P L D 1980 Supreme Court 14 (PLP)

G. SAFDAR SHAH, J.--This order will govern both these petitions, as they arise out of the same order, dated 9-7-1979, of a learned Single Judge of the Lahore High Court by which the respondents herein were released on bail in a case registered against them under section 452/506/354 of the Pakistan Penal Code. On 22-6-1976, at about 8 p. m., Mst. Asghari Khanum (petitioner in Criminal Petition for Special Leave to Appeal No. 388/1979) lodged an F. I. R. .in the Gulberg Police Station, Lahore alleging therein that the respondents, in order to condole the death of the minor son of Ghulam Rasul Azhar (petitioner in Criminal Petition for Special Leave to Appeal No. 468/1979) came to the house of the latter; that in order to entertain them Ghulam Rasul Azhar asked her to prepare cold drinks; and when she wens inside the house she heard respondent Bokhari and his wife, respondent Bismillah abusing her but she did not come out of the house and instead took shelter behind 4 door; that in the meanwhile, the said two respondents barged into the hours;, when respondent Bokhari - caught hold of her hair and started dragging her; that owing to the filthy language used against her hi, the said two respondents petitioner Ghulam Rasul Azhar and quite a few other persons from the locality gathered -at the gate of the house and saw the occurrence; and that when Ghulam Rasul Azhar and some of the other persons came forward to rescue her, the respondents left the house with the threat that they would return on the next day with gundas; break her bones and throw her out of the house. . In the supplement any statement of Mst. Asghari Khanum which was recorded by A. S.

1. P. Muhammad Shafi on the same date, she enlarged upon the version of the F. I. R. to the effect that when Major Bokhari and his wife Msr. Bismillah dragged her out of the house, respondent Mst. Ismat also joined them and the three of them gave her beating. However, in the F. l. R.. which was got recorded by her soon after the occurrence she was in a very upset state of mind, and so had forgotten to mention this fact as well as the further fact that the said three respondents had given her threats that she would be murdered. Now the basic reason which seems to have led to the said unpleasant episode was that there existed strained matrimonial relations between petitioner Ghulam Rasul Azhar on the one hand and his wife respondent Mst. Ismat on the other owing to which disputes the former had revoked on 11-4-1977 the gift deed dated 31-12-1973, by which be had gifted to the latter his Bungalow No 51-B, Gulberg 11, Lahore, in lieu of her dower. It is common ground between the parties that Mst. Ismat has since been divorced by Ghulam kasul Azhar. On 2-8-1979, however, Mst. lsmat is said to have sold the said bungalow, and fifteen days after the said transaction, Ghulam Rasul Azhar, who. was then posted at Lahore, as Senior Special Judge Anti-Corruption, Punjab, filed a suit against Mst. Ismat and the vendee for declaration to the effect that he was the sole owner of the said bungalow and Mst. Ismat had no right or interest therein. By way of consequential relief he also prayed for permanent injunction, and we are informed that the said suit is pending before the trial Court at Lahore. It seems that owing to these unpleasant developments between petitioner Ghulam Rasul Azhar and his wife Mst. Ismat their respective relatives were willy-nilly drawn into the whole affair with the result that attitudes hardened and each side started sympathising with one of the two spouses. Perhaps it was in this background that when respondent Bokhari, who is related to Mst. Ismat through his wife, respondent Bismillah, called on petitioner Ghulam Rasul Azhar on 22-6-1979 with a view to condoling with him the death of his minor son that somehow the already surcharged atmosphere got aggravated and gave rise to the alleged unfortunate incident. The record would show that in view of the registration of the case against them, the respondents filed 3n application in the Court of the Additional Sessions Judge, Lahore, for bail before arrest, who vide his order dated 24-6-1979, granted them interim bail with notice to the State. On 8-7-1979, however, when the application of the respondents came up for haring, the learned Judge dismissed the same for the reasons that "Under the law a bail before arrest can be granted to an accused if it appears that he is perhaps probably being falsely involved in the. case and that he shall suffer humiliation in case of his arrest and not otherwise. These conditions in my opinion are not satisfied in the present case in view of its circumstances. The petitioners are named in the F.

1. R. and a specific role in the commission of offence is attributed to them. As given therein Major Bokhari gave filthy abuses to the complainant, caught hold of her by her hair, dragged her and held out threats to her. His co-petitioners joined him in .the commission of the alleged offence and gave beating to the complainant. Ch. Ghulam Rasool Azhar and Dr. Bashir P. Ws. have supported the prosecution in their statements before the Police during the investigation. There is nothing on record to short/ that the petitioners are being falsely involved in the case. Both the parties are educated and related to each other. Ch. Ghulam Rasool P. W. is a Judical Officer. It is, therefore, not believable for the present that he would falsely involve his wife and his relatives in a criminal case without any reason. The abovenoted circumstances, therefore, tend to connect the petitioners with the alleged offence. The petitioners were granted interim bail before arrest vide order dated 24-6-79 and were directed to join the investigation of the case. The A. S. 1. has stated that they did not Join the investigation in compliance with this direction. Thus the petitioners have misused the concession already granted to them". Feeling aggrieved of the said order, the respondents filed in the Lahore High Court an application for bail, and a learned Single Judge granted the same holding "The house is in the nape of petitioner No. 1, which was transferred to her by her husband Ch. Ghulam Rasul Azhar as far back as 1973 by way of gift and it has been argued that the relations between the two spouses have become strained, and that Ch. Ghulam Rasul Azhar has sent a notice of divorce to petitioner No.

1. It is argued that Ch. Ghulam Rasul Azhar, husband of petitioner No. 1 has got this bogus case registered through his sister-in-law for pressurising the petitioner No. 1 to transfer the house back to him. It is needless to mention that one cannot be held guilty of the offence of trespass for an alleged entry in one's own house and more particularly when the complainant herself was a visitor in the house according to her own F. I. R., yet a case has been registered under section 452, P. P. C. against the petitioner No. 1, the owner, and her relations. At its worst, it appears to be a case of family row between the two sisters-in-law. The Investigating Officer informs that there is no injury. on the person of the complainant . A bare reading of the F. I. R. makes it clear that the only allegation was one of abusing and catching hold of the complainant by her tail. It appears that the investigation has not been fair, presumably under the influence of Ch. Ghulam Rasul Azhar. Had it been so, case would not .have been registered under section 452, P. P. C. at .least. Argument of the learned counsel appearing on behalf of the complainant is, therefore, not even) worth taking note of. The argument of the learned counsel for the petitioners that a bogus case has been trumped up to pressurize the petitioner No: 1 for the surrender of house, prima facie appears to be not without force". It is in this background that the petitioners have come up to this Court praying for leave to appeal, and when the petitions came up for hearing in Court on 2-12-1979, a notice was directed to issue to the Advocate-General, Punjab, as well as the respondents to appear in Court on 4-12-1979. On 4-12-1979, the learned counsel for all the parties appeared but the case was adjourned to 5-12-1979, on the request of the learned counsel for the respondents as they expressed the desire to file affidavits with a view to bringing forth all the necessary facts having a bearing on the disposal of these petitions. The learned counsel. for the parties are present as usual, and on behalf of the respondents two affidavits have been filed by their learned A. O. R., namely, Rao Muhammad Yusuf in which the position taken up is: (1) that the petition filed by Ghulam Rasul Azhar is barred by 77 days; (2) that Ghulam Rasul Azhar himself had taken Mst. Asghari Khanum the wife of his. real brother to the Police Station for lodging the F. I. R.; (3) that although in the F. I. R. lodged by Mst. Asghari Khanum the name of respondent Mst. Ismat was conspicuous by its absence yet Ghulam Rasul Azhar abridged that gap in his own statement before the Police as well as in the supplementary statement of Mst. Asghari,Khanum with the evident intention to pressurise Mst. Ismat to disclaim her interest in the bungalow which had been gifted to her through a registered deed; (4) that the observations made by the learned Judge of the High Court about the conduct of Ghulam Rasul Azhar were not extraneous to the proper consideration of the application; and (2) that, in any event the said observations were prefixed by the learned Judge with the expression ",prima facie" and so no valid exception could be taken to the same. We have heard the learned counsel for the parties as well as Muft: Nazar Muhammad, who appeared for the Advocate-General, Punjab. The learned counsel for the petitioners has taken serious exception to the said observations made in the impugned order passed by the High Court, although he said that he has no grievance against the grant of bail to the respondents He argued that by making the said observations, the learned Judge has not only condemned Ghulam Rasul Azhar unheard but has prejudged the case instituted on the complaint of Mst. Asghari Khanum as well as the civil suit filed by Ghulam Rasul Azhar against Mst. Ismat which is pending in a civil Court for adjudication. The learned counsel for the respondents, on the other hand, pressed in service the same grounds, which were alleged in the two affidavits, filed by Rao Muhammad Yusuf. They further argued that in view of Khalid Javed Gillan v. The State (PLD 1978 SC 256) the said observations in the impugned order were not only essential, as the learned Judge had the jurisdiction to tentatively assess the evidence before him,--but the same formed an inseparable part of the order which could not be expunged without' doing violence to the substance of the order or impairing its efficaciousness. Now so far as Ghulam Rasul Azhar is concerned, the grievance made by him against the impugned order of the High Court is not without substance. It is conceded by the learned counsel for the respondents, as well as the learned counsel appearing for the State, that Ghulam Rasul Azhar is not an accused in this or in any other case ; that after the unfortunate occurrence, which took place in the house in which he was residing, his 161, Cr. P. C. statement was recorded by the Police, in which he supported the F. I. R. lodged by Mst. Asghari Khanum ; that four witnesses from the locality, namely, Muhammad Ishfaq, Doctor Bashir Ahmad, Chief Medical Officer, Social Security Services, Punjab, Noveen Akhtar and Ahmad Hassan were examined by the Investigating Officer and they too have supported the case of the prosecution ; that the name of Ghulam Rasul Azhar does not appear in the record of the Investigating Agency to show that he had in any way influenced the course of the investigation or the learned Additional Sessions Judge, who rejected the bail application of the respondents ; and that Ghulam Rasul Azhar has, in respect of the house which he had gifted to his wife Mst. Ismat in lieu of her dower, filed a suit against Mst. Ismat for declaration to the effect that subsequently he had cancelled the said transaction through a registered deed and so he was the sole owner of the said house. The learned counsel for the parties conceded that when the impugned order order was passed by the learned Judge of the High Court, the said suit was pending in the Court of Mr. Abdus Salam Civil Judge Ist Class, Lahore. In these circumstances, the above observations made against Ghulam Rasul Azhar in the impugned order or though prefixed with expression `prima facie, would not only be tantamount to condemning him unheard but they are likely to prejudice the fair trial of the suit filed by him against Mst. Ismat, which is pending in a civil Court at Lahore. The grievance made by Mst. Asghari Khanum is also understandable By the above observations made in the impugned order, it is clear that the learned Judge has expressed himself as to the merits of the case of the prosecution, with the result that not only would the trial Magistrate find it impossible to decide the case before; him in a fair and impartial, manner, but also that Mst. Asghari Khanum, in the event of the said case being dismissed, might be faced with the possibility of being prosecuted for having arraigned the respondents in a criminal Court. Khalid Javed Gillan v. The State is of no assistance to the respondents. It is true that the principle laid down therein is that while deciding a bail application, the Court has to tentatively assess all the evidence/material placed before it, but that would not mean that the Court would be empowered to condemn any person, who is neither a party to the case nor. has appeared as a witness during the trial, unheard. The High Court would have been well within its right to condemn Ghulam Rasul Azhar in case he had appeared as a witness for the prosecution in the trial Court and his evidence was found as false. But that stage had not arisen as yet, as admittedly he has not been examined by the trial Magistrate as a witness for the. prosecution. Reliance by the learned counsel for the respondents on Rao Muhammad Ashfag Khan v. The State (P L D 1963 S C 20) is also misconceived. In that case the petitioner was an Advocate of the West Pakistan High Court, and during the presentation of the case of his client, the learned Judges of the Division Bench took exception to his demeanour as well as to certain expressions used by him during the arguments, therefore, the learned Judges passed strictures against him in the judgment for the expungement of which strictures he filed a petition for leave to appeal but his petition was dismissed with the observations "that the words used were, or were intended to be, a challenge, was based on the whole of the Advocate's conduct including the tone of his voice, and so rested on the personal observation and impression of the Division Bench, excluding possibility of a judicial review. The observations were not outside the scope of the proceeding before the Division Bench. No final proceeding was commenced, and at the end, only a mild admonition was administered, which did not in law require a notice to show cause, by way of due process".' Notwithstanding these observations, however, it was observed in the same very judgment that "A judgment of a superior Court is a permanent and public document, and in this case, the Division Bench has approved the judgment for publication. Mr. R. M. Ashfaq Khan complains of the injury, anal we can well understand that it might have been avoided, .if before recording these remarks, the learned Judges of the Division Bench had given him an opportunity, in Court 'or in Chamber, to explain what he meant by the words or the tone, he .had employed. But, as we have already said, we cannot see that we have power to give Mr. R. M. Ashfaq Khan the relief he seeks, that is, expungement of the observations made concerning him, in the circumstances of this case". The learned counsel for the respondents, however, argued that the petition filed by Ghulam Rasul Azhar is barred by 77 days, for which delay, however, he has not furnished any satisfactory explanation. Ghulam Rasul Azhar has, alongwith the petition, filed an application under Order XLIX; rule 6 of the Rules of this Court praying for the condonation of the delay; if any, on the ground that since he was not a party to the proceedings it the High Court, he came to know of the impugned order subsequently and immediately filed an application for certified copy of the impugned order, It is a matter of record that he applied for the certified copy of the impugned order on 11-10-1979; the copy was prepared on 15-10-1979; the copy was delivered to him on the same day, i. e. 15-10-1979; and he filed the leave petition in this Court on 23-10-1979. From the chronology of these dates, it appears to us that Ghulam Rasu1 Azhar was not negligent, and so the petition filed by him in this Court would have been within time if he had been a party to the proceedings before the High Court. We, therefore, feel satisfied about the explanation offered by him in the application seeking the condonation of the delay, if any, and accordingly the delay is condoned. Unlike civil litigation, in which after the expiry of the prescribed period of limitation, the opposite-party gets a vested right, in criminal cases generally the State cannot possibly claim the same privilege, as in the nature of things, it has to be impersonal having no other object in view than the fact that an accused should. have the full opportunity to defend. himself unhampered by the bar of limitation. It is for this reason that this Court has generally remained liberal, and condoned the dalay in criminal cases coming before it, In the case in hand, however, the objection raised by the learned counsel for the respondents- is rather technial inasmuch as the petition filed by Mst. Asghari Khanum is admittedly within time, and consequently if the same is allowed then the offending remarks contained in the impugned order, most of which concern both of them, will have to be expunged any way. The law in regard to the expungement of remarks from a judgment of a Court is laid down in Afalik Firoz Khan Noon v. The State (P LD 1958 S C (Pak.) 333). In that case on the complaint filed by Mr. Mushtaq Ahmad Gurmani, the Editor-in-Chief; and the Resident Editor of the `Times of Karachi', were tried by a learned Single Judge of the High Court under sections 500 and 501 of the Pakistan Penal Code who found them guilty and consequently sentenced them to a term of imprisonment as well as fine. In the judgment, however, certain strictures were passed against Malik Firoz Khan Noor., the Prime Minister of Pakistan, with the result that he came to this Court seeking the expungement of the said strictures on tile. ground that he was neither a party in the case nor had appeared as a witness in the proceedings. I. n the ultimate) judgment delivered by this Court. in which .tile whole law oil the subject was reviewed, the appeal of Malik Firoz Khan Noon was allowed, and the offending passages were ordered. to be expunged from the impugned judgment, with these observations "On the merits of the appeal, it would .be sufficient to say that the offending remarks in the impugned judgment, can be severed from it without injuring the integrity, were unnecessary for the disposal of the case, condemned the petitioner unheard and are surcharged with dangerous potentialities. They not only cast very damaging reflection on the petitioner who was neither a party nor a witness in the proceedings lading up to the judgment in, question, but would tend to prejudice his fair trial, if at all that opportunity for vindication is~ made available to him by the complainant in the defamation case. It is, therefore, meet and proper that the passages complained off should be expunged." The next question is whether the offending observations made in the impugned order in this case can be severed from it without injuring the integrity of the order itself. In other words are the offending observations so inter-twined with the rest of the contents of the order as to be inseparable from them without doing violence to the integrity of the order itself, or they can be conveniently severed from it without impairing the integrity of the order. It is our considered view that the offending observations in question are easily severable from the rest of the order, as they, were not only unnecessary for the disposal of the bail application by the learned Judge, but also that they do not form an integral part of the impugned order. In this h behalf, we would like to reproduce the impugned order, minus the offending passages appearing therein, to demonstrate that it would still remain unimpaired in its integrity and efficaciousness. Read in this manner, the order would read as under "It has been argued that the relations between the two spouses have become strained, and that Ch. Ghulam Rasul Azhar has sent a notice of divorce to petitioner No.

1. It is argued that Ch. Ghulam Rasul Azhar, husband of petitioner No. 1 has got this bogus case registered through his sister-in-law for pressurising the, petitioner No. 1 to transfer the house back to him. The Investigating Officer informs that there is no injury on the person of the complainant. The learned Assistant Advocate-General does seriously oppose the confirmation of my interim order passed yesterday, whereas the two learned counsel for the complainant contend that the interim bail was rightly not confirmed because the petitioners had not joined the investigation. A bare reading of the F.

1. R. makes it clear that the only allegation was one of abusing and catching hold of the complainant by her tail. In this view of the matter the order directing the release of the petitioners on furnishing personal bonds in the sum of Rs. 100 each is, hereby confirmed." NOTE.-We have omitted to reproduce para. 6 of the order as it relates to a probe into the record of the Additional Sessions Judge, who had dismissed the bail application filed before him by the respondents. In this view, we convert both these petitions into appeals, allow the same and direct that the offending passages appearing in the impugned order would accordingly stand expunged. It seems to us that the words "in lieu of dower" appearing at pages 3 and 8 of the order of this Court have to be deleted. Apart from the fact that these words have no bearing on the questions which fell for consideration in the case ; they no not appear in any of the petitions or other documents filed by the petitioners. The obvious reason due to which these words crept in the order is that in Cr. P. S. L. A. No. 468/79, at page 2, the words "under duress" were written in hand, but the same were read as "in lieu of dower". The application is accordingly allowed as prayed. s. A. H. Applications allowed.