1998 PLP 485 (SCMR)

RAJA AFRASIAB KHAN, J

This petition has been instituted by Muhammad Mukhtar Sheikh, Director Public Instructions (Schools), retired, the petitioner herein against Aziz Ahmad Hashmi and others to call in question the validity of judgment, dated 28th of May, 1995 having been rendered by Punjab Service Tribunal. At the very outset, learned counsel states that the petitioner has retired from service. He has come only to challenge the adverse remarks having been passed against him in the impugned judgment. He has drawn the attention of the Court to pages 31,35 and 36 of the paper book wherein strong language had been used against him. The Tribunal stated that the petitioner had been proceeding in the case with mala fide. It continued to observe that the objections of the petitioner were fishy and obstreperous. It was also said that a bogey of frivolous objections was raised by the petitioner. Learned counsel for respondents has stated that he does not oppose if the adverse remarks against the petitioner are deleted from the judgment. Learned counsel for the respondent/Department has, nevertheless, opposed the petition and insists that the remarks should remain in the judgment. After hearing the learned counsel for the parties and perusing the record, we are of the view that no opportunity was given to the petitioner before passing the aforesaid remarks. The case of learned counsel is that during the hearing, no such remarks were given nor it appeared that the learned Judge was inclined to pass the impugned remarks in the judgment. This argument of the learned counsel was not contested by the learned counsel for contesting respondents. We have been persuaded to hold that the petitioner was condemned unheard. The word 'fishy' denotes questionable character. Similarly, obstreperous' would mean noisy, boisterous or unruly, esp. in resisting control. The expression 'bogy or bogey' has been given the meaning of evil spirit, goblin, frightening or dreaded person or thing; bugbear. Dictionary Macmillan by Willian D. Halsey may be referred. These remarks were unwarranted in the given circumstances. From the close reading of the record, it is evident that the impugned observation were not germane to the controversy and as such, were not at all called for to meet the requirement of law. They are also speculative on the face of them. Reference may usefully be made to Sir Edward Snelson v. Judges of the High Court of West Pakistan (PLD 1961 SC 235), Sui Gas Transmission Co. Ltd. v. Ghulam Ali (PLD 1962 SC 364), J.S. Gideon v. The State (PLD 1963 SC 1), Abdul Hayee Khan v. The State (1969 SCMR 412), Muhammad Hadi v. Secretary Government of Balochistan (1990 SCMR 799) and Saeed Ahmad Khan v. The State (1992 SCMR 1369). In case of Saeed Ahmad Khan (supra), the following remarks were passed by the High Court:-- "This fact alone is sufficient to discard his investigation. The learned counsel for the respondents in Criminal Miscellaneous No.3483/B of 1990 submitted that even the so-called packets/containers in which the alleged drug was placed contain only earth and not drug. If this is true then it means that the Investigating Officer has taken all precaution that no damage is done to the accused. The fact that informant named Iftikhar was indulging in illegal activities and premises belong to him were sufficient in itself to make him the principal accused but the D.S.P. who investigated the matter, for reasons best known to him, did not even interrogate him. Therefore, D.S.P. is liable to be proceeded for misconduct, inefficiency and may reasonably be considered corrupt. The D.I.G. Lahore is directed to get disciplinary proceedings initiated against D.S.P. The proceedings to be finalised within two months and report as to the action taken against the said D.S.P. is to be submitted to the Registrar of this Court immediately after the conclusion of departmental proceedings." This Court expunged the offensive remarks by holding:-- "We have heard Mr. Fazal Elahi Siddiqui, Advocate, for the appellant and have perused the record of the case. The learned Judge who was seized of the bail matter had the jurisdiction to call the appellant and question him about the merits of the case. However, we feel that the observation, therefore, D.S.P. is liable to be proceeded to misconduct, inefficiency and may reasonably be considered corrupt' directing the D.I.G. Lahore to initiate disciplinary proceedings against him to be finalised within two months with a compliance report, should have been avoided and instead the department could be advised for proper legal action against him. The instant appeal is disposed of with diluting the detrimental character of the above observations of the High Court." If the learned Tribunal wanted to say something about the personal character of the petitioner, it was required to have given him an opportunity to explain his position in that behalf. No such remarks could be made against a person without hearing him. This being the position, we expunge the objectionable remarks as mentioned above from the judgment of the Tribunal. It shall be deemed that the remarks in question were never passed by the Tribunal against the petitioner. This petition is converted into appeal and allowed to the above limited extent with no order as to costs. A.A./M-3229/S Appeal accepted.