no longer on the statute book but stood repealed. Moreover, the same matter was pending before another forum, indeed the competent forum, a fact which was in the knowledge of the appellant, raising an apprehension in the minds of the Court that the appellant was acting mala fide. Taking all these circumstances into account, the learned Judges of the High Court remarked that the appellant was not a fit person who could be conferred powers to exercise judicial or quasi‑judicial functions. Since these observations were related to and arose out of the order of the appellant that was being questioned before them, no exception can be taken to the observations made, not being unrelated to the examination of the order impugned before them. The question of affording an hearing to the appellant before making the complained of observations did not arise because the order of the appellant was competently impugned before the High Court and its legality and validity was being judicially examined under Article 199 of the Constitution. In such a situation, it is not necessary to hear the author of the order. Needless to say that the High Court under Article 203 of the Constitution being responsible for the entire administration of justice in the Province and being charged with the responsibility of supervising all Courts subordinate to it was competent to take all appropriate measures for preventing flagrant maladministration of justice. The High Court taking note of C the manner in which this case was dealt with by the appellant and coming to the conclusion that the inevitable result of vesting judicial powers to an officer, as ignorant of law as the appellant was, would result in maladministration of justice could clearly make the complained of remarks as these were not unrelated to the findings recorded by the Court while ruling on the legality and validity of the impugned order, brought before it for correction. No interference, with the judgment of the High Court assailed before `,us, is therefore, called for. This appeal, accordingly, fails and is dismissed. M.BA./A‑984/S Appeal dismissed.