1994 P Cr (PLP)

Najam-uz-Zarnan, A.A.-G. for the State. Date of hearing: 20th October, 1993. The facts leading to the filing of this revision are that the petitioner was tried by the Senior Special Judge, Anti-Corruption, Punjab, Lahore for an offence under sections 409/420/468 and 471, P.P.C. After some of the prosecution evidence was recorded, the petitioner moved an application under section 249-A, Cr.P.C. for acquittal. The trial Court after giving notice of the application to the other side and hearing arguments from both the sides, vide its judgment, dated 16-8-1992, accepted the application and acquitted the petitioner. The trial Court, however, while parting with the case, observed that there was evidence on record which suggested that the petitioner was guilty of negligence in handling the stores during transportation and further observed that "notwithstanding their acquittal the administrative department shall, therefore, be at liberty to proceed against the accused departmentally in accordance with law". The petitioner takes exception to the said remarks and wants expunction of the same.

2. It was contended by learned counsel for the petitioner that an elaborate charge against the petitioner was framed wherein it was not alleged that petitioner was guilty of negligence or had caused loss of lacs of rupees to the department. Contends that the trial Court has condemned the petitioner for about same thing regarding which neither any charge had been framed nor he was given an opportunity to explain his position, therefore, the said observation of the trial Court cannot be sustained in law. Relied upon P L D 1950 Lab. 34 and A I R 1918 Bom. 241.

3. I have heard the learned counsel at length and gone through the evidence as well as the judgment impugned in detail. The trial Court had given a positive finding which would be of interest if reproduced:-- "

5. With this evidence on record, it cannot be said that bitumen had been stolen or pilfered although the loss has been caused to the State Exchequer by its leakage or usage during its carriage. The main offence with which the accused were charged was under section 409, P.P.C. under which the prosecution must establish the entrustment of goods and their misappropriation. Entrustment has indeed been proved but none supported the elements of misappropriation. So, therefore, this part of the charge has not been established against the accused. As regards the tampering of record and its forgery in respect of the leaked bitumen is concerned, there has been no evidence on record that it was done by Mr. Izhar Ahmad accused. Since this forgery at the hands of the accused has not been established the offence under section 420, P.P.C., therefore, clearly has not been proved. As the basic and fundamental accusation has not been proved there is no question of proof of offence under section 5(2)47, P.C.A. It appears from a perusal of the record that the prosecution have examined so far almost all the material witnesses. Even if the remaining evidence is recorded with the present state of evidence on record, there is no chance of the accused being convicted of the offence with which they are charged. I am, therefore, obliged to acquit them." A perusal of this paragraph clearly indicates that he was absolved of every responsibility about the charges framed against him. Thereafter, there was hardly an justification either to condemn the petitioner or give a positive finding that he was guilty of negligence specially in the absence of any notice to the petitioner. In the judgment cited as P L D 1950 Lah. 34, Mr. Justice Muhammad Munir, CJ. observed as under:-- "When a Judge decides to condemn a man whether a party or witness the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the Judge's suspicion about his conduct. A Judge, who condemns a man unheard acts as unfairly as if he were to convict a man without hearing him in his defence. The need for caution in making remarks is much greater where the person disparaged is a public servant acting in his own independent sphere. In such cases it is absolutely necessary that the Judge's suspicion about his conduct be communicated to him and an opportunity given to him to show cause against the view that the Judge is inclined to take of his conduct. If the officer concerned has not at all appeared before the Judge and has had no opportunity to vindicate himself, the Judge acts most unfairly, if not actually without jurisdiction, in commenting adversely on his conduct." Therefore, while relying upon the judgment cited above, the petition isl accepted and the remarks given in paragraph No.10 of the judgment are expunged. The petition is disposed of. N.H.Q./I-87/L Petition accepted.