1969 PLP 412 (SCMR)

Date of hearing : 17th October 1958. SHAHABUDDIN, J.‑This is an appeal by special leave from the judgment of the High Court of West Pakistan, Lahore, by which the application of the appellant Hayee for expunction of certain remarks made against him on a reference under section 438, Crimi nal Procedure Code, regarding the conviction and fine imposed on one Faqir Muhammad in a cases tried summarily under section 260, Criminal Procedure Code, by the appellant in his capacity as First Class Magistrate, Lyallpur, was dismissed. Facts giving rise to this appeal are as follows. On the 15th September 1954 the appellant tried 32 cases summarily, nine of which were for offences under the Police Act, while the rest were for offences under the Municipal Act. In all of those cases the plea was one of guilty and the fines imposed ranged from Rs. 2 to Rs.

40. One Faqir Muhammad was an accused in one of those cases, the accusation against him being that he committed an off ence punishable under section 195/219 of the Municipal Act by constructing a pardah wall to his house. The plea recorded was one of guilty and the punishment imposed a fine of Rs.

40. About five weeks after the conviction, on the 22nd October 1954, Faqir Muhammad presented a petition for revision to the Sessions Judge, Lyallpur, alleging therein that he did not plead guilty but submitted that the repairs to the house in respect of which he was charged by the Municipality were in fact effected by the Rehabi litation Department under their own supervision, that this sub mission gave offence to the appellant who threatened him with a heavy fine, that he, Faqir Muhammad, nevertheless requested for time to summon the Sub‑Divisional Officer of the Rehabilitation Department, but the appellant did not accede to this request and announced the order that he was fined Rs.

40. A certified copy of a certificate by the S. D. O. Rehabilitation stating that the repairs were carried out by his Department was filed with the revision petition. On the 23rd October 1954 he filed an affidavit wherein he added that the appellant in spite of his denial of the offence recorded a plea of guilty and ordered him to pay a fine of Rs. 10 that on his representation that he was not guilty and that he would like to produce defence witnesses, the fine was raised to Rs. 20 and then to Rs. 40 and that the appellant also said that if he did not remain silent he would be fined from Rs. 100 to Rs.

150. The Sessions Judge forwarded the case to the High Court with the recommendation that the conviction and sentence be set aside, the main ground for the recommendation being that having regard to the fact that the repairs were effected by the Rehabilitation Department it was not possible to believe that the petitioner would have pleaded guilty. The 1 earned Judge of the High Court who dealt with the reference agreed with this view and observed that the version of the petitioner that the Magistrate went on increasing the fine as the petitioner repeated his request for time to examine witnesses found some corrobo ration in the fact that in the two cases decided immediately before Faqir Mohd's which also related to a similar offence the fine imposed was only Rs. 20 and that in the four cases that followed Faqir Muhammad's, the fine ranged from Rs. 5 to

20. Finally he came to the following conclusion: "In view of the foregoing considerations, I am convinced that in this case the Magistrate wrongly recorded the plea of guilty while in fact the petitioner was insisting upon his innocence.". On this finding the learned Judge set aside the conviction and sentence, acquitted Faqir Muhammad and then went on to observe as follows: "In conclusion I cannot help noting that this Magistrate's notions of justice and morality are a positive source of danger to the public and administration of justice. A person who wears his conscience so lightly is utterly unfit to be a Judge. Nor can I persuade myself to believe that this is the only instance in which the Magistrate must have wandered away from the path of honesty and justice. This is probably the only instance in which this Court had the occasion to see him in his true colours." It may be stated at this stage that neither the Sessions Judge before making the reference nor the learned Judge of the High Court before accepting the reference and making these remarks asked the appellant for an explanation or afforded him an opportunity to show cause against Faqir Muhammad's petition being acted upon. The appellant thereupon filed an application for the expunc tion of the observations quoted above. This application was dismissed on the grounds that the learned Judge had no power to alter the finding viz. that the appellant had wrongly recorded the plea of Faqir Muhammad and that the second observation though it was not necessary for the disposal of the case and might have remained unwritten did no more damage than the finding referred to above. At the time special leave was granted in this case, it had no been held by this Court that the High Court has no jurisdiction to expunge remarks made in any of the judgments of its Judges. This decision was taken only in July last in Malik Feroz Khan Noon v. The State (P L D 1958 S C (Pak.) 333). In view of this decision the matter before us has to be considered more as an application for expunction of the remarks stated above than an appeal from the order of the High Court declining to expunge the remarks mentioned above as that] order was without jurisdiction. The main contention of Mr. Anwar who appeared for the appellant was that the learned Judge of the High Court was wrong in assuming that Faqir Muhammad could not possibly have pleaded guilty, because, in petty cases which come up for summary trial even persons, who are not actually guility, plead guilty in order to avoid the inconvenience and expenses of a trial which ensues on a plea of not guilty. It was also urged that in trying to find corroboration for the allegation of Faqir Muhammad that the appellant went on increas ing the fine as the protest was repeated, the learned Judge overlooked certain other entries of similar punishment in the extract from the register showing the number and nature of cases disposed of on the 15th September 1954. Lastly, our attention was invited to the fact that in dealing with the petition for expung ing remarks the learned Judge subjected the appellant to a searching cross‑examination while the affidavit of Faqir Muhammad and of another filed by Faqir Muhammad were not tested by questioning the deponents. As regards the second observation the learned counsel's contention was that there was no material or justification for such a general sweeping condemnation of the appellant. The learned Advocate‑General while agreeing with the latter contention of Mr. Anwar argued that the first observa tion was really a finding which right or wring remains on the record and cannot be interfered with in a proceeding for expunc tion of remarks. As regards the second observation he conceded that he could not justify it. The position taken by the learned Advocate‑General regarding the first observation is no doubt strictly speaking correct, but it cannot be denied that there is considerable force in the contention of Mr. Anwar on the first point and that the manner in which the reference was dealt with by the High Court was far from satisfactory. In the first place, in dealing with the reference no opportunity was given to the appellant to state his version of the case. This was a serious omission as it contravened the fundamental principle of justice that no one should be condemned without his being given an opportunity to defend himself. The learned Judge observe) in his order on the application for expunction of remarks that this omission weighed heavily on his judicial conscience and that therefore an opportunity was given to the appellant to defend himself, but it is remarkable that while the appellant was subjected to a searching cross‑examination by the learned Judge, the affidavits filed by Faqir Muhammad were assumed to be true and he was not cross‑examined though the appellant had produced six affidavits besides his own. Then again as regards the quantum of fine imposed in similar cases on that day the learned Judge overlooked the fact that the entries subseq uent to that relating to Faqir Muhammad show that in two other cases which related to offences under the Municipal Act the appel lant imposed a fine of Rs.

40. As for the conclusion of the learned Judge that it was impossible to believe that Faqir Muhammad pleaded guilty when he had a good defence, it was overlooked that in many of the petty cases not involving moral turpitude accused persons prefer to plead guilty to producing defence and to undergoing the inconvenience of a complete trial. However, as pointed out by the learned Advocate‑General this is not a proceeding for setting aside the finding and therefore the prayer for expunction of this observation cannot be granted. As regards the second observation it has to be expunged. The finding discussed above was only that the appellant wrongly recorded the plea of guilty, while in fact Faqir Muhammad was insisting upon his innocence This at the worst imputes only negligence to the appellant and not malice or dishonesty. That being so, we are unable to agree with the learned Judge that this observation flows from the finding. Nor can it be said that the observation does no more damage than the finding, for, it not only condemns the appellant both as a man and a Magis trate, but also brands him as a habitual offender in recording pleas in summary trials. The learned Judge could take judicial notice only of the instance before him. There was nothing in the petition, or the petitioner's affidavit, or in the reference of the Sessions Judge to indicate that in several other cases the appellant had behaved as alleged in the present case. The remark that this was not the "only instance in which the Magistrate wandered away from the path of honesty and justice" was based purely on speculation. In fact the entire observation was wholly unjustified. The prayer in the application for expunction of remarks with regard to the second of the two observations quoted above is, therefore, granted and the said observation. will be expunged from the order of the High Court on the reference in question. The appeal is allowed to this extent. Appeal partly accepted.