P L D 1964 (W (PLP)

The prosecution case against the three accused was that during the investigation of Crime No. 92 of 1960, it transpired that Com pensation Book No. 293189/Sukkur/7067 had been prepared on a false verification and adjustment made in the Office of the Settlement Authorities at Sukkur. An inquiry was conducted by the Inspector of the Nawabali Police Station on receipt of information, and the compensation book was secured from the Office of the Deputy Settlement Commissioner. Prosecution witnesses were examined. Other documents including the original claim filed of the claimants Fakir Muhammad and Lal Mohammad were secured from the Central Record Office, Karachi. It further transpired that the claim of the claimant Fakir Muhammad and Lal Muhammad had been dealt with by one Muhammad Ayub Qureshi. Muhammad Yusuf was the munshi of Muhammad Ayub Qureshi, an Advocate. The claim was passed for Rs. 2,459 and Rs.24,222, and the compensation book No.293189 was got prepared by Mohammad Yousuf through the co‑accused Abdul Jaffar and Fakir Muhammad by filing Form A, and having Abdul Jabar affix his thumb‑impression to the supporting affidavit. It must be mentioned here that Fakir Muhammad's real name was Ashraf. Muhammad Yusuf then introduced Fakir Muhammad alias Ashraf and Munna a Ibrahim @ Aftab, the absconding accused to brokers who were prosecution witnesses in the case bring P. Ws. Habib and Aziz and through them arranged for the sale of the Compensation Book to Haji Muhammad Yusuf and Mst. Aisha, assuring them that the compensation claim was genuine, and as a result of these deceitful assurances, obtained from them an amount of Rs. 6,162‑6‑

0. The result of the investi gation was that three accused were arrested and later challaued under the Martial Law Regulations then in force.

4. In the course of the trial, the learned S. D. M. framed four points for determination, and came to the conclusion against the accused before him on all these points, ultimately convicting them. He considered it necessary to add the offending remarks against the petitioner at the end of the judgment.

5. The grounds on which this application was urged are that the learned Magistrate did not question the applicant Rashid Akhtar in regard to the subject‑matter of his remarks. It was also urged that the learned S. D. M. on one hand believed the evidence of the applicant and the prosecution case in convicting Muhammad Yusuf and others, while on the other hand opined that Mr. Rashid Akhtar had given evidence against the accused in order to save himself, since he could not be definite if the accused Muhammad Yusuf had made him attest a bogus document. It was further urged that the document did not hold any circum stance to support the conclusion that Mr. Rashid Akhtar the applicant had knowingly attested the copy of a bogus document. It was explained that the judgment in the case was of the Claims Officer, Sukkur, and not of the Deputy Settlement Officer, and that it was the practice in the Settlement Office to accept a copy of the document duly attested by au Oath Commissioner, and that as such Mr. Rashid Akhtar as an Oath Commissioner had not acted wrongly in attesting a copy of the judgment. It is also urged that the remarks of the learned Magistrate to the effect that if the Investigating Officer had taken some pains he could have challaned Mr. Rashid Akhtar as an accused along with the other accused, and that this aspect should still be considered, was not warranted, and that this was done deliberately to dishonour the applicant, for had there been any evidence on record, the learned Magistrate himself could quite easily have joined him as an co‑accused after he had given evidence in the case. Finally, it was urged that these remarks, besides being unwarranted, were unnecessary and separable from the main judgment, and it was further urged that these remarks were mala fide as the learned Magistrate was unhappy on account of an application made by client of the applicant, Mst. Hasina Begum to the Chief Justice of the West Pakistan High Court making personal allegations against the learned Magistrate.

6. I have heard Mr. A. K. Brohi for the applicant and Mr. Mohammad Haleem for the State, and have been taken through the evidence recorded in the course of the proceedings, specially that of the applicant, Mr. Rashid Akhtar, which is at page 23 of the paper‑book. It is stated by the applicant that in October 1960, he was working as an Oath Commissioner, and on the 15th of October, Muhammad Yusuf brought an original verification order in the claim case of Fakir Muhammad along with typed copies of the same for attestation. He accordingly attested the copies and affixed his signatures and seal over them, and made an entry in his register. On the 8th of November, an identification parade of the accused was held in the District Jail, Sukkur, in the presence of the taluka Head Munshi of the jail, when he correctly picked out the accused. In cross‑examination, Mr. Rashid Akhtar stated that Yousuf was already known to him by name before the incident, but denied the contention that he had "attributed" the document to Yousuf immediately after it had been shown to him by the police. This deposition as recorded does not indicate that Mr. Rashid Akhtar was even questioned or a suggestion made on the matter on which the learned Magistrate has taken it upon himself to pass adverse remarks against him. Indeed, it appears that in the course of his judgment convicting Mohammad Yousuf and others, the learned Magistrate relied for his determination on points 1 and 2 on the evidence of Mr. Rashid Akhtar, referring to his clear statement that it was Yousuf who had brought the typed copy of the verification order and obtained copies thereof attested from him. Evidently this support of the testimony of the petitioner Mr. Rashid Akbtar would indicate that they learned Magistrate regarded him as a witness of truth and indeed that his testimony had convinced him.

7. In dealing with cases of this nature, the important judg ment in point is Malik Feroze Khan Noon v. The State (P L D 1958 S C (Pak.) 333) where their Lordships in the course of along and datailed judgment in the matter of an application of Malik Feroze Khan Noon, then Prime Minister of Pakistan, made certain very telling and definite remarks to the following effect. "If, therefore, a Judge in making in his judgment the observations to which objection was taken by the appellant transgressed the limits within which he was to function while deciding the case which was before him, or departed from the legal principle by which his power to make comments on the conduct of a person, who was not before him and to whom no opportunity was given to explain the circumstances appearing in the evidence against him, was barred there can be no doubt that a case for interference will have been made out. For otherwise the injury will remain un‑repaired and the appellant who was never given an opportunity to be heard will have no means of having the stigma on his character and reputation removed." In this case their Lordships of the Supreme Court in enter taining the appeal under Article 160, ordered deletion of certain remarks made in the course of the judgment in the High Court in relation to the appellant there who was neither a party nor a witness in the case before the High Court. At page 341 their Lordships farther observed that :‑ "In all cases which have come before the Courts, where an aggrieved person asks for expunction of objectionable remarks made against him in a judgment, one point has consistently been emphasized, namely, that a Judge ought not to make any disparaging remarks against a person who is neither a party nor witness in the case."

8. These remarks apply with great force indeed to the present case. The learned Magistrate has observed that the applicant had knowingly attested the copy of the bogus document and given rise to the commission of this office. From what I have seen, there is nothing in my view to support this opinion of the learned Magistrate as to the knowledge that the applicant could have had that the document produced was bogus. Indeed, the further remark that the applicant could have been challaned as an accused person is also entirely un‑called for and unjustified. If the learned Magistrate felt at any time in the course of the proceedings and after the applicant had given evidence that he should so exercise his powers, he could, provided material was available before him, have joined the applicant as a co‑accused in the case. Clearly the fact that he did not do so would indicate that there was no justification either for any action at that time or for the unwarranted condemnatory remarks against the applicant in violation of a fundamental principle of natural justice. There is besides evidence on the record through P. W. Jamaluddin, the Assistant Settlement Commissioner, Sukkur, to indicate that it was a practice of the Settlement Organisation to have documents of the kind involved in the present case attested by Oath Commissioners, and that these documents were accepted and relied upon. There was, therefore, no justification for the additional remarks that the petitioner as an Oath Commissioner did not have power to attest the judgment of the Court, as definite documents are to be attested by the Oath Commissioners mentioned in the list.

9. The learned A. P. P. supports this application, and agrees that the offending paragraph at the end of the judgment was unjustified, and uncalled for, and that the remarks should be expunged.

10. I am satisfied that this application must be allowed. I, therefore, order that the offending paragraph in the impugned judgment, which casts reflections upon the integrity and character of the petitioner, and can be conveniently served from the judg ment, be expunged. K. B. A./A. H. Petition accepted.